Stilo & Jones

Case [2024] FedCFamC1F 459


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Stilo & Jones [2024] FedCFamC1F 459

File number: HBC 593 of 2023
Judgment of: MCGUIRE J
Date of judgment: 11 July 2024
Catchwords: FAMILY LAW – PROPERTY - Application for the alteration of property interests – where the applicant seeks a 50/50 per cent distribution of the property in her favour – where the respondent’s primary position is no alteration of the parties property interests – lengthy de facto relationship of some 23 years – contributions – add-backs – orders that there be a 55/45 per cent division of the parties net property in favour of the respondent where the Court is satisfied in the circumstances that the division is just and equitable giving proper consideration and weight to the various contributions and the current circumstances of each of the parties
Legislation: Family Law Act 1975 (Cth) ss 79, 90SF(3) and 90SM(4)
Cases cited:

Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91

Gadhavi & Gadhavi [2023] FedCFamC1A 117

Jabour & Jabour (2019) FLC 93-898

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Standford v Standford (2012) 247 CLR 108

Division: Division 1 First Instance
Number of paragraphs: 51
Date of hearing: 5 July 2024
Place: Hobart
Counsel for the Applicant: Mr Trezise
Solicitor for the Applicant: Butler McIntyre & Butler
Counsel for the Respondent: Mr Guest
Solicitors for the Respondent Ian Guest & Associates, Solicitors

ORDERS

HBC 593 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS STILO

Applicant

AND:

MR JONES

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

11 JULY 2024

THE COURT ORDERS THAT:

1.The net property pool of the parties be distributed as to the Respondent, Mr Jones (“the respondent”) fifty five (55) per cent and forty five (45) per cent as to the Applicant, Ms Stilo (“the applicant”), in accordance with these Orders.

2.Within sixty (60) days from the of this order the applicant shall transfer to the respondent all her right, title and interest in the property situate at B Street, Town C in Tasmania, more particularly described in Certificate of Title Volume … Folio … (“the Town C Property”) and the respondent shall be solely responsible for the payment of all amounts payable in respect of any mortgage payments for the property and all rates, taxes and insurance and any other outgoings and shall indemnify and keep indemnified the applicant.

3.Contemporaneously with the transfer of the property in Order 2 herein the respondent shall pay to the applicant the sum of $218,983.33.

4.In the event the respondent fails, is unable or unwilling to make a cash adjustment to the applicant as set out in Order 3 herein then the Town C Property be forthwith listed 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 Tasmania with the respondent to do all things necessary to co-operate with the sale…

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AGLC
Stilo & Jones [2024] FedCFamC1F 459
Case
[2024] FedCFamC1F 459
Decision Date

CaseChat Overview and Summary

Ms Stilo applied for an alteration of the property interests accumulated during her de facto relationship with Mr Jones. The parties were in a relationship for 23 years, during which they accumulated a net property pool. The applicant sought a 50/50 per cent distribution of the property in her favour, while the respondent's primary position was no alteration of the parties' property interests. The court had to consider the various contributions of the parties during the relationship, including the initial contributions by the respondent and the contributions by each party over the course of the relationship.

The court examined the contributions and circumstances of the parties, including the contributions made by the applicant during the relationship and her being the primary income earner for about nine years between 2002 and 2011. The court also considered the current circumstances of each party, including their ages, employment history, and financial situation. The court determined that a 55/45 per cent division of the parties' net property in favour of the respondent was just and equitable, given the various contributions and circumstances of the parties.

The court ordered that the net property pool of the parties be distributed as to the respondent 55 per cent and 45 per cent as to the applicant. The respondent was ordered to pay the applicant $218,983.33 within sixty days from the date of the order. If the respondent failed to make the cash adjustment, the Town C Property was to be listed for sale by an agreed agent, and the proceeds of the sale were to be divided between the parties in accordance with the order. The applicant was to retain certain assets, and the respondent was to retain certain other assets. Each party was to be solely responsible for any liabilities attaching to any asset retained by that party.

The court dismissed all extant property and financial applications between the parties, except for any costs applications, which were to be dealt with in accordance with the Family Law Rules 2021 (Cth). The parties intended that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

Orders

Orders of the court

HBC 593 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS STILO

Applicant

AND:

MR JONES

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

11 JULY 2024

THE COURT ORDERS THAT:

1. The net property pool of the parties be distributed as to the Respondent, Mr Jones (“the respondent”) fifty five (55) per cent and forty five (45) per cent as to the Applicant, Ms Stilo (“the applicant”), in accordance with these Orders.

2. Within sixty (60) days from the of this order the applicant shall transfer to the respondent all her right, title and interest in the property situate at B Street, Town C in Tasmania, more particularly described in Certificate of Title Volume … Folio … (“the Town C Property”) and the respondent shall be solely responsible for the payment of all amounts payable in respect of any mortgage payments for the property and all rates, taxes and insurance and any other outgoings and shall indemnify and keep indemnified the applicant.

3. Contemporaneously with the transfer of the property in Order 2 herein the respondent shall pay to the applicant the sum of $218,983.33.

4. In the event the respondent fails, is unable or unwilling to make a cash adjustment to the applicant as set out in Order 3 herein then the Town C Property be forthwith listed 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 Tasmania with the respondent to do all things necessary to co-operate with the sale and the respondent pay and indemnify the applicant from payment of all liabilities falling due in relation to the property including but not limited to mortgage repayments, rates, land tax, water charges and levies.

5. The Town C property be offered for sale at a price recommended by the agent and that the parties prudently sign any unconditional contract for the sale at a price equal to or above that nominated by the agent from time to time.

6. The proceeds of the sale of the Town C Property be paid as follows:

(a) the discharge of any mortgage and or other encumbrances affecting Town C Property;

(b) the reasonable costs and disbursements on the sale of the Town C Property including the solicitor’s costs and the agent’s costs;

(c) to pay any rates, land tax water charges and levies outstanding in respect of the Town C Property; and

(d) the remaining net proceeds shall be divided between the parties so as to effect a settlement of the net property of the parties pursuant to the Reasons herein as to fifty five (55) per cent to the respondent and as to forty five (45) per cent to the applicant.

7. The applicant shall retain the following to the exclusion of the respondent:

(a) any superannuation entitlements where the applicant is named as the worker and/or beneficiary;

(b) any savings, monies in bank, investments of shares held in the applicant’s sole name or under her exclusive control;

(c) any furniture, household effects and chattels in the possession or control of the applicant;

(d) any insurance or assurance policy naming the applicant as the beneficiary; and

(e) Motor Vehicle 2 in the applicant’s possession.

8. The respondent shall retain the following to the exclusion of the applicant:

(a) any superannuation entitlements where the respondent is named as the worker and/or beneficiary;

(b) any savings, monies in bank, investments of shares held in the respondent’s sole name or under his exclusive control;

(c) any furniture, household effects and chattels in the possession or control of the respondent;

(d) any insurance or assurance policy naming the respondent as the beneficiary; and

(e) Motor Vehicle 1 in the respondent’s possession.

9. Each of the parties be solely responsible for and indemnify the other in respect of the following:

(a) any liabilities attaching to any asset retained by that party pursuant to these orders; and

(b) any and all liabilities incurred by that party since separation in either joint names or that party’s name alone.

10. There be liberty to the parties or either of them to apply to the Court generally in respect of the execution of these Orders including but not limited to the sale of the Town C Property.

11. Pursuant to s 90ST of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

12. All extant property and financial applications be dismissed except costs applications between the parties, if any, which are to be dealt with in accordance with the Family Law Rules 2021 (Cth).

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).

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

Background

Background to the litigation

Nevertheless, and after appropriate concessions by the respondent during his short cross-examination, and apparently oblivious to the position put during counsel’s opening and in his own Case Outline, by the time of closing submissions he was offering a cash adjustment to the applicant of $100,000 which I am told and accept would constitute a division of the property pool as to 77 per cent to the respondent and 23 per cent to the applicant.BACKGROUND The applicant is 65 years of age. She was employed in the healthcare sector for the duration of the relationship until taking a redundancy in 2011. The respondent is 76 years of age. He was employed as an educator during the relationship until late 2020. He resigned receiving a $10,000 payout for entitlements and commenced employment, for the next two years, with D Company. He voluntarily left that employment at or around the end of 2002. The parties were in the de facto relationship between 1998 and July 2021. There are no children of this relationship. The respondent has been on an age pension since about 2013. The applicant has been on a disability support pension since about 2012. In July 2003 the respondent paid out his existing mortgage of $75,650 using his superannuation funds. In late 2011, the applicant received a redundancy from her employment in City E of $41,771. In early 2015 the applicant received an inheritance of $80,555.53. In early 2016 the applicant received a lottery win. Since separation the respondent has had the sole use and occupation of the property at B Street, Town C. The applicant has moved and pays rent for her residence.ISSUES The parties agree the content and value of the property pool, the major issue is as to the weight to be afforded the various contributions of the parties during the relationship of some 23 years duration, with reference to the far superior initial contributions made by the respondent by reason of his equity in the property at Town C, as against the myriad of contributions by each of the parties during the course of the relationship, including the specific contributions by the applicant mentioned above and the applicant being the primary income earner for the household for about nine years between 2002 and 2011.RELEVANT LAW The Court is given power to alter the interests of parties in property at section 79 of the Family Law Act 1975 (Cth) (‘the Act’). ‘Property’ is to include assets and liabilities with amendments to the Act providing that ‘superannuation may be treated as property’. It is well-established that the discretion in the Court to alter property interests is a broad one limited only by the statute itself. In R v Watson: Ex parte Armstrong[3] footnote reference (1976) the High Court noted: … The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.[3] [1976] 136 CLR 248 at [257].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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