Warne and Warne

[2017] FCCA 3344

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARNE & WARNE [2017] FCCA 3344

Catchwords:
FAMILY LAW – Ex tempore ruling on property dispute which proceeded by way of submissions only.

Stanford & Stanford (2012) 247 CLR 108

Applicant: MR WARNE

Respondent: MS WARNE

File Number: DGC 4028 of 2016

Judgment of: Judge Burchardt

Hearing date: 21 December 2017

Date of Last Submission: 21 December 2017

Delivered at: Dandenong

Delivered on: 21 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Puckey

Solicitors for the Applicant: Bayside Family Law Solutions

Counsel for the Respondent: Ms McCreadie

Solicitors for the Respondent: Family Law Life

ORDERS

1. All previous interim orders be discharged save for paragraph 13 of 27 March 2017 which shall be discharged upon the settlement of the sale.

2. As soon as practicable, the parties do all acts and things and sign all necessary documents to place the property at Property A in the State of Victoria (“the Property A property”) on the market for sale on such terms and conditions as agreed in writing between the parties or as otherwise directed by the nominated selling agent.

3. Once the settlement of the sale of the Property A property has been effected, the sale proceeds be divided as follows:

   (a)To pay all costs and commissions associated with the sale;

   (b)To discharge the mortgage to (omitted) Bank (taking into account the balance held in the Offset Account);

   (c)To discharge the loan to (omitted) Finance secured over the Subaru (omitted) vehicle, registration number (“the Subaru”);

   (d)To divide the balance:

   (i)47.5% to the wife; and

   (ii)52.5% to the husband.

4. The parties do all acts and things in order to sell the (omitted) print (omitted) and to divide the proceeds equally.

5. The wife otherwise retains the following assets, liabilities and superannuation entitlements:

   (a)Any savings held in her personal bank accounts;

   (b)Subaru (omitted) motor vehicle (omitted) (subject to the Husband transferring the registration into the wife’s name at her expense);

   (c)(omitted) painting;

   (d)All the furniture, white goods and chattels contained in the Property A property save for the Husband’s personal items, including but not limited to his bedroom suite and items referred to in paragraph 7 herein; and

   (e)Her superannuation entitlements

   and the wife indemnify the husband in relation to any liabilities.

6. The husband otherwise retains the following assets, liabilities and superannuation entitlements:

   (a)Any savings in his personal bank accounts;

   (b)His shareholdings (subject to the loan);

   (c)His (vehicle omitted);

   (d)Items from the (omitted) property including, but not limited to:

   (e)(omitted) print (omitted) and “(omitted)” and (omitted); and

   (f)His personal belongings, clothes, CDs, golf clubs, bicycle, passport;

   (g)All other personal items and furniture stored in his current property; and

   (h)His superannuation entitlements

   and the husband indemnify the wife in relation to any liabilities.

7. That the parties forthwith shall do all such acts and things necessary to cause the (omitted) Finance loan to be discharged in full and the Subaru motor vehicle to be transferred to the wife.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4028 of 2016

MR WARNE

Applicant

And

MS WARNE

Respondent

REASONS FOR JUDGMENT

1. This matter has proceeded on the footing of submissions only and on the basis of what, essentially, subject to one exception, are agreed facts.  The parties are to be commended for adopting this relatively straightforward and shorthand means of disposing of a controversy which, in the ultimate, in my view, is relatively straightforward.  The Court’s first task in a property matter, of course, pursuant to the High Court’s decision in Stanford, is to determine the legal and equitable property of the parties and make a preliminary decision, as it were, as to whether or not a property adjustment is appropriate.

2. In this case, as in so many cases, and, indeed, as was foreshadowed in Stanford, the basis upon which the parties conducted their finances as a couple has totally changed, and both of them seek a property adjustment, and it is, indeed, entirely appropriate there be one. 

3. The pool has been agreed between the parties, and I have a listing of it in front of me.  The total pool, excluding superannuation, is just over $1,070,000.  I note that it is agreed, and I think, if I may say so, correctly, that each party should retain their superannuation.

4. There is a minor methodological difference between the parties in as much as counsel for the father seeks that various matters, as it were, be hived off and that the Court make a division, so to speak, predominantly of the anticipated net proceeds of the sale of the matrimonial home.  It is submitted that the amounts involved are relatively commensurate with one another. 

5. In my view, given that this was a seven year relationship, and there is a child involved as well;  X, born on (omitted) 2014;  and given the need for each party to re-establish themselves, this is not a case in which it is appropriate to excise anything.  A global approach, in my view, is entirely appropriate.

6. That brings us to the question of contributions, which is where the submissions were essentially concentrated.  As I have said, it is a relationship of some seven years.  It is agreed that the husband put in $365,000 and the wife $238,000.  There is an argument about the husband’s contribution of $64,000.  It is agreed that this was contributed.  It is just not agreed to what extent it was either a pre-owned, so to speak, asset on the part of the husband or generated during the relationship.

7. It is clear from exhibit A1 that $62,000 had been generated by August 2011.  The parties started cohabitation slightly more than two years before that.  I accept the husband was not paying rent and utilities, and I also note that the parties kept their finances separate, at least during this period.  However, as a matter of ordinary human experience, rent for shared house and utilities is not likely to be of the order of $30,000 per annum.  It is not possible to give an exact figure, but some proportion of the $60,000 must have been accrued during the relationship, but it would not seem to me to be anything like the total involved.

8. It is important to emphasise that, as both counsel, I think, accept, this is not an arithmetical exercise.  It is an exercise designed to produce an outcome that is just and equitable.  As I say, the total pool is just over $1,073,000.  The funds put into the property free up funds by which other assets are engendered, apart, of course, from the husband’s shares, but they’re a fairly small amount in any event.  So the contributions put in to the property have to be seen as contributions to the rather larger pool that is, in fact, being disposed of.

9. It is clear that just over $600,000 plus the $64,000, or however much of it could be attributed to the relationship, was put in directly.  It is not a position that either side say this is a case in which each party should, as it were, receive back what they contributed.  This being a seven year relationship, I think that is a correct position.  Nonetheless, the contributions have to reflect the father’s far greater input, and in doing the best one can in matters which are always matters of impression, in my view, a loading of 12 and a half per cent for the husband’s greater contribution is, in all the circumstances, appropriate.

10. That, however, brings us to the question of future needs.  Both the parties are young, at least from my perspective, and, fortunately, in good health.  The father earns more than the mother;  not, perhaps, that much more – it is approximately $10,000 or so a year.  I accept that the mother can earn more in one sense, but I accept also that child care presently would involve very significant imposts, and, indeed, there will be significant impost even when X starts school. 

11. In my view, the father downplays very significantly the costs of bringing up a child.  He also pays no regard to the mother’s need to buy a home for the child to live in because she will be living predominantly with the mother.

12. In all the circumstances, in my view, there should be a 10 per cent adjustment in respect of future needs to the mother, the result being that the pool should be divided as to 52 and a half per cent to the husband and 47 and a half per cent to the wife.  In my view, that is, looking at it in a global way, a just and equitable outcome.  I will request counsel to draw up some minutes to give effect to these conclusions. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  24 January 2018