Simonson and Mochtar (No 2)

[2017] FamCA 514

FAMILY COURT OF AUSTRALIA

SIMONSON & MOCHTAR (NO 2) [2017] FamCA 514

FAMILY LAW – CONSENT ORDERS - PROPERTY – application dismissed – not just and equitable

Family Law Act 1975

APPLICANT: Mr Simonson

RESPONDENT: Mochtar

FILE NUMBER: CAC 577 of 2017

DATE DELIVERED: 13 July 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: RMB Galland Elder

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The application for Consent Orders filed on 3 April 2017 is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simonson & Mochtar No.2 has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 577 of 2017

Mr Simonson

Applicant

And

Mochtar 

Respondent

REASONS FOR JUDGMENT

1. The parties seek the making of property orders.  Agreed terms have been filed under circumstances where firstly, the mother has moved overseas indefinitely.  Secondly, the father remains here and has the full-time care of all of the children of the relationship, B aged 10 and C aged five. 

2. The property of the parties includes E Street, D Town, which is jointly owned, which has a total value of $275,000.  There are two cars together worth $30,000, furniture and the like worth about $1,250, cash of about $600, shares of about $2,500 leaving a total pool, disregarding superannuation and liabilities, of about $310,000.  There are about $58,000 in liabilities leaving a net pool of about $250,000.  There is superannuation of about $175,000, leaving a total of $425,000 in the pool.

3. The superannuation is in the name of the husband.  The only other significant asset is the E Street, D Town property which is jointly owned by the husband and the wife.

4. The relationship commenced in August 2004 with separation occurring in 2014. 

5. The father brought into the relationship assets of about $260,000, including superannuation.  That is, he has contributed the bulk of the property to the relationship. 

6. The Consent Terms provide for an approximate 94 per cent division to the husband and 6 per cent division to the wife, as opposed to a current position as I calculated that the wife holds about 29 per cent of the assets of the marriage.  The orders make provision for the father to pay travel expenses for the wife in relation to her being able to spend time with the children, which he estimates will be about $10,000 per year.  This is a significant amount of payment that benefits the wife and the children however, in character it does not appear to be a division of the property.  It may have been able to have been characterised as spousal maintenance.  The father’s income is about $1,920 per week, the mother’s income seems uncertain but approximately at nil. 

7. In relation to these orders the Consent Terms were filed and requisitioned by the Registrar and have come before me. The concern in relation to the orders is whether or not they could be considered to be just and equitable. This Court is constrained in the power it has available to it to adjust property interests pursuant to s 79 of the Family Law Act 1975. In order to do so the Court must form a view firstly, that it is just and equitable to make an adjustment and secondly, that it is just and equitable to make this adjustment. The mother has received independent legal advice and discloses that she wishes to go ahead with the Consent Terms despite having been advised that the result would not be just and equitable.

8. The father has taken steps to urge the mother to seek more property than was agreed to in the original Consent Terms.  However, there has been no acceptance of those offers made by the husband.  He has done what he can do to try and bring the matter into a position where it might be considered to be just and equitable. 

9. The first step in relation to property proceedings is a consideration and identification of what the legal and equitable interests are that each of the parties holds in property.  There is then a consideration about whether or not it would be just and equitable to make any adjustment.  In this case there is good reason to make an adjustment, it would be just and equitable to make an adjustment because the arrangements that were in place while the parties were together, that is the mutual sharing of property and the mutual sharing of the responsibility of the children, have both been brought to an end.  They are now unable to share the property that they could previously, particularly as the wife has moved to Asia.  They are likewise unable to share the care of the children, again because the wife has moved to Asia leaving the husband with the full responsibility for the children and it seems, significant responsibility in seeking to maintain her relationship with the children.

10. I consider that it would be just and equitable to make an adjustment under the circumstances where the marriage has broken down and there has been a change in the underlying facts that shared the care of the children and the property.  However, is also necessary for me to be able to come to a conclusion that the division agreed to by the parties would be a just and equitable division. 

11. The material is not such as to allow me to come to that conclusion.  This is a 10 year marriage, they have raised two children together, the property division would see a reduction of the wife’s interest from approximately 29 per cent to approximately 6 per cent.  Despite the significant imbalance in terms of financial contributions, and the significant imbalance in terms of the responsibilities for the care of the children in the future, I cannot conclude that these orders would be just and equitable.  I acknowledge that failure to come to that conclusion imposes a degree of hardship upon the parties.  The husband has certainly taken significant steps to try and bring orders before this Court that could be made.  He is now left in a position where he is residing in property that is held in joint names, that I expect will cause difficulties for the parties in the future.  However, that is not sufficient to overcome the jurisdictional hurdle that is the requirement that the orders be just and equitable before they are made. 

12. Accordingly I dismiss the Application for Consent Orders.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 July 2017.

Associate: 

Date:  18 July 2017