Shae and Muldoon
[2017] FCCA 1411
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAE & MULDOON | [2017] FCCA 1411 |
| Catchwords: FAMILY LAW – Property – valuations in dispute – small asset pool – property owned overseas – contributions – s.75(2) factors – justice and equity. |
| Legislation: Family Law Act 1975, ss.75(2), 79 |
| Cases cited: Stanford & Stanford [2012] HCA 52 |
| Applicant: | MS SHAE |
| Respondent: | MR MULDOON |
| File Number: | ADC 973 of 2014 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 2, 3 March and 26 April 2017 |
| Date of Last Submission: | 26 April 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 23 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Read |
| Solicitors for the Applicant: | Southern Community Justice Centre |
| The Respondent: | In Person |
ORDERS
The property held in the name of the Applicant wife situate at (property omitted), (country omitted) be declared her sole property, free from any further claim by the Respondent husband.
The following real estate held in the name of the Respondent husband be declared his property, free from any further claim by the Applicant wife:
(a)the farming property situated at (country omitted);
(b)the property in (country omitted);
(c)his interest in the property situate at Property A in the State of South Australia.
Subject to paragraph 4 of these Orders, the wife retain the following items free from any further claim by the husband:
(a)all furnishings and household effects in her possession or control;
(b)her personal belongings;
(c)her motor vehicle;
(d)her gold jewellery; and
(e)any savings or investments.
Within 28 days the Applicant wife deliver up to the husband any of his personal belongings that remain in her possession including but not limited to:
(a)his snow skiing equipment;
(b)his (omitted) tools (nine pieces in nine original packs);
(c)his bicycles;
(d)photograph albums containing photographs of his childhood and extended family;
(e)his personal belongings including an old red suitcase and contents (being photographs, documents and collectables);
(f)one half of the family photographs, or digital copies of such photographs;
such items to be made available for collection at a neutral venue to be nominated by the wife’s solicitors.
The wife’s solicitors notify the husband in writing within 14 days identifying the husband’s personal belongings that the wife has located and the proposed collection arrangements.
Thereafter the husband retain the following items free from any further claim by the wife:
(a)all furnishings and household effects in his possession or control;
(b)his personal belongings;
(c)his motor vehicle;
(d)any savings and investments; and
(e)his superannuation entitlements.
The husband shall retain responsibility for all debts in his name and indemnify the wife in relation to such debts.
The wife shall retain responsibility for all debts in her name and indemnify the husband in relation to such debts.
All proceedings are dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym Shae & Muldoon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 973 of 2014
| MS SHAE |
Applicant
And
| MR MULDOON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties separated in 2014, after a marriage of approximately 20 years. They have been unable to reach agreement in relation to financial matters arising from the breakdown of their marriage and accordingly it falls to the Court to determine these issues.
Background
The husband was born in (country omitted) on (omitted) 1971 and is 46 years old. The Applicant wife was born in (country omitted) on (omitted) 1975 and is 42 years old. The parties married in (country omitted) in 1994.
The wife qualified as a (occupation omitted) and was employed in that capacity at the time the parties married. The husband was studying (qualifications omitted) and the wife supported the family while he completed his studies. The wife received financial support from her family including an inheritance from her mother’s estate.
The parties’ oldest child X was born on (omitted) 2000 and their second child Y was born on (omitted) 2008. Both parties undertook paid employment during the marriage. The husband was employed as an (occupation omitted) and often worked away from the family home.
In 2003 the wife purchased a small unit in (country omitted) where the family lived for two years. She sold this unit in 2004 and purchased an apartment at (property omitted) (“the (property omitted) apartment”). That property remains in the wife’s name. In addition the husband purchased rural properties in (country omitted), which he says were held in his name on behalf of a partnership. He also purchased another apartment in (property omitted) which was rented out.
In 2011 the parties decided to immigrate to Australia. They sold most of their assets, including the husband’s apartment in (country omitted) and brought cash savings of approximately $75,000 to Australia. The bank records indicate that $41,000 was deposited into an account in the husband’s name, but these funds were quickly depleted and by February 2012 the balance in the account had reduced to approximately $10,000.[1]
[1] Exhibit W11, (omitted) Bank Statements account no. (omitted) in name of Mr Muldoon
The husband was able to obtain employment in the (omitted) industry as a (occupation omitted) and worked in Perth for a period of time. The wife was unable to obtain employment as a (occupation omitted) as her qualifications were not recognised in Australia. The wife undertook English language training with TAFE, to improve her chances of employment.
At the time the parties separated the parties owned very few assets of any significant value in Australia. The matrimonial asset pool at separation is as follows:
Assets:
a)(country omitted) apartment – wife’s estimate $74,000
b)Husband’s interest in two rural properties at
(country omitted) value in dispute
c)Furnishings and effects retained by wife value in dispute
d)Furnishings and effects retained by husband value in dispute
e)Wife’s jewellery value in dispute
f)Kia (omitted) motor vehicle (wife) value in dispute
g)Toyota (omitted) motor vehicle (husband) value in dispute
Liabilities at separation
a)Toyota Finance – estimate $17,000
b)Husband's (omitted) Visacard debt value in dispute
A significant issue between the parties relates to the wife’s allegations of ongoing family violence during the relationship, both in (country omitted) and Australia. She alleges the husband physically assaulted her and was also verbally and emotionally abusive towards her. She also alleges that the husband maintained relationships with other women during the marriage. The husband denies all of these allegations.
The wife alleges the husband sexually assaulted her in February 2014 and she was eventually able to seek police assistance on 16 March 2014. The parties separated finally on that date. The husband was charged with criminal offences and was held in custody for approximately two months. The charges were eventually withdrawn in 2015.
The wife commenced proceedings in this Court on 19 March 2014, seeking orders in relation to parenting issues and property settlement. A number of interim hearings occurred in relation to parenting issues, but I do not need to set out those details here. The parties were ordered to attend a Conciliation Conference on 12 November 2014 but were unable to reach agreement.
The parties experienced great difficulties in valuing the asset pool, given that the real estate assets are located in (country omitted). Numerous orders were made directing the parties to obtain valuations, including orders that they each nominate an agent in (country omitted), who would act on their behalf to instruct a single expert valuer. Both parties complain that the other party’s agent failed to co-operate and ultimately no joint valuations were ever obtained.
A directions hearing took place on 6 April 2016. Parenting and property settlement issues remained in dispute and, accordingly, the matter was listed for trial to 2 and 3 March 2017. To their credit, the parties were able to reach agreement in relation to parenting matters and final consent orders were pronounced on 5 October 2016.
The trial
Property settlement issues remained in dispute and the trial commenced on 2 March 2017. The hearing did not conclude in the two days allocated and was adjourned to 26 April 2017. Evidence and submissions were concluded on that date and the proceedings were adjourned to a date to be fixed for judgment.
The wife has been legally represented throughout these proceedings. Most of her Affidavits have been deposed with the assistance of a translator, but at the time of her trial Affidavit her understanding of written English had improved and she no longer required an interpreter in that regard. Nonetheless, she still relied upon an interpreter to assist her during the trial process.
The husband has represented himself throughout these proceedings. He is fluent in English as well as (language omitted) and has generally not required the assistance of an interpreter, but did request interpreter support for the trial process. Given the formalities and technical language that the trial process involves, that request was granted.
The wife relied upon her trial Affidavit and Financial Statement both filed on 23 February 2017, together with a range of financial records that were tendered during the hearing. The husband relied upon his trial Affidavit and Financial Statement filed 24 February 2017 and also tendered a range of financial documents during the trial.
The technicality of the courtroom and her language barriers made it more difficult for the wife to participate in the trial process, but I am satisfied she presented her evidence honestly and to the best of her recollection. While there were occasions when the wife appeared to misunderstand a question, any confusion or uncertainty was generally able to be rectified promptly.
The husband is very well educated but it is inevitably more difficult for a self represented litigant to conduct a trial. The husband was able to present evidence to support his case before the Court, but was less successful in disputing the wife’s case or challenging her allegations. I am satisfied that the husband gave his evidence honestly and to the best of his recollection.
Legal principles
The relevant legal principles governing any application for property settlement are set out in Part VIII of the Family Law Act 1975. Section 79(1) authorises the Court to make such orders between the parties as it considers appropriate. Section 79(2) makes it clear that the Court cannot make an order for property settlement unless it is just and equitable to do so. The High Court noted in Stanford & Stanford[2] that this condition is generally met where the parties have separated, because “the common use of property” by the parties is no longer viable.
[2] Stanford & Stanford [2012] HCA 52 at para.42
In considering the terms of any such order, s.79(4) requires the Court to take into account the parties’ contribution to the maintenance and acquisition of the asset pool during the marriage, including direct and indirect financial contributions, direct or indirect non-financial contributions and any contribution to the overall welfare of the family, including in the capacity of homemaker or parent.
Section 79(4)(d) directs the Court to consider the impact of any proposed order upon the earning capacity of either party. Section 79(4)(e) refers the Court to the matters set out in s.75(2), factors that generally relate to each party’s future needs.
The High Court in Stanford & Stanford went on to identify three “fundamental propositions” to guide trial Judges determining property settlement proceedings. These propositions were summarised by the Full Court in Bevan & Bevan[3] as follows:
“1.Determination of a just and equitable outcome in an application for property settlement begins with the identification of the existing legal and equitable interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.The determination that a party has a right to a division of property fixed by reference only to the matters in s.79(4), and without separate consideration of s.79(2), would erroneously conflate what are distinct statutory requirements.”[4]
[3] Bevan & Bevan [2013] FamCAFC 116
[4] ibid, at para.73
In determining any application for property settlement, the Court is not embarking upon an arithmetical exercise but rather an examination of all the relevant factors set out in s.79(4). Earlier Full Court authorities have identified a four step process that can assist the Court in reaching a just and equitable decision.[5]
[5] Lee Steere & Lee Steere (1998) FLC 91-626;
Assuming the Court is satisfied that it is just and equitable to make an order for property settlement, the Court must identify the parties’ legal and equitable interests in the assets arising from their relationship, together with their liabilities. The Court should then assess each party’s contributions during the relationship in accordance with s.79(4)(a)-(c).
The third step requires the Court to consider the range of factors set out in s.79(4)(d)-(g), including the future needs factors identified in s.75(2). The Court should then consider its findings and, if the Court is satisfied that it is just and equitable to do so, make orders adjusting the parties’ property interests.
The Full Court in Bevan reminded trial Judges that the “four step process” is not legislatively mandated. Rather, it provides a structured process towards the ultimate requirement, which is to ensure that a property settlement order is only made when the Court is satisfied that it is just and equitable to do so and that the terms of the order itself are also just and equitable.[6]
[6] Bevan & Bevan, supra, para.86
Matrimonial asset pool
The parties were generally able to identify the relevant matrimonial assets but were unable to agree upon the valuation of any items. Both parties struggled to present reliable valuation evidence to the Court, particularly in relation to their real estate holdings in (country omitted). Both parties were cross-examined at length in relation to the various appraisals and valuations they sought to rely upon.
Real Estate in (country omitted)
Both parties obtained appraisal or valuation reports in relation to the (property omitted) apartment. The husband obtained an Appraisal Report dated 20 July 2014, which valued the property at (omitted). This report was prepared by a civil engineer, apparently on behalf of (country omitted) Bank, not on behalf of the husband. The husband had the report translated and a legible copy of the translation is annexed to an earlier Affidavit filed by the wife.[7]
[7] Wife’s Affidavit filed 6 January 2017, Annexure S
The wife subsequently obtained a statement from the translator, Mr M, to the effect that his translation of the Appraisal Report had been made on “untruthful information” provided by the husband and therefore his translation was and is invalid.[8] More importantly however, the report is titled as an appraisal, not a valuation. It appears to have been prepared on behalf of a third party, (country omitted) Bank. Both factors undermine the reliability of this document in these proceedings and I decline to place any weight upon this appraisal.
[8] Ibid, Annexure S
The wife has raised similar concerns in relation to a range of other documents translated by Mr M on behalf of the husband.[9] The husband denies that he provided untruthful information and argues that Mr M was pressured by the wife’s family to withdraw his original translations. Neither party made any arrangements to call either the engineer who prepared the appraisal or the interpreter, Mr M. In the circumstances I am unable to make any finding that the husband provided “untruthful information” to the valuer – as the wife claims, or that the wife somehow ‘pressured’ Mr M – as the husband claims.
[9] Exhibits W23 – W27
The wife then obtained her own valuation of the property dated 28 December 2015.[10] The report was prepared by an engineer described as “(omitted)”. The report concludes with the expert evaluating the apartment at (omitted).
[10] Wife’s Affidavit filed 6 January 2017, Annexure S Translation and Valuation Report
I do not consider any of the valuation evidence to be particularly reliable, given that none of the report writers were available for cross examination. However, the report relied upon by the wife seems closer to an expert valuation report, whereas the husband’s document is clearly described as an appraisal.
In the circumstances, I prefer the wife’s estimated value and find that the (property omitted) property is valued at (omitted) or approximately $74,000.
The husband is the legal owner of two properties in (country omitted), located in (country omitted). The wife alleges the husband owns a further property at (country omitted) but the husband denies this. He was not cross examined on this point and I conclude there are only two properties in the husband’s name, located at (country omitted) and (country omitted).
The husband gave evidence that he holds these properties on behalf of a partnership group. He tendered a translated copy of the Partnership Agreement that was translated by Mr M on 17 March 2015.[11] The wife argues that Mr M has withdrawn this translation as well. I am unable to place any weight on the translation of the Partnership Agreement, but I accept the husband’s evidence on this topic. I am satisfied that the husband’s original partnership share of 71% was reduced to 11% in 2009, when he received a payout from the partnership. I find that he holds the (country omitted) properties on behalf of the Partnership.
[11] Exhibit H6, Articles of Partnership between the husband and three other partners
The husband says these properties are valued at approximately $27,000 in total and his share, based on the Partnership Agreement, is 11%, or $2,970. The only valuation evidence was provided by the wife, in the context of another statement from the translator, Mr M again withdrawing the validity of his translated appraisal report in relation to the (country omitted) property.[12] That appraisal report valued the property at (omitted). Again, the report is described as an appraisal. It is not clear who the report was provided for and its reliability is in question.
[12] Exhibit W23, Appraisal letter dated 22 April 2017
In the absence of any reliable valuation evidence, I am unable to allocate a value to these properties, but I accept the value of the husband’s interest would be modest.
Household contents & jewellery
The husband argues that the wife has retained household contents in Australia worth approximately $5,000 and household contents in the (property omitted) apartment in (country omitted) worth approximately $20,000. Clearly the wife’s household contents in Australia must have some value and I will allocate the sum of $5,000 in that regard.
In relation to household contents in the (property omitted) apartment, I note the parties sold up most of their belongings prior to immigrating to Australia. This property has since been rented out and the wife gave evidence that the remaining furnishings were minimal. In the circumstances I decline to allocate any value to any furnishings and effects in (country omitted).
The wife’s inheritances
The wife has retained jewellery that she inherited from her mother with a value of $2,476.[13] The husband claims that the wife owned additional jewellery, but I accept the wife’s evidence that the remaining jewellery was sold during the marriage.
[13] Exhibit W28, Schedule of Assets and Liabilities
The husband says that the wife received an inheritance from her father’s estate, with an estimated value of $12,000. The wife acknowledges that in 2015 she received an inheritance from her father’s estate to the value of $6,172.[14] The wife gave evidence that her brother Mr E used a portion of her inheritance to undertake improvements to the (country omitted omitted) apartment and she ultimately received the balance of her entitlement, in the sum of approximately $3,000. I accept the wife’s evidence on this topic.
[14] Wife’s trial Affidavit, Annexure S
The wife has since used those funds to purchase the Subaru (omitted) motor vehicle now owned by her and valued at approximately $7,000. Presumably the wife sold the Kia (omitted) motor vehicle.
The Toyota (omitted) & associated debt
The husband owns a Toyota (omitted) motor vehicle that was purchased during the marriage. The parties disagreed about the value of this vehicle, but no evidence was presented to the Court. In the absence of any reliable evidence, I accept the husband’s estimated value of $11,000.
The parties purchased the vehicle for approximately $17,000, through Toyota Finance. The husband retained the vehicle and responsibility for the loan repayments after separation. He has since paid out the balance of the loan, in the sum of approximately $9,000, with funds he borrowed from his current wife.
The husband argues that the original Toyota Finance debt should be treated as a matrimonial liability and the wife should make some contribution to the debt. The husband has had use of the Toyota vehicle since separation. While the debt was incurred during the marriage I conclude it is reasonable that he assume responsibility for this debt, given he has retained the motor vehicle.
Rental income from the (property omitted) apartment
The husband argues that the wife’s rental income earned from the (country omitted) apartment should be included as a matrimonial asset but I disagree. The (country omitted) apartment is rented out for approximately $270 per month . The husband argues the rental income is $1,000 per month, based on a letter from the wife’s solicitors, but I accept the wife’s evidence that her solicitors misunderstood her instructions and this letter was incorrect.
The wife gave evidence that she receives payments every two to three months and those sums equate to approximately $70 per week. The payments are forwarded by her brother who manages the (country omitted) apartment for her. She also gave evidence that her brother has sent additional payments, particularly to assist with X’s school fees at (omitted) School. The wife tendered various bank statements showing payments forwarded to her from (country omitted) and I accept those bank statements largely support her evidence.
The wife has generally worked in low paid employment and otherwise is reliant on Centrelink benefits. In the circumstances it is reasonable that she would use the rental payments to supplement her income and I decline to include these payments in the asset pool.
Superannuation
The husband holds nominal superannuation with (omitted) Super, valued at $3,316. The wife has no superannuation.
Liabilities
The husband sought to include three other debts – a (omitted) Bank visa card debt in the sum of $5,174 and two utility bills: one for the wife’s mobile telephone plan and an electricity account in the sum of $714. I am satisfied the husband paid these accounts, but consider this is a modest contribution to the household expenditure of the wife, who was otherwise providing solely for the support of the parties’ two children. I decline to include these two accounts as matrimonial debts.
In relation to the (omitted) Bank Visacard account, the parties separated in March 2014. The husband provided a (omitted) Bank Visacard statement showing that the opening balance of the account on 12 April 2014 was $4,536.[15] This is clearly a matrimonial liability and I accept the husband has paid this debt but again, this represents a very modest contribution by the husband, who is not otherwise paying child support.
[15] Exhibit H3, (omitted) Bank Visa Statement for the period 12 April 2014-12 May 2014
I therefore find the matrimonial asset pool at trial is as follows:
Assets
Wife's (country omitted) apartment (estimate) $74,000
Husband’s interest in (country omitted) property not known
Husband’s interest in (country omitted) property not known
Wife’s household contents in Australia (estimate) $5,000
Wife’s gold and jewellery (estimate) $2,430
Wife's Subaru (omitted) motor vehicle (estimate) $7,000
Husband's (omitted) Toyota motor vehicle (estimate) $11,000Husband’s superannuation $3,316
Estimated asset pool $102,746
Liabilities
(omitted) Bank Visa card debt (since paid by husband) $4,536
The husband seeks an order that wife deliver up any of his personal effects that she still holds, together with a selection of family photographs. This topic was not raised during the trial, but I am satisfied the wife should deliver up any of the husband’s personal effects that remain in her possession.
Contributions
Both parties worked whilst living in (country omitted). The wife says that the husband made little direct financial contribution to the family as he directed his earnings elsewhere, either to provide financial support to his extended family, to support other women with whom he had established de facto relationships, or towards his failed business ventures.
The husband argues that he earned a greater income than the wife and supported the family from this income. He agrees that financial assistance was provided to both parties’ extended families, from time to time. He denies the wife’s other allegations.
On balance, even if the husband did waste money as alleged by the wife, she concedes that he was still able to contribute approximately $50,000 at the time the parties migrated to Australia. I am satisfied both parties made a direct financial contribution and to the savings that they brought with them to Australia.
The wife has made a greater contribution by way of homemaker and parent. The husband worked away for periods of time whilst the parties were living in (country omitted) and the wife was solely responsible for X and Y during those times. The wife maintained the role of primary homemaker and parent after the family migrated to Australia and the children have continued to live primarily in her care since the parties separated in March 2014.
I conclude that the parties’ financial contributions during their marriage are likely to have been equivalent. The wife has made a greater financial contribution since separation by way of her support of the children. She has also made a direct financial contribution to the (country omitted) apartment but it must be noted that she has retained all of the income from that property. The husband has paid out the Toyota Finance debt and the credit card debt, which also represents a direct financial contribution by him after separation.
In all of the circumstances, I consider the parties’ financial contributions should be deemed equivalent but find the wife has made a significantly greater contribution in the role of homemaker and parent overall. I assess the parties’ contributions as 60% to the wife and 40% to the husband.
The wife argues that the husband was violent towards her during the relationship, both in (country omitted) and in Australia. She argues that her contributions were made much more onerous because of the husband’s violent and controlling behaviour and seeks a “Kennon adjustment”[16] on account of the husband’s violence.
[16] Kennon & Kennon (1997) 22 FamLR 1
The husband made general denials in relation to the wife’s allegations of family violence but did not respond to particular incidents or allegations. I note the wife made a number of specific allegations of violent behaviour by the husband and provided a level of detail that adds weight to her allegations. However the wife needs to demonstrate not only that the husband behaved in a violent manner towards her, but that his behaviour had a discernible impact upon her own capacity to contribute to the marriage.
I am not satisfied the evidence is sufficient to justify such a finding and accordingly I decline to make any adjustment on account of Kennon factors.
Section 75(2) factors
Both parties are in their mid-40s and are in reasonable health. Both parties have tertiary qualifications, but the wife has been unable to pursue a (omitted) career in Australia. By contrast, the husband has been able to continue working as an (occupation omitted). He is presently employed at (omitted) and earns approximately $70,000 per year. The husband’s capacity to work full time is facilitated by the wife’s ongoing care of the children.
The wife has been able to obtain limited employment, largely as a (occupation omitted). She has studied at TAFE and improved her English language skills, but she is not as fluent as the husband and is unlikely to resume a professional working life in Australia.
The wife has the ongoing parenting responsibility for X and Y. X attends (omitted) School and the wife has been responsible for all of his tuition fees at that school. Y is only nine years old and is still in primary school. I take into account that the wife wishes to maintain her role as primary caregiver. While the father spends regular time with the children, his parenting role is limited, due to his employment commitments and the distance between Adelaide and (omitted).
The wife lives alone with the children and is presently in receipt of Centrelink benefits. The husband has not paid child support since the parties separated.
The husband is living together with his partner and they have jointly purchased a property in Property A. The husband owns a 50% share in this property, which he values at $390,000 and holds a mortgage in the sum of $344,000, leaving him with a modest equity.[17]
[17] Husband’s Financial Statement filed 24 February 2017
The wife gave detailed evidence about her (occupation omitted) career in (country omitted). She was initially able to take extended leave without pay from her employment, but eventually lost that opportunity and was deemed to have abandoned her contract of employment. The wife gave evidence that because she had abandoned her employment, she may lose any future superannuation or pension entitlements that she would otherwise have been entitled to receive upon her retirement.
The wife clarified that she could pursue these entitlements, but only if she returns to live in (country omitted), which she does not intend doing. The wife is unlikely to acquire significant superannuation entitlements into the future, given her limited employment opportunities in Australia.
The husband’s financial outlook is much stronger. He is able to earn a reasonable income, which is one of the most valuable benefits that a party can retain after separation. The husband will continue to accumulate superannuation and has the considerable advantage of having entered the property market. He has prioritised his mortgage repayments over any contribution to the support of his two children.
Taking all of these matters into account, I conclude that a significant adjustment of 20% should be made in the wife’s favour on account of her future needs.
Conclusion
The matrimonial asset pool available for division between the parties is very modest. At this point the wife would retain 80% of the matrimonial asset pool and the husband would retain 20% of the asset pool, to the approximate value of $20,500.
The wife has very limited income and resides in rental accommodation with the two children. She has no capacity to take out a loan secured against her property in (country omitted) and she would struggle to obtain a personal loan here in Australia. I note the wife was able to borrow funds to purchase her motor vehicle, but she borrowed these funds from (omitted) and Centrelink, not from a private financial institution. If the wife was required to make a cash settlement to the husband, she would need to sell the property in (country omitted) and would lose the modest income stream that this property provides to her.
As discussed above, the husband is employed and earns a reasonable income. He has been able to enter the property market together with his partner and has acquired a modest equity in his Property A property. He also retains his property holdings in (country omitted), although the value of this real estate could not be determined.
Section 79(2) specifies that the Court must not make an order altering the parties’ interests in the matrimonial property, unless the Court is satisfied that it is just and equitable to make such an order. The High Court in Stanford & Stanford made it clear that this is a separate step in addition to the Court’s considerations pursuant to s.79(4).
While the husband may have a modest claim for a property settlement, this entitlement would be small, comparative to his income and existing assets. Should the wife be required to sell the (country omitted) property, this would have a significant negative impact upon her financial circumstances. I conclude this negative impact upon the wife’s financial situation greatly outweighs the modest benefit to the husband’s overall financial circumstances.
Taking into account all of the above findings, I conclude that it is not just and equitable to make any further order altering the parties’ interests in property. I conclude that each party should retain the assets they presently hold, with no further adjustment between them.
I now make orders as published at the commencement of these Reasons.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Date: 23 June 2017
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143;
In the Marriage of Omacini (2005) 33 Fam LR 134
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
Legal Concepts
-
Remedies
-
Costs
-
Res Judicata
0
2
2