STONE & WILSON

[2016] FamCA 636

FAMILY COURT OF AUSTRALIA

STONE & WILSON [2016] FamCA 636

FAMILY LAW – Final property orders — by consent — just and equitable — proper

APPLICANT: Ms Stone

RESPONDENT: Mr Wilson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: AYC 243 of 2016

DATE DELIVERED: 7 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

BY CONSENT IT IS ORDERED THAT

1.On or before 1 August 2016 the applicant wife pay to the respondent husband the sum of $10,000 in clear funds and contemporaneously with the payment the respondent husband do all acts and things necessary and sign all documents to transfer the property situate at B Street, C Town in the State of New South Wales (“the property”) to the applicant wife.

2.That contemporaneously with taking the transfer to her of the property the wife do all acts and things necessary to obtain a discharge of the mortgage currently affecting the property, as a consequence of which the husband will be released from any liability under the existing mortgage.

3.Otherwise, each party retain the property of which he or she stands possessed and the wife be responsible for all liabilities associated with and retain sole ownership of the business known as Company A and the husband retain his superannuation interests.

4.Otherwise, the application be and is hereby dismissed.

IT IS DIRECTED:

5.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file.

AND IT IS NOTED that these orders are to be sent to the husband at PO Box …, D Town, New South Wales, ...

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone & Wilson 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 MELBOURNE

FILE NUMBER: AYC 243 of 2016

Ms Stone

Applicant

And

Mr Wilson

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me on an application by the parties for final orders which would alter property interests between them. They are both self-represented. The matter has been conducted by telephone link between here and Albury. The information set out in the application for consent orders is sparse, to say the least. I understand why the Deputy Registrar referred the matter to me to make orders, under the de facto property provisions of the Family Law Act1975 (Cth) (“the Act”). I have been able to receive further information from the parties.

2. The parties live in New South Wales and have always done so.  The wife is 35 years of age, and the husband is 37 years of age. They commenced cohabitation in approximately July 2007, and separated in approximately March 2012. There are two children of the relationship, E who is eight years old and F, who is seven years old. In addition, the de facto wife’s children of earlier relationships are G, who is 14 year old, and H, who is nine years old.  The husband has a daughter, J, who is 10 years of age.

3. Together, the parties established a business called Company A. Seven years ago, it was transferred into the sole name of the wife. The context of that transfer was that the parties owed the Australian Taxation Office (“ATO”) some $42,000, and they entered into a scheme of arrangement whereby that debt would be in the name of the wife, and it would be repaid. There is approximately $8000 still outstanding in relation to that liability.

4. As to the value of the business, it was historically valued at $25,000. In real terms, it returns an income to the wife which she estimates in the vicinity of $120,000 to $130,000 per annum. It would, however, appear that it may be somewhat less, because the wife has an outstanding taxation liability in addition to the taxation liability which was compromised some years ago. The current taxation liability for the wife is approximately $70,000. The husband is employed by the wife as a technician. This is apparently a bona fide employment arrangement whereby the wife pays usual employee benefits to the husband, including superannuation, although neither party was able to tell the court how much the superannuation interest of the husband is. My impression is that it is modest, the wife says it is up-to-date.

5. In the last year the husband has earned approximately $65,000 in the employ of the wife. The asset which the parties have in their joint names is a property at B Street, C Town New South Wales. Approximately two months ago it was valued by a mortgagee bank in the sum of approximately $500,000. Owing on that property is a mortgage to the bank of $320,000.

6. There is the business to which I have earlier referred that is in the wife’s name, and will remain so. The proposal of the parties is that the wife will take over the mortgage which is currently registered over the property at B Street, and obtain a discharge that would release the husband from any indebtedness under that mortgage. The wife will refinance that debt of $320,000, and take a further $80,000. $70,000 of that will be paid to the ATO to clear the wife’s current indebtedness to them of $70,000, and $10,000 will be paid by the wife to the husband.

7. The operation of the orders to which the parties have agreed, and request that I make, is that the wife would retain the business, which appears to be of modest, if any, value, and an equity in the property of not more than $100,000, and the husband would retain $10,000 in cash.

8. The arrangements for E and F is that they live primarily with the de facto wife. The husband sees the children each Wednesday evening, and each alternate weekend, and for a week during the holidays, and otherwise sees them very regularly, if not on a daily basis, because of his proximity to the family. That means he also has the children for a good part of the long summer school vacation, which is more or less left up to the children and their siblings.

9. The alteration of property interests proposed by the parties is that the wife would retain not more than $100,000 of the equity, plus the modest business. The husband would retain $10,000. The parties did not have any windfalls or inheritances during the relationship, and I gather neither made any significant contribution at the beginning of the relationship or prior to the commencement of cohabitation.

10. It is said that the discrepancy between the moneys and assets to be retained by the wife and the husband is attributable to the fact that the wife has more or less primary care of the children. The husband has somewhat more portable income earning capacity.

11. I am satisfied that it is just and equitable for there to be an alteration of property interests between the husband and the wife, given the breakdown of their relationship.

12. As to whether the orders are proper, it seems to me that the asset pool is modest. The parties have entered into an arrangement with which they are content. Whereas in proportional terms the wife retains much more than the husband, it is in money terms not a huge amount, and it seems to me that given that the parties want to finalise their property interests in this way, they should be permitted to do so. Each should be able to obtain a degree of finality. Neither party has entered into an ongoing domestic relationship with anyone else, although they are each seeing other people.

13. The wife has obtained some specific legal advice in relation to her entitlements, the husband has not. However, when asked by me, the husband said that he is content to proceed with the settlement. He wants $10,000 now to acquire another property. He understands that he was entitled to obtain legal advice before today. He does not seek an opportunity to obtain legal advice now. I have cautioned him that this is a once and for all exercise, that he cannot return to Court saying that he would want more money later, and that he could not consider it likely that he would necessarily receive anymore by returning to Court and saying he did not receive legal advice when he should have.

14. I am satisfied that the agreement reached between the parties is within the realms of what is proper.  

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 July 2016.

Legal Associate:

Date: 8 August 2016