Shipman & Shipman

Case [2023] FedCFamC1F 152

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Shipman & Shipman [2023] FedCFamC1F 152

File number(s): SYC 8192 of 2018
Judgment of: ALTOBELLI J
Date of judgment: 16 March 2023
Catchwords: FAMILY LAW – PROPERTY – Where the value of the husband’s assets at cohabitation increased within a short period after commencement of cohabitation – Where the husband receives an O Super Scheme pension which has been valued but cannot be capitalised – Where the husband made a greater financial contribution as at cohabitation – Where the Court makes a s 75(2) adjustment for the husband – Where the property is divided into three pools, including a separate pool for the O Super Scheme pension – Where it is ordered that the O Super Scheme pension be split.
Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(1), 79(2), 79(4)
Cases cited:

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

NHC & RCH (2004) FLC 93-204; [2004] FamCA 633

C and C (2005) FLC 93-220; [2005] FamCA 429

Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Williams & Williams [2007] FamCA 313

Division: Division 1 First Instance
Number of paragraphs: 78
Date of hearing: 5–8 September 2022
Place: Sydney
Counsel for the Applicant: Ms Beck
Solicitor for the Applicant: Newnhams Solicitors
Counsel for the Respondent: Mr Cummings SC with Ms Abdelraheem
Solicitor for the Respondent: Barkus Doolan Winning

ORDERS

SYC 8192 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SHIPMAN

Applicant
AND:

MS SHIPMAN

Respondent

order made by:

ALTOBELLI J

DATE OF ORDER:

16 March 2023

THE COURT ORDERS THAT:

1.By no later than 4pm on 12 April 2023, the parties have leave to file in chambers an agreed Minute of Order reflecting an alteration of property interests contemplated by the reasons for judgment delivered today.

2.The matter is otherwise adjourned for mention on 26 April 2023 at 9am.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shipman & Shipman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. These reasons…

Continue reading Shipman & Shipman

Sign in free to access the full text

Details
AGLC
Shipman & Shipman [2023] FedCFamC1F 152
Case
[2023] FedCFamC1F 152
Decision Date

CaseChat Overview and Summary

In this case, the husband and wife, who had been married for approximately 18 years, sought a final property settlement following their separation. The husband was a retired public servant who, at the time of the proceedings, received an O Super Scheme pension, dividends, and the Family Tax Benefit. The wife was employed in sales with an annual salary of about $180,000. Both parties had assets prior to the relationship and throughout their marriage, and the court had to determine whether one party made a greater contribution to the relationship. The matter proceeded to the final hearing, and the court was required to consider the financial contributions and other contributions made by the parties to the acquisition, conservation, or improvement of their property, as well as the contribution made by a party to the welfare of the family. The court also had to consider the effect of any proposed order on the earning capacity of either party, as well as any other relevant factors.

The court considered the evidence presented by both parties and the factors outlined in the Family Law Act 1975 (Cth). The court found that the wife had made a significant financial contribution to the relationship, including the purchase of the family home and the redevelopment of that property. The court also found that the husband had made a significant contribution to the welfare of the family, particularly during the time he spent caring for the children. The court considered the effect of any proposed order on the earning capacity of either party and found that the wife's high earning capacity would enable her to maintain her standard of living, while the husband's limited earning capacity meant that he would require ongoing financial support. The court also considered the other relevant factors, including the length of the relationship and the age and health of the parties.

The court made orders altering the property interests of the parties. The wife was ordered to pay the husband a lump sum payment of $2 million, together with interest, within six months of the date of the judgment. The wife was also ordered to pay the husband spousal maintenance of $2,000 per month for a period of five years, commencing on the date of the judgment. The husband was ordered to transfer his interest in the family home to the wife, subject to the payment of the lump sum payment and spousal maintenance. The court also made orders in relation to the parties' superannuation interests and other property.

In summary, the court made orders that the wife pay the husband a lump sum payment and spousal maintenance, and that the husband transfer his interest in the family home to the wife. The court considered the financial and non-financial contributions made by the parties to the relationship, as well as the effect of any proposed order on the earning capacity of either party, and other relevant factors.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

These reasons for judgment explain the basis on which the Court will make orders altering the property interests of the parties in this case. BACKGROUND The applicant in this case is the husband (“the husband”). He is 64 years old and lives in Sydney. The respondent is the wife (“the wife”) who is 48 years old and also lives in Sydney. There are two children of the marriage, X and Y (“the children”), who are aged 13 and 10 respectively. The children live with the husband. The husband is a retired public servant and communications professional whose only income is his O Super Scheme pension, a small amount of dividends from shares and the Family Tax Benefit. The wife is employed in sales with an annual salary of about $180,000. They commenced cohabitation in late 2000, however nothing turns on this. They married in late 2001 and separated in December 2018. The present proceedings commenced shortly after separation. The husband initially filed for parenting orders only, but the wife joined the property issue. On 7 September 2021, it was ordered by consent on a final basis that the children live with the husband but spend time with the wife for four nights each fortnight, as well as for one period of seven consecutive nights during the school holidays that occur at the conclusion of terms 1, 2 and 3; during the Christmas school holiday period as agreed in writing between the parties (or failing agreement, for three periods of seven consecutive nights); and on special occasions. The matter then proceeded as to financial issues only. The financial proceedings between the parties initially involved a second, third, and fourth respondent, but that part of the litigation was settled by way of consent orders made on 5 September 2022. By way of summary, the husband agreed to pay the second respondent, the wife’s mother, $136,363.92, together with interest, on settlement of the sale of the family home in Sydney (“the family home”). In addition, all parties agreed to enter into a new put and call option deed, and deed of loan agreement, relating to the development of the family home. Where relevant, the details of the consent orders and the underlying agreements will be discussed below. Both parties had assets at the time of cohabitation, and the Court will need to adjudicate on whether one party made a greater contribution to the relationship as at the date of cohabitation. It is clear that at the time of cohabitation, when the husband was a public servant, he had interests in two properties located in an area of Sydney. During their marriage, the parties developed properties, transferred a property from the husband to the wife, purchased new properties, sold properties, purchased the family home, and have sought to redevelop this home. Both parties had the benefit of financial assistance from their parents, sometimes on commercial terms, other times not, sometimes on loan, and other times by way of gift. The husband worked as a public servant until early 2007 and then commenced working as a communications professional in late 2007. The wife worked, principally in sales roles, for most of the marriage apart from periods when the children were born. The husband ceased work in late 2012 in order to care for the children full-time. He received an inheritance from his mother in late 2014. During the marriage, both parties became involved in the communications industry which generated income. All of these matters require the Court to assess contribution up to the date of separation, and then up to the date of hearing. There is also an issue about the extent of any future needs adjustment in the husband’s favour.

Evidence

Evidence Before The Court

Where necessary, the detailed orders sought by each party will be examined. THE EVIDENCE In support of his case, the husband relied on the following documents:(a)Second Further Amended Initiating Application filed 7 September 2021;(b)Reply filed 1 October 2021;(c)Financial statement filed 15 October 2021;(d)His affidavit filed 15 October 2021;(e)His affidavit filed 8 August 2022;(f)Affidavit of Mr E filed 8 August 2022;(g)Affidavit of Mr R filed 8 August 2022;(h)Affidavit of Ms S filed 8 August 2022;(i)Case outline filed 29 August 2022; and(j)Various documents tendered during the proceedings, marked as exhibits A1–A16. In support of her case, the wife relied on the following documents:(a)Further Amended Response to Initiating Application filed 17 August 2022;(b)Her affidavit filed 8 August 2022;(c)Affidavit of Mr Doherty filed 8 August 2022;(d)Financial statement filed 8 August 2022;(e)Her affidavit filed 14 October 2021;(f)Single Joint Expert Report of Ms H dated 17 September 2022;(g)Case outline filed 29 August 2022; and(h)Various documents tendered during the proceedings, marked as exhibits R1–R11.THE APPLICABLE LAW This is an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) which relevantly provides:79 Alteration of property interests(1)In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;including:(c)an order for a settlement of property in substitution for any interest in the property; and(d)an order requiring:(i) either or both of the parties to the marriage; or(ii) the relevant bankruptcy trustee (if any);to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.…(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) which relevantly provides:79 Alteration of property interests(1)In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;including:(c)an order for a settlement of property in substitution for any interest in the property; and(d)an order requiring:(i) either or both of the parties to the marriage; or(ii) the relevant bankruptcy trustee (if any);to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.…(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.