Singleton and Singleton

[2017] FCCA 2103

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGLETON & SINGLETON [2017] FCCA 2103

Catchwords:
FAMILY LAW – Property – post separation contributions – overall assessment of what is just and equitable.

Legislation:

Family Law Act 1975, ss.75, 79, 90MT, 106A

Cases cited:

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91

Russell & Russell (1999) FLC 92 – 877

Scott & Danton [2014] FamCAFC 203

Stanford v Stanford (2012) 247 CLR 108

Teal & Teal [2010] FamCAFC 120

Applicant: MS SINGLETON

Respondent: MR SINGLETON

File Number: DUC 258 of 2016

Judgment of: Judge Obradovic

Hearing date: 16 May 2017

Date of Last Submission: 16 May 2017

Delivered at: Parramatta

Delivered on: 5 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Spain

Solicitors for the Applicant: Kenny Spring Solicitors

Counsel for the Respondent: Ms Christie

Solicitors for the Respondent: King Cain Solicitors

ORDERS

1. Within 28 days the Husband shall pay to the Wife the sum of $172,608.

2. The funds held by King Cain Solicitors in the controlled moneys account on behalf of the parties, being the proceeds of the (omitted) Super death benefit, be divided equally between the parties, and for that purpose the parties shall forthwith do all acts and things necessary to authorise and direct King Cain Solicitors to do so.

3. Upon payment of the sum referred to in paragraph 1 above the wife is to do all acts and things necessary and sign all such documents as may be required to transfer to the husband, at his cost, all of her right, title and interest in the real property situated at and known as Property A, New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier (omitted).

4. The husband be solely liable for and indemnify the wife in respect of the debt to the husband’s employer ((omitted)) currently in the sum of $8,189 incurred by the husband for funeral and printing expenses for the late Ms L.

5. In accordance with section 90MT(4) of the Family Law Act1975, a base amount of $19,140 be allocated to the wife out of the husband’s interest in (omitted), member number (omitted).

   (a)In accordance with section 90MT(1)(a) of the Family Law Act1975:

   (i)The wife (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001; and

   (ii)The entitlements of the Husband in (omitted) (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) are correspondingly reduced by force of this order.

   (b)The trustees of (omitted) Super (“the trustees”) shall do all such acts and things and sign all such documents as may be necessary to:

   (i)Calculate, in accordance with requirements of the Family Law Act 1975 the entitlement awarded to the wife in the immediately preceding clause of this Order; and pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the (omitted) Super.

   (c)This order has effect from the operative date and the operative date is the beginning of the seventh day after service of the sealed orders on the trustee of the relevant fund.

   (d)After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS regulations.

   (e)It is noted that:

   (i)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and

   (ii)Any payments from the husband’s superannuation interest in the (omitted) Super made after the trustees have created a new interest in the wife’s name in the (omitted) Super are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.

6. In accordance with section 90MT(4) of the Family Law Act1975, a base amount of $15,000 is allocated to the wife out of the husband’s interest in (omitted)  – Personal Super Plan, member number (omitted).

   (a)In accordance with section 90MT(1)(a) of the Family Law Act1975:

   (i)The wife (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (ii)The entitlements of the Husband in the (omitted)  – Personal Super Plan (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) are correspondingly reduced by force of this order.

   (b)The trustees of (omitted)  – Personal Super Plan (“the trustees”) shall do all such acts and things and sign all such documents as may be necessary to:

   (i)Calculate, in accordance with requirements of the Family Law Act 1975 the entitlement awarded to the wife in the immediately preceding clause of this Order; and

   (ii)Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the (omitted)  – Personal Super Plan.

   (c)This order has effect from the operative date and the operative date is the beginning of the seventh day after service of the sealed orders on the trustee of the relevant fund.

   (d)After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations1994 (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS regulations.

   (e)It is noted that:

   (i)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and

   (ii)Any payments from the husband’s superannuation interest in the (omitted)  – Personal Super Plan made after the trustees have created a new interest in the wife’s name in the (omitted) portfolio – Personal Super Plan are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.

7. The husband and wife otherwise be declared to have sole right title and interest in:

   (a)Any chattels, goods or other property which are at the date hereof in their possession respectively;

   (b)Any superannuation, money, shares and debentures which stands in their sole name respectively as at the date hereof; and

   (c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders or any other indebtedness standing in that party’s name.

8. Each party do all such acts and things and sign all documents necessary to give effect to these orders.

9. If either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to give effect to these orders, the Registrar of the Federal Circuit Court Parramatta is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

10. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Singleton & Singleton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DUBBO

DUC 258 of 2016

MS SINGLETON

Applicant

And

MR SINGLETON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant wife and the Respondent husband are in dispute in relation to the question of property adjustment orders.

2. At the date of hearing, the wife is 52 years old and the husband is 54 years old.

3. The parties commenced living together in approximately 1989 and were married in (omitted) 1990. The parties separated for some 16 to 18 months in 1993 and recommenced their relationship in 1994.

4. During the parties’ relationship they purchased one property being the former matrimonial home at Property A, New South Wales.

Documents relied upon

1. The wife relied upon the following documents:

   a)Further Amended Initiating Application filed 27 April 2017;

   b)Affidavit of Ms Singleton filed 21 April 2017;

   c)Financial Statement of Ms Singleton filed 21 April 2017; and

   d)Case outline document filed 12 May 2017.

2. The husband relied upon the following documents:

   a)Amended Response to Initiating Application filed 20 April 2017;

   b)Financial Statement of Mr Singleton filed 21 April 2017;

   c)Affidavit of Mr Singleton filed 21 April 2017;

   d)Affidavit of Ms J filed 20 April 2017;

   e)Affidavit of Mr M filed 3 April 2017; and

   f)Affidavit of Mr G filed 10 May 2017.

3. The husband and the wife were both cross-examined.

4. The following documents became Exhibits in the proceedings:

   a)Exhibit 1 – Receipt dated 23 May 2016 for a chest of drawers in the amount of $599

   b)Exhibit 2 – Valuation Report of Mr R dated 6 January 2017; and

   c)Exhibit 3 – Joint letter from Mr M and Mr R dated 24 April 2017.

Pool of Assets

1. The parties agreed to the following:

Ownership		Description			Wife’s value	Husband’s value
ASSETS
1	Joint	Property A, NSW			$350,000	$315,000
2	Joint	(omitted) bank account number (omitted)			$2	$2
3	Joint	(omitted) bank account number (omitted)			$0	$0
4	Husband	(omitted) bank account number (omitted)			$2,123	$4,123
5	Husband	(omitted) bank account number (omitted)			$128,598	$128,598
6	Wife	(omitted) bank account number (omitted)			$35	$134
7	Wife	(omitted) bank account number (omitted)			$1,407	$1,407
8	Wife	(omitted) bank account number (omitted)			$3,039	$3,039
9	Wife	Household contents			$500	$500
10	Husband	Household contents			$15,000	Nominal
11	Husband	Toyota (omitted) registration number (omitted)			$4,500	$1,000
12	Husband	Holden (omitted) registration (omitted)			$9,500	$1,000
13	Wife	Ford (omitted) registration number (omitted)			$1,500	$3,000
14	Wife	Holden (omitted) registration number (omitted)			$1,500	-
15	Wife	(omitted) bank account number (omitted)			$0	-
16	Husband	Tools			$1,870	$1,870
17	Joint	Estate of the late Ms L – Death Benefit ((omitted) Super)			$205,142	$205,142
Total		$724,716	$664,815
SUPERANNUATION
Member		Name of Fund	Type of Interest		Wife value	Husband’s value
18	Husband	(omitted) Super	Accumulation		$23,905	$23,905
19	Husband	(omitted) Super	Accumulation		$4,205	$4,205
20	Husband	(omitted) Super	Accumulation		$56,717	$56,717
21	Wife	(omitted) Retirement Bond	Accumulation		$11,234	$11,234
22	Wife	(omitted) Super	Accumulation		$322	$322
23	Wife	(omitted)	Accumulation		$7,055	$7,055
Total		$103,438	$103,438
LIABILITIES
Ownership		Description		Wife value	Husband’s value
24	Joint	Mortgage – (omitted) Bank Home Loan		$156,860	$156,860
25	Husband	(omitted) Mastercard		-	$191
26	Husband	Funeral Expenses		-	$8,189
Total		$156,860	$165,240
TOTAL NET:		$671,294	$603,013

Overall Approach

1. The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 (Cth) was set out by the High Court in Stanford v Stanford,[1] where their Honours stated:

   [1] [2012] HCA 52; (2012) 247 CLR 108

   [37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

   …

   [40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4) …

2. Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[2], Chapman & Chapman[3] and Scott & Danton[4].

   [2] [2014] FamCAFC 19

   [3] [2014] FamCAFC 91

   [4] [2014] FamCAFC 203

3. In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the common use of property by the parties.

4. Both parties seek orders as to the division of property and in particular both parties urge it upon the Court that in all of the circumstances it is just and equitable to make an order adjusting the property interests of the parties. It is appropriate that the Court do so.

5. Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.

6. The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]

   [5] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120

7. The just and equitable requirement is “one permeating the entire process”[6].

   [6] Bevan supra at [86]

Contributions

1. At the commencement of the hearing, the parties presented to the Court a joint position that the parties’ contributions to the time of separation were equal. The Court accepts this consent position. There is then disagreement about post-separation contributions as well as the value of the former matrimonial home.

2. This is a particularly sad matter. Apart from the former matrimonial home, the only other major asset of the parties is cash, comprising of death benefits paid through three different superannuation trustees in respect of the death of the parties’ older child, who passed away at age 23, in (omitted) 2014.

3. The parties commenced cohabitation in 1989 and were married in 1990.

4. Their first child Ms L was born on (omitted) 1991.

5. The parties separated for approximately 16-18 months in 1993, recommencing their relationship in 1994 and moving into rented premises in (omitted).

6. On (omitted) 1994 the parties’ second child Ms J was born.

7. The parties purchased Property A, in 2004 for approximately $97,000. The entirety of the funds for the purchase were borrowed, whether by way of mortgage or a private interest-free loan for the deposit.

8. The parties separated in late October or early November 2013, when the wife moved out of the former matrimonial home. Both children for the most part remained living with the husband post separation. The wife was assessed for child support in respect of Ms J and paid same in accordance with the assessment.

9. After Ms L passed away, the trustee of (omitted) Super paid a death benefit of $201,157.32 to the husband in June 2015. Those monies have been retained in a controlled monies account. During submissions made on behalf of the husband, it was submitted that there was now an agreed position that these funds ought to be divided evenly between the parties.  

10. The parties were divorced on 24 September 2015.

11. On 16 December 2015, the trustee of (omitted) Super paid, in equal amounts to the husband and wife each, half of $100,386.77 being Ms L’s death benefit payable under that superannuation policy.

12. On 29 July 2016, the wife commenced proceedings in the Federal Circuit Court for property adjustment orders.

13. On 25 January 2017, the trustee of (omitted) Super paid to the husband a death benefit in the amount of $113,158 being Ms L’s death benefit payable under that superannuation policy. Those funds remain in the husband’s personal bank account. It was submitted on behalf of the husband that the wife did not make any contribution to those monies, but that the husband had by virtue of being an ‘inter-dependent’ as found by the trustee of the relevant fund. However, it was conceded that the Court is not bound by the trustee’s determination of to whom the death benefit should be paid to.

14. A sore point for the husband is the payment of funeral expenses for Ms L. Despite receiving an insurance policy payout, the wife did not utilise those funds to pay for the funeral. It was the husband’s employer who did so. On the husband’s evidence, which the Court accepts, such moneys are to be repaid.

Assessment of contributions

1. The Court accepts the submission made by the parties in respect of contributions up to separation, and assesses those contributions at 50/50.

2. As between the parties, the husband has had the sole use and occupation of the former matrimonial home post separation. He has made all of the mortgage repayments since the date of separation, and has been responsible for the maintenance and upkeep of the property.

3. The children of the marriage, albeit one of them was an adult, for the most part, continued to live with the husband post separation, with Ms J continuing to do so to this day.

4. The wife on the other hand, has had to find accommodation elsewhere and has not had the benefit of living in the former matrimonial home.

5. The Court accepts that on balance, the husband made greater contributions post separation, and assesses those at 3%. Compared to the length of the parties’ relationship and the contributions during that relationship, the period post separation was fairly short and the husband’s post separation contributions as such are limited. He also obtained the benefit of living in the home.

Section 75(2) Factors

1. The parties are of similar ages. They each appear to have their own health issues however, no expert evidence was before the Court in respect of any effect on the parties’ earning capacities or other as a result of those health issues.

2. The husband has a greater earning capacity than the wife. While part of his earnings have been as a result of working overtime and at various penalty rates, he maintains the capacity to continue to work in that manner. It is something that was available to him and which he took advantage of during the parties’ relationship and continued to do post separation.

3. The wife has a more limited earning capacity, given her limited work experience, skills and years out of the labour market due to the division of labour within the household during the parties’ relationship.

4. It was submitted on behalf of the husband, that he continues to have a moral obligation towards the parties’ daughter and their grandchild. The daughter of course has been an adult for over two and a half years. The Court considers that both parties have a moral obligation towards their daughter and grandchild, and finds that both of them have supported the daughter and grandchild since the daughter reached majority, to varying degrees. Ms J has a better relationship with her father than she does with her mother. This is a matter for her. She is an adult and has an obligation to maintain herself and her child. The Court does not, in its discretion, make any adjustment arising out of any moral obligation towards the daughter and grandchild in either parties favour.

1. The Court assesses a 7% adjustment in the wife’s favour due to 75(2) factors.

The value of the home and motor vehicles

1. There are two competing expert opinions as to the value of the former matrimonial home. They are $35,000 apart. Both experts were cross-examined.

2. Both experts were able to support the conclusions each of them reached in their respective reports. Neither of the experts was moved in respect of their opinion. In all of the circumstances, and given the different opinions of two qualified experts, the Court finds that the value of the property is in the range of $315,000 to $350,000. For that reason, the Court assesses, for the purpose of these proceedings, the value to be the average of the two amounts, namely $332,500.

3. There is also disagreement between the parties about the various vehicles they each have. Some evidence was called in this regard. Having heard from the parties and the witness, the Court assesses the values to be:

   a)Motor vehicles in wife’s possession, custody or control: $3,000

   b)Motor vehicles in husband’s possession, custody or control: $3,000

The Pool

1. In determining the pool, the Court has disregarded various assets of nominal value, such as joint bank accounts or where the balance is less than $200. The Court has also disregarded the parties’ household contents as there are no expert valuations about what either party currently holds.

2. The Court determines that the pool consists of the following assets and liabilities, with corresponding values being ascribed to them by the Court:

Ownership		Description				Value
ASSETS
1	Joint		Property A, NSW			$332,500
2	Husband		(omitted) bank account number (omitted)			$4,123
3	Husband		(omitted) bank account number (omitted)			$128,598
4	Wife		(omitted) bank account number (omitted)			$1,407
5	Wife		(omitted) bank account number (omitted)			$3,039
6	Husband		Motor Vehicles			$3,000
7	Wife		Motor Vehicles			$3,000
8	Husband		Tools			$1,870
9	Joint		Estate of the Late Ms L – Death Benefit ((omitted) Super)			$205,142
10	Husband		(omitted) Super	Accumulation		$23,905
11	Husband		(omitted) Super	Accumulation		$4,205
12	Husband		(omitted) Super	Accumulation		$56,717
13	Wife		(omitted) Retirement Bond	Accumulation		$11,234
14	Wife		(omitted) Super	Accumulation		$322
15	Wife		(omitted) Super	Accumulation		$7,055
LIABILITIES
16	Joint		Mortgage – (omitted) Bank Home Loan		$156,860
17	Husband		Funeral Expenses		$8,189
TOTAL NET:						$621,068

Overall

1. Having assessed the parties’ contributions and 75(2) factors, the Court finds that the overall adjustment is 54% in the wife’s favour and 46% in the husband’s favour is just and equitable in all of the circumstances.

2. This means that the wife will retain $335,376 worth of assets and the husband will retain $285,692 worth of assets in the manner described further below.

3. Both parties seek different superannuation splitting orders. Neither party addressed the Court on the appropriateness of the orders sought in their cases. The superannuation splitting orders which the husband seeks see the wife retaining 51% of the superannuation assets. While the pool is treated as a single pool for the purposes of property adjustment orders, the splitting orders which the husband seeks are convenient in terms of the adjustments, and will only require a small additional cash adjustment to make up the 54% which the Court deems just and equitable overall.

4. The husband is to receive:

Asset/Liability	Value
Property A, NSW	$332,500
(omitted) bank account number (omitted)	$4,123
(omitted) bank account number (omitted)	$128,598
Motor Vehicles	$3,000
Tools	$1,870
Monies in controlled monies account - Death Benefit ((omitted) Super)	$102,571
(omitted) Super	$8,905
(omitted) Super	$4,205
(omitted) Super	$37,577
Mortgage	($156,860)
Funeral Expenses	($8,189)
Payment to Wife	($172,608)
TOTAL NET:	$ 285,692

1. The wife is to receive:

Asset/Liability	Value
Cash Payment from Husband	$172,608
(omitted) bank account number (omitted)	$1,407
(omitted) bank account number (omitted)	$3,039
Motor Vehicles	$3,000
Monies in controlled monies account - Death Benefit ((omitted) Super)	$102,571
(omitted) Super	$15,000
(omitted) Super	$19,140
(omitted) Retirement Bond	$11,234
(omitted) Super	$322
(omitted) Super	$7,055
TOTAL NET:	$ 335,376

1. For all of the reasons expressed, orders as set out at the forefront of these Reasons shall be made.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  5 September 2017