Tatum & Brydon

Case [2024] FedCFamC1F 430

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tatum & Brydon [2024] FedCFamC1F 430

File number(s): PAC 4798 of 2022
Judgment of: RIETHMULLER J
Date of judgment: 25 June 2024
Catchwords: FAMILY LAW – PROPERTY – Alteration of property interests – Where parties had a 19 year relationship – Where husband brought in a property – Where wife received an inheritance – Where both parties allege the other has undisclosed assets overseas – Kennonv Kennon (1997) FLC 92-757 taken into account – Where wife has full-time care of children – Where both parties wish to retain a property – No matters of principle.
Legislation: Family Law Act 1975 (Cth) ss 75, 79
Cases cited: Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Division: Division 1 First Instance
Number of paragraphs: 76
Date of hearing: 13 & 14 June 2024
Place: Parramatta
Solicitor for the Applicant: Mr Bainbridge of Bainbridge Legal
Counsel for the Respondent: Ms Picker
Solicitor for the Respondent: Summit Law Group

ORDERS

PAC 4798 of 2022

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

MR TATUM

Applicant
AND:

MS BRYDON

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

25 JUNE 2024

THE COURT ORDERS THAT:

1.That within 60 days of the making of these orders, the applicant husband do all such acts and things and sign all necessary documents so as to transfer to the respondent wife all his right title and interest in the former matrimonial home known as D Street, Suburb E (“the Suburb E Property”), also known as folio ….

2.That simultaneously with the transfer set out above, the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the Suburb E Property and release the husband from the mortgage on this property.

3.That simultaneously with the transfer and re-mortgage in Orders 1 and 2, the wife pay to the husband the sum of $287,140.41 (“the settlement sum”).

4.That if the wife does not transfer the settlement sum to the husband within the time specified, then the parties immediately do all acts and things and sign all documents necessary to list the Suburb E Property for sale by private treaty, with a real estate agent agreed between the parties and at a price agreed between the parties, or failing agreement, within 14 days then at a price determined by the President from time to time of the New South Wales Division of the Australian Property Institute or his nominee.

5.In the event that the Suburb E Property is not sold within 3 months after the date of listing pursuant to Order 4 above, then the parties shall forthwith do all acts and things and sign all documents necessary to list the Suburb E Property for sale by public auction with an auctioneer agreed between the parties and at a reserve price agreed between the parties, or failing agreement, as determined by the President from time to time of the New…

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Tatum & Brydon [2024] FedCFamC1F 430
Case
[2024] FedCFamC1F 430
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) heard a property settlement application from Mr Tatum, the husband, and Ms Brydon, the wife, following the breakdown of their 19-year marriage. The central issue before the court was the equitable division of the parties' assets and liabilities. Both parties claimed the other had undisclosed assets in Country H. The court had to assess the contributions of the parties, including financial contributions, non-financial contributions, and other relevant factors. The court also considered the impact of the husband's conduct on the wife's contributions and the wife's allegations of domestic violence and financial control by the husband.

The court found that the husband's conduct had made the wife's contributions significantly more arduous, warranting an adjustment in her favour. The court assessed the contributions of the parties at 53 per cent to 47 per cent in favour of the wife. The court also considered the wife's full-time care of the children and her responsibility for their therapy and school-related expenses as factors weighing in her favour. The court ordered that the husband transfer his interest in the Suburb E Property to the wife, who would then pay him a settlement sum of $287,140.41. The wife was also required to transfer her interest in the Suburb G Property to the husband. The court further ordered the division of the parties' bank accounts and superannuation funds. The court appointed the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia to execute any deeds or instruments if either party refused or neglected to do so.

The court's final orders included the transfer of the Suburb E Property to the wife, with the husband paying her a settlement sum. The wife was to transfer the Suburb G Property to the husband. The proceeds from the sale of the Suburb E Property were to be disbursed to the parties in a specified ratio. The court also ordered the division of the parties' bank accounts and superannuation funds. The husband was declared the sole owner of a motor vehicle, and the wife was granted limited access to the Suburb E Property to allow the husband to remove his personal items. The court appointed the Registrar or Deputy Registrar to execute any necessary deeds or instruments if either party failed to do so.

Orders

Orders of the court

PAC 4798 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TATUM

Applicant

AND:

MS BRYDON

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

25 JUNE 2024

THE COURT ORDERS THAT:

1. That within 60 days of the making of these orders, the applicant husband do all such acts and things and sign all necessary documents so as to transfer to the respondent wife all his right title and interest in the former matrimonial home known as D Street, Suburb E (“the Suburb E Property”), also known as folio ….

2. That simultaneously with the transfer set out above, the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the Suburb E Property and release the husband from the mortgage on this property.

3. That simultaneously with the transfer and re-mortgage in Orders 1 and 2, the wife pay to the husband the sum of $287,140.41 (“the settlement sum”).

4. That if the wife does not transfer the settlement sum to the husband within the time specified, then the parties immediately do all acts and things and sign all documents necessary to list the Suburb E Property for sale by private treaty, with a real estate agent agreed between the parties and at a price agreed between the parties, or failing agreement, within 14 days then at a price determined by the President from time to time of the New South Wales Division of the Australian Property Institute or his nominee.

5. In the event that the Suburb E Property is not sold within 3 months after the date of listing pursuant to Order 4 above, then the parties shall forthwith do all acts and things and sign all documents necessary to list the Suburb E Property for sale by public auction with an auctioneer agreed between the parties and at a reserve price agreed between the parties, or failing agreement, as determined by the President from time to time of the New South Wales Division of the Australian Property Institute of his nominee.

6. That the parties shall cause the proceeds of sale of the Suburb E Property to be disbursed as follows:

(a) In payment of the costs of sale including real estate agent’s fees, legal fees and auctioneer’s fees, if any;

(b) In payment of any rate adjustments as at the date of settlement of the sale;

(c) With respect to the balance remaining if any, in payment to the parties as follows:

(i) In payment to the wife of an amount calculated by the following formula: (56% x D) – B

Where:

A = $1,327,199.41, being the net value of the assets to be retained by the husband pursuant to these orders

B = $1,689,162.88, being the net value of assets to be retained by the wife pursuant to these orders

C = $698,052 (being the net value of the Suburb G Property, as described below)

D = The total of A + B + C

(ii) The balance to the applicant husband

7. That within 60 days of the making of these Orders, the wife do all such acts and things and sign all necessary documents so as to transfer to the husband all her right title and interest in the property situated at and known as F Street, Suburb G, also known as folio … (“the Suburb G Property”).

8. That simultaneously with the transfer set out above at Order 7, the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the Suburb G Property and release the wife from the mortgage on this property.

9. That in the event that the husband is unable refinance the mortgage over the Suburb G Property within the timeframe provided, then the parties immediately do all acts and things and sign all documents necessary to list the Suburb G Property for sale by private treaty, with a real estate agent agreed between the parties and at a price agreed between the parties, or failing agreement, within 14 days then at a price determined by the President from time to time of the New South Wales Division of the Australian Property Institute or his nominee.

10. In the event that the Suburb G Property is not sold within 3 months after the date of listing pursuant to Order 9 above, then the parties shall forthwith do all acts and things and sign all documents necessary to list the Suburb G Property for sale by public auction with an auctioneer agreed between the parties and at a reserve price agreed between the parties, or failing agreement, as determined by the President from time to time of the New South Wales Division of the Australian Property Institute of his nominee.

11. That the parties shall cause the proceeds of sale of the Suburb G Property to be disbursed as follows:

(a) In payment of the costs of sale including real estate agent’s fees, legal fees and auctioneer’s fees, if any;

(b) In payment of any rate adjustments as at the date of settlement of the sale;

(c) With respect to the balance remaining, if any, in payment to the husband.

12. That within 28 days of the making of these Orders, the parties do all such acts and things and sign all necessary documents so as to close the Commonwealth Bank of Australia account (account number …73) and the Westpac Offset Account …93 and to pay the balance remaining to the husband.

13. That within 28 days of the making of these Orders, the parties do all such acts and things and sign all necessary documents so as to close the Westpac bank account (account number …94) and to pay the balance remaining, if any, to the parties, 56 per cent to the wife and 44 per cent to the husband.

Superannuation Splitting Order

14. That the orders below have effect from the operative time.

(a) The base amount allocated to the respondent wife Ms Brydon, out of the interest of the applicant husband’s, Mr Tatum, interest in Super Fund 1 (the fund) is $68,289.70 (the base amount).

(b) Pursuant to s 90XT(1)(a) Family Law Act 1975 (Cth), whenever a splitable payment becomes payable in respect of the interest of the applicant husband, Mr Tatum, in the fund, the respondent wife, Ms Brydon is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and there be a corresponding reduction in the entitlement of the applicant husband, Mr Tatum.

(c) That, having been accorded procedural fairness in relation to the making of this Order, this order binds the Trustee of the superannuation fund;

(d) That operative time for this Order is four (4) business days after the date of service of the Orders on the trustee of the superannuation fund.

15. That the husband be declared the sole owner in law and equity of Motor Vehicle 1, registration number …,.

16. That within 42 days of the date of these Orders, the husband will remove his personal items in the Suburb E Property including, but not limited to, tools, clothing, his furniture and all items that belong to the husband located in his study, the garage and husband’s wardrobe of the Suburb E Property.

17. That for the purposes of Order 16, the wife will allow the husband access to the Suburb E Property on four occasions for no longer than 8 hours each, within 42 days of the date of these Orders, at a time and date nominated by the husband and providing not less than 24 hours’ notice.

18. That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia be and is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument upon been satisfied by affidavit of such neglect or refusal.

19. That each party be declared the sole owner in law and equity of all items of real property, personal property, chattels and financial resources in their name, possession or control not otherwise dealt with in these orders including but not limited to bank accounts, any choses in action and superannuation benefits.

20. That the parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.

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

The applicant and the respondent seek property settlement orders following the breakdown of their marriage. BACKGROUND The applicant husband is 55 years old and the respondent wife is 50 years old. The husband migrated to Australia in 1999, obtaining a permanent professional job in 2000. The parties met while the husband was living in Australia and the wife was living in Country H. They married in 2002, in Country H. The husband returned to Australia a short time later while the wife remained in Country H until early 2003, when her visa was granted. The parties separated on 17 October 2021 after the husband was arrested and charged with an offence and the wife asked the husband to leave the matrimonial home (“the Suburb E property”). The parties were together for 19 years. There are two children of the relationship, Ms B, who was born in 2005 and is now an adult, and X, who was born in 2009. The parties entered into interim consent orders on 8 December 2022 and final consent orders on 23 October 2023 (which only pertained to X). The parenting orders provide for the wife to have sole parental responsibility, X to live with the wife, spend time with the husband according to his wishes, and that the husband is restrained from consuming alcohol 24 hours prior to seeing him. Consent orders made on 8 February 2024 provide that the husband and X have telephone time in accordance with X’s wishes. The husband seeks property settlement orders dividing the parties’ property 50 per cent to each the husband and wife. The wife seeks a division of 35 per cent to 65 per cent, in her favour. Both parties claim the other has undisclosed property or assets in Country H. IS IT JUST AND EQUITABLE TO MAKE PROPERTY SETTLEMENT ORDERS Section 79(2) of the Family Law Act1975 (Cth) provides:(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. There was no dispute that in the circumstances of this case it is just and equitable to make property settlement orders as the existing legal and equitable rights of the parties to the marriage are no longer appropriate now that the parties are separated and the common use of the parties’ property has ceased. ASSETS AND LIABILITIES OF THE PARTIES The parties filed a joint balance sheet on 10 June 2024, which they updated during the hearing. Prior to final addresses, the parties resolved most of the differences in the joint balance sheet and the deletion of items 10, 11, 20, 23 and 24 (see Exhibit 15). The wife’s interest in real property in Country H (Item 13 of Exhibit 15) The husband claimed that the wife’s family sold land to developers, and in return, the wife received shares in several apartments and shops. The husband says some of these apartments have been sold and the proceeds are in the wife’s M Bank accounts. The husband also notes that the wife has been requested to amend her last tax return by the Australian Taxation Office due to a failure to disclose foreign income, but has not yet prepared the amended return, despite the obvious relevance to the hearing.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am persuaded that the conduct of the husband did make the wife’s contributions significantly more arduous and that this should be taken into account in assessing the contributions of the parties.Conclusions as to Contributions of the identified assets In the circumstances of this case, I assess the contributions of the parties at 53 per cent to 47 per cent in favour of the wife.OTHER FACTORS The parties are both employed. The husband’s financial statement filed 31 May 2024 records his weekly income as $1,669 and that he works as a professional on a full-time basis. The husband records his weekly expenditure at $3,316. The wife’s financial statement filed 28 May 2024 records a weekly income of $1,493 (together with $265 per week of child support) and that she works in customer service on a permanent, full-time basis. The wife records her weekly expenditure as $2,792. There was no real challenge to the incomes of the parties. The difference in their earnings is a little over $9,000 per annum. This factor weighs in favour of the wife. The parties have not put forward evidence of health conditions that would affect their future earning capacity. Neither party is likely to see any significant changes to their circumstances into the future. However, the husband is five years older than the wife and therefore has a more limited working career before retirement than the wife (given they are now both over 50 years of age). The wife has the full-time care of the children. X is fourteen. Ms B is now eighteen but studies full-time and is still living at home and supported by the wife. The wife, in substance, bears the total burden of caring for the children assisted only by the child support paid by the husband for X. The child support is not insignificant, some $265 per week, or around $13,780 per annum. The care arrangements for the children weigh in favour of the wife. Whilst the house received by the husband has a potential CGT liability when sold, it is not proposed to be sold in the foreseeable future. Thus, it is appropriate to consider the potential CGT liability as only a minor factor under s 75(2) of the Act in favour of the husband. I take into account my finding with respect to the wife’s failure to make proper disclosure, as discussed above, which weighs in favour of the husband. However, this factor must be seen in light of the finding that $160,000 of the wife’s inheritance had been brought to the relationship by the wife, the admission by her as to at least a small value for the interest she admitted she had in one property, and that the inheritance came relatively late in the marriage. Ultimately, I am persuaded to make an adjustment of three per cent in favour of the wife to the contributions findings in the circumstances of this case. JUST AND EQUITABLE Draft orders were provided by the parties in order to effect the division of property on the basis that each retain the homes they are living in, a superannuation splitting order (in accordance with the requests of the superannuation funds) and a payment of an appropriate adjustment figure.

Ratio Decidendi

Legal Principle Established

The wife disputes that the husband had a substantial role in caring for the children. It seems more likely that the wife was the primary carer of the children throughout the relationship. Post-separation contributions The consent orders provided for the children to spend time with the father in accordance with their wishes. The older child is now 18 years old. The husband does not have the care of either of the children, nor does he spend time with them. The husband says he has paid child support totalling $32,176.83. The wife sets out that she supported the children herself for a year after separation and that she had been paying for all school-related expenses and tuition fees, as well as the children’s therapy to deal with the domestic violence they witnessed. The wife says that the husband asked her not to apply for child support and that he would transfer funds to her account but that he never did, leading her to apply to the Child Support Agency in June 2022. She says child support was eventually garnished from his salary from 26 October 2022 onwards (approximately a year after the parties separated). The husband now pays child support of around $265 per week for the younger child. The wife has had the benefit of living at the Suburb E property since separation. The husband was renting at $250 per week until early 2022, then $450 per week until mid-2023, when he moved to the Suburb G property. Both parties made contributions to the properties and outgoings after separation.The wife’s claim for Kennon v Kennon (1997) FLC 92-757 considerations In the wife’s affidavit filed 31 May 2024, the wife details a significant history of mistreatment from the husband. At the beginning of the marriage, the husband was unhappy with her cooking and verbally abused her, even, on one occasion punching the bedframe she was against. The wife claimed when she first moved to the Suburb P property, the husband forced her to dig around the pillars under the house each day so concrete could be put in to stabilise it. The wife felt she had no choice but to carry out this hard physical work as the husband would check how much she had dug when he returned home. She said she was also made to carry the concrete on weekends while the husband poured it under the house. The wife sets out that she was forced to have sex with the husband each night despite being exhausted from digging under the house each day. The wife claims the husband found an email correspondence she had had with a male friend, had gotten drunk and punched a hole in the wall, and threatened to kill her if she continued to correspond. The wife says she spent several nights in the bathroom as she was frightened when he drank. The wife’s sets out that the husband denied the wife access to the computer and financially controlled her by instructing her to deposit her salary into a joint account and permitted the wife to have a weekly allowance of $40 for her train fare. The husband did not allow her to have online banking access or an ATM card. If the wife wanted to purchase something, he would accompany her to ensure it was necessary. After the wife travelled to Country H in late 2006, she says she refused to return to Australia if he did not “change his ways”. The husband gave her an ATM card but refused to give her online banking access. The wife’s evidence is that the husband also demanded she provide her online banking access for her Country H accounts and after she did, the husband changed those passwords the same night. After the wife inherited money from her late father, the wife says the husband was the only one with access to the account where this money was held. The wife claims the husband used these funds to pay for his exams, for airfares and accommodation, and for formal clothes.