Federal Circuit and Family Court of Australia
(DIVISION 1)
Robertson & Wells [2022] FedCFamC1F 1046
File number: MLC 12423 of 2021 Judgment of: MCGUIRE J Date of judgment: 23 December 2022 Catchwords: FAMILY LAW - PROPERTY – De facto relationship – Where the parties agree there was a de facto relationship for the purposes of Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’) – Where the parties sought a property settlement pursuant to s 90SM of the Act - Modest property pool – Add-Backs – Orders made that property pool be distributed in the proportion of 42.5 per cent to the applicant and 57.5 to the respondent Legislation: Family Law Act 1975 (Cth) ss 90SM, 90SM(3) and (4) Cases cited: AJO & GRO (2005) FLC 93-218
C & C [ 1998] FamCA 143
Clauson & Clauson (1995) 92-595
Kowaliw & Kowaliw (1981) FLC 91–092
Lovine & Connor & Anor [2012] FLC 93-515
M & M [1998] FamCA 42
Petruski & Balewa [2013] FamCAFC 15
R v Watson; Ex parte Armstrong (1976) 136 CLR 248-257
Stanford & Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Division: Division 1 First Instance Number of paragraphs: 65 Date of hearing: 15 and 16 December 2022 Place: Melbourne, delivered in Hobart Counsel for the Applicant: Ms Paull Solicitor for the Applicant: Haven Legal Co. Counsel for the Respondent: Mr McFie Solicitor for the Respondent: Patford-Smith Legal Services ORDERS
MLC 12423 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ROBERTSON
Applicant
AND: MS WELLS
Respondent
order made by:
MCGUIRE J
DATE OF ORDER:
23 december 2022
THE COURT ORDERS THAT:
1.The net property of the parties inclusive of superannuation be divided as to 57.5 per cent to the respondent, Ms Wells, and 42.5 per cent to the applicant, Mr Robertson.
2.The property situated at B Street, Suburb D, Victoria (“the Suburb D property”) be forthwith placed on the market for sale by an agent agreed between the parties and failing agreement by an agent nominated by the president or delegate of the Real Estate Institute of Victoria.
3.The Suburb D property be offered for sale at a price recommended by the agent and that the parties prudently sign any unconditional contract for sale at a sale price equal to or above that nominated by the agent from time to time.
4.The proceeds of sale of the Suburb D property be paid as follows:
(a)the reasonable costs and disbursements on the sale; and
(b)the balance to be put towards any mortgage liability secured by the Suburb D property or with collateral security of the property situate at C Street, Suburb E, Victoria.
5.The applicant elect within 21 days of the date of these orders as to whether or not to he wishes to retain the property situate at C Street, Suburb E, Victoria (“the Suburb E property”) within the ambit of his entitlement pursuant to these orders and, if so, then:
(a)within 42 days of…
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CaseChat Overview and Summary
In the Family Court of Australia, the case of Robertson & Wells addresses a dispute between Ms Wells, the respondent, and the applicant regarding the division of their property pool. Ms Wells argues for a 70 per cent distribution of the property pool, inclusive of superannuation entitlements, to her and 30 per cent to the applicant. She contends that there should be a 15 per cent loading in her favour due to superior initial and post-separation contributions, as well as a 5 per cent loading based on the s 90SF(3) factors, particularly the superior earning capacity of the applicant. The applicant, who is 49 years old and works as a professional and entertainer, disputes the respondent's claims regarding his income and contributions during the relationship. The respondent, aged 55 and employed as an allied health professional, argues that her contributions and her memory issues should be taken into account in the division of the property pool.
The court was required to decide on the appropriate division of the property pool, inclusive of superannuation entitlements, between the parties. This involved considering the contributions made by each party, the length of the relationship, and the factors outlined in s 90SF(3) of the Family Law Act. The court had to assess the evidence presented by both parties regarding their contributions, income, and the valuation of the properties. Additionally, the court needed to determine whether the respondent's memory issues and the applicant's perceived underreporting of income should influence the division of the property pool.
The court determined that the property should be divided on a "one-pool" basis, inclusive of superannuation entitlements, and found that a further adjustment of 5 per cent in favour of the respondent was appropriate. The court concluded that the respondent should receive 57.5 per cent of the property pool, while the applicant would receive 42.5 per cent. The court took into account the contributions made by each party, the length of the relationship, and the factors outlined in s 90SF(3), ultimately finding that the proposed division was fair and just.
The final orders of the court divide the property pool, inclusive of superannuation entitlements, as to 57.5 per cent to the respondent and 42.5 per cent to the applicant. This decision reflects the court's consideration of the contributions, income, and other relevant factors in the case.
The court was required to decide on the appropriate division of the property pool, inclusive of superannuation entitlements, between the parties. This involved considering the contributions made by each party, the length of the relationship, and the factors outlined in s 90SF(3) of the Family Law Act. The court had to assess the evidence presented by both parties regarding their contributions, income, and the valuation of the properties. Additionally, the court needed to determine whether the respondent's memory issues and the applicant's perceived underreporting of income should influence the division of the property pool.
The court determined that the property should be divided on a "one-pool" basis, inclusive of superannuation entitlements, and found that a further adjustment of 5 per cent in favour of the respondent was appropriate. The court concluded that the respondent should receive 57.5 per cent of the property pool, while the applicant would receive 42.5 per cent. The court took into account the contributions made by each party, the length of the relationship, and the factors outlined in s 90SF(3), ultimately finding that the proposed division was fair and just.
The final orders of the court divide the property pool, inclusive of superannuation entitlements, as to 57.5 per cent to the respondent and 42.5 per cent to the applicant. This decision reflects the court's consideration of the contributions, income, and other relevant factors in the case.
Orders
Orders of the court
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Background
Background to the litigation
The respondent, Ms Wells, argues for a 70 per cent distribution of the property pool, inclusive of superannuation entitlements, to her and 30 per cent to the applicant. She says that there should be a 15 per cent loading to her on account of superior initial and post separation contributions together with a 5 per cent loading on a consideration of the s 90SF(3) factors with emphasis on the superior earning capacity of the applicant.Background The applicant is 49 years of age and the respondent is 55 years. The applicant works as a professional and is also an entertainer. His sworn financial statement discloses a gross income of approximately $81,500 per annum, although the respondent argues that his income capacity is far more where his income during the relationship was nearer $120,000 per annum and further supplemented by his work as an entertainer. The respondent is employed as an allied health professional with an income of approximately $42,000 per annum. The parties met in 2004 and commenced cohabitation about 2008. They separated in 2020. There are no children of the relationship although the respondent has two daughters from a previous relationship who may have lived with the parties for short periods. In 2007 or 2008 the parties purchased a block of land at C Street, Suburb E. The title to the property was registered solely in the name of the applicant thereby entitling him to the First Home Owner’s Grant of $12,000. The respondent contributed approximately $81,500 from her property settlement with her former husband towards the purchase. The parties attended a solicitor and a document was drawn and signed noting the contributions by the parties being $81,500 by the respondent and $6,500 together with the First Home Owner’s Grant of $12,000 by the applicant. The document then recites an agreement whereby the applicant would forthwith for 15 years make contributions equivalent to two thirds of the leading mortgage instalment liability and as to one third for the respondent thereby creating equality of interest in the property after 15 years. The mortgage loan in respect of the Suburb E property was refinanced and drawn down from credit amounts on a number of occasions during the relationship including for the parties to establish a business around the husband’s entertainment business and involving some capital purchases. The former matrimonial home was built on the Suburb E property and completed in about 2008. In mid-2015 the parties purchased an investment property being a property at B Street, Suburb D at a purchase price of $515,000 plus costs and financed by the investment loan totalling E$570,000. The Suburb E property provided co-collateral for the purchase of the Suburb D property. The Suburb D property was tenanted but has been vacant since late 2021 due to problems requiring rectification such that it has not yet been completed. The parties agree that the value of the Suburb D property is substantially less than the purchase price and where there are now arrears owing under the mortgage of some $55,000 with the mortgagee bank anticipating proceedings for recovery of the property and its debt.
Evidence
Evidence Before The Court
There remains some issue between the parties as to the content of the property pool and valuations but, in particular, where each of the parties argues for specific “add-backs” to the pool.The evidenceThe applicant The applicant relied on two Affidavits dated 23 November and 12 December 2022 with the latter being an affidavit in reply. He also relied on his Amended Financial Statement sworn 22 November 2022. The applicant gave evidence and was cross-examined. He presented as unsophisticated but generally honest in his evidence albeit with some naïveté as to the process under s 90SM of the Act. I observed the applicant to be keen to emphasise what he perceived to be his own contributions as against those of the respondent. His evidence as to him leaving his long-term employment which brought him an E$120,000 per annum for his current employment at an E$81,500 per annum and coincidentally with these proceedings was less than persuasive although not successfully challenged. Similarly his evidence as to his earnings from his employment as an entertainer was again not persuasive and perhaps understated.The Respondent The respondent relied on her Trial Affidavit the sworn 6 December 2020 together with an Amended Financial Statement sworn the same day. The respondent gave evidence and was cross-examined. She was not an impressive witness as to her relevant memory recall. She too presented as extremely naïve as to the process under s 90SM of the Act to such an extent that her presentation was at times unconvincing and deliberately affected. She prevaricated and deflected frequently in her responses in cross‑examination. The respondent also relied on an affidavit of her brother, Mr F, sworn 19 October 2020 but where objection was taken to that affidavit being read into evidence where nevertheless, the parties were able to agree a “Statement of Agreed Facts” in respect of [6] and [12] of that affidavit which provides as follows:[6]In 2011 [the applicant] wanted to build [an extension] at the former matrimonial home. I was paid $7,100 to construct the frames of two small rooms for the [extension] and ensure they were [fit for purpose].[12]Upon separation between [the applicant] and [the respondent], I attended the former matrimonial home at [the respondent’s] request to keep the peace whilst [the applicant] attended the property to remove his property. He stripped out with a friend the [extension] of all items - all that was left was the display cabinet.The relevant law The power to alter the interests of parties in properties is provided at s 90SM of the Act where “property” includes both assets and liabilities with superannuation to be “treated as property” although usually not crystallised in the sense of a tangible asset. The broad discretion in the Court allows consideration of property to be on a “one-pool” basis including both tangible property and superannuation or, alternatively, where superannuation is considered separately than the tangible property. Given the quantum of superannuation entitlements, the length of the relationship and the likelihood of such entitlements being accrued during the relationship, I determine to deal with the property on a “one-pool” basis.
Decision
Reasons for decision
In all of these circumstances, and again taking into account the quantum of the property pool where the Court is to give some sense of “reality” to these considerations[10] I am of the view that there should be a further adjustment to the respondent of 5 per cent of the property pool.[10] Clauson & Clauson (1995) 92-595.conclusion Consequently, there will be orders which divide the property pool on a one-pool basis, inclusive of superannuation entitlements, as to 57.5 per cent to the respondent and 42.5 per cent to the applicant.
Ratio Decidendi
Legal Principle Established
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