WIBLEY & WIBLEY

[2018] FamCA 565

FAMILY COURT OF AUSTRALIA

WIBLEY & WIBLEY [2018] FamCA 565

FAMILY LAW – PROPERTY SETTLEMENT – Consent orders – Whether orders just and equitable – where one party had significant superannuation interests – where non-financial contributions made to the welfare of the family. 

Family Law Act 1975 (Cth) s 106A

APPLICANT: Mr Wibley

RESPONDENT: Ms Wibley

FILE NUMBER: CAC 353 of 2018

DATE DELIVERED: 24 July 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

BY CONSENT

The C Town Property

IT IS NOTED THAT:

1. The parties sold the property contained in Lot … in Deposited Plan … otherwise known as B Street, C Town in the State of New South Wales ("the C Town Property”), which was registered in the parties' joint names.  0n 16 November 2017 the property proceeded to settlement.  The parties applied the sale proceeds to:

   (a)Repay to Westpac Banking Corporation the amount outstanding on the Settlement Date for loan number … (of approximately $723,000) in the names of Mr Wibley and Ms Wibley ("the C Town Property Home Loan") in order to discharge the mortgage secured against the Property (Registration Number …).

   (b)To pay the balance then as follows:

   (i)     50 per cent to the Applicant;

   (ii)    50 per cent to the Respondent.

2. From his share of the sale proceeds, the Applicant distributed the sum of $40,000 as follows:

   (a)To pay to D Financial Services the sum of $14,000 to discharge the debt owed;

   (b)To pay to the National Australia Bank the sum of $21.500 to pay out and thereby discharge the overdraft account (…18); and

   (c)To pay to the Respondent the balance of the funds less the following amounts:

   (i)     The sum of $1,814 to reflect one half of the expenses paid by the Applicant on the Respondent's behalf in the first instance, being:

   A.One half ($760) of the legal fees associated with the preparation of these documents;

   B.One half ($589) of the veterinary bills; and

   C.One half ($465) of the cost of the skip hire.

   (ii)    The sum totalling one half of all principal and interest loan repayments with respect to the C Town Property, together with all rates, insurances, land tax (if any) and utilities ("the C Town Property Outgoings") paid by the Applicant until the Settlement Date.

3. Having regard to the deducted sums referred to in the immediately preceding Notation, the approximate payment to the Respondent was approximately $2,686 less 50 per cent of the C Town Property Outgoings.  For the purpose of the Application for Consent Orders Part K, the payment to the Respondent is 50 per cent of $2,686 = $1,343.

IT IS ORDERED THAT

1. That within seven days from the date of these Orders, the parties do all things necessary to cause the joint Westpac Bank account (1116) to be closed with any credit balance to be divided equally between the parties .

Household Contents

1. That within 21 days from the date of these Orders or at such other time as may be agreed in writing, the Applicant and the Respondent reach agreement as to the division of the household contents and furniture and furnishings.

2. That in the event that neither of the parties wish to keep a household item, the parties shall do all things necessary to cause any unwanted household items to be listed for sale in such manner and on such terms and conditions as are agreed in writing.

3. That upon the sale of the unwanted household item(s) the Applicant and the Respondent do all things necessary to cause the sale proceeds to be divided equally and paid equally to each party and in the event that there are “expensive tools or items” that cannot be sold or are unable to be sold prior to the settlement of the C Town Property sale, the Respondent shall cause these items to be removed from the C Town Property and stored elsewhere, with the sale of the unwanted household items to occur at a later date.

Liabilities

1. That the Applicant be liable for and indemnify and keep indemnified the Respondent in relation to any personal loan, credit card or other debt his name, any tax liability, including capital gains that which has been assessed and/or may be assessed in the future, and pay as and when they fall due all loan repayments with respect to such debt(s).

2. That the Respondent be liable for and indemnify and keep indemnified the Applicant in relation to any personal loan, credit card or other debt in her name, any tax liability including capital gains, that which has been assessed and/or may be assessed in the future, and pay as and when they fall due all loan repayments with respect to such debt(s), including but not limited to the Bank of Melbourne, GO MasterCard, the Citibank and American Express credit card debts.

Personal Possessions

1. That except as otherwise provided for in these Orders, the Applicant otherwise be, as against the Respondent, the sole legal and beneficial owner of all items of property in his name, or where there is no legal title, in his possession or control, including but not limited to:

   (a)Monies standing to the credit in any bank and/or credit union account;

   (b)The two cats, E and F;

   (c)Motor vehicle 1;

   (d)Motorcycle 1; and

   (e)His G and H superannuation entitlements.

2. That except as otherwise provided for in these Orders, the Respondent otherwise be, as against the Applicant, the sole legal and beneficial owner of all items of property in her name, or where there is no legal title. in her possession or control, including but not limited to:

   (a)Monies standing to the credit in any bank and/or credit union account;

   (b)The two dogs, J and K;

   (c)Motor vehicle 2;

   (d)Motorcycles 2 and 3; and,

   (e)Her G and H superannuation entitlements.

Section 106A

1. That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court be and is hereby appointed pursuant to s 106A of the Family Law Act 1975 to execute such document in the name of such party.

AND IT IS NOTED THAT:

1. The parties’ child together, X, born … 1996, shall live with the Applicant.  The Applicant shall pay for “all of X's reasonable living costs”.

2. The Respondent shall be liable for the two dogs' expenses, including boarding fees, food, grooming and any veterinary bills.

3. The Applicant agrees to store the Respondent's motor vehicle 2 whilst the Respondent is working abroad.  The Respondent intends on returning to Australia in late 2018.  The Applicant agrees to store the Respondent's vehicle for a further reasonable period of time if required and as may be agreed.

4. The Respondent shall arrange storage of X's furniture, together with her own, for the period of time that she works abroad.

5. That the parties agree that as far as it is practicable to do so that these Orders are made having regard to the provisions of s 81 of the Family Law Act 1975 (Cth) with a view to determining for all time the financial relationship between the parties and avoiding further proceedings between them in respect to property settlement and spouse maintenance.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wibley & Wibley 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 CANBERRA

FILE NUMBER: CAC 353 of 2018

Mr Wibley

Applicant

And

Ms Wibley

Respondent

REASONS FOR JUDGMENT

1. Mr Wibley, the applicant, and Ms Wibley, the respondent, appear before me today seeking that I make orders in accordance with Consent Terms that they have executed and filed with the Court. 

2. The matter has been referred to the Court by the Registrar on the question as to whether or not it will be just and equitable to make the orders sought. 

3. In support of their application for Consent Orders the parties provided material to the Court by way of the Application for Consent Orders form.  The material disclosed in the Application for Consent Orders form was such as to raise a question as to whether or not the orders sought to be made by the parties would be just and equitable and it was entirely appropriate for the application to be requisitioned.  As part of the requisition process the parties have provided to the Court an affidavit executed by each of them in identical terms setting out their assertion jointly made as to the property pool and the effect of the orders. 

4. It may be observed that the orders that they seek to make will involve the respondent receiving a greater part of the current assets and the applicant, who has a greater superannuation entitlement, receiving a greater portion of that.  It may also be observed that their affidavit material is not consistent with the application for consent orders.  They have each also orally addressed me today.  Accepting the assertions that are made in the affidavit material over the Application for Consent Orders the division sought by each of the parties is for a 60 / 40 per cent split in the applicant's favour. 

5. Two factors are said to justify that disparity, or rather three factors are put together to justify that disparity.  One, is it can be derived from the Application for Consent Orders that the applicant had a significant sum of superannuation to his credit prior to what has been a long marriage between the parties.  That indicates some degree of contribution on his part, which is greater than that of the respondent.  Although it may also be accepted that the significance of that contribution may well have waned over the long period of relationship between the two of them. 

6. The second matter put forward relates to the respondent having time off work to care for their child.  This is not a matter which attracts as being a reason for a disparity in the orders.  Whether somebody is working or somebody is working within the home for the care of a child, there is no reason to conclude that the contributions made in the care of a child are in some way inferior to the contributions made in deriving income for the family.  That is not a disparity that I accept as justifying a difference in the orders.

7. However, there is a third matter that is put.  Although there is not great detail exposed about that matter, it has been the subject of submissions made by the respondent before me and accepted as true by the applicant before me.  Although I do not have the precise details about the circumstances of the relationship what is alluded to is that the respondent has struggled with a mental health issue at some point in the relationship.  She places great value on the support that she was given during that period of time by the applicant and concedes that as a result of her circumstances at that time she was unable to make certain contributions to the home that is, she accepts that those peculiar circumstances, which do not always attach to a party suffering from a mental illness, but in this case demonstrated a differential in the contributions made by the parties justify the adjustment in this instance, which is not an equal adjustment.

8. As to the future circumstances of the parties the applicant is slightly older than the respondent and it may be assumed that the respondent will have a slightly longer working life ahead of her.  At present, the applicant earns a little more than the respondent, although their common position is that her prospects of receiving higher remuneration in the future are better than those of the applicant due to her personal qualities. 

9. It should also be noted that there is no starting point that there will be an adjustment of property interests.  The steps taken by the parties seemingly reflect each of them retaining their own property interest from the end of the relationship.  The most significant current asset that they divided between themselves was the family home and they have already split that on what is an almost 50 / 50 basis.  In essence, the parties are not seeking to depart from their ownership of the various items that they currently hold.  On the basis that they have put forward of the particular circumstances of their relationship I accept that the consent orders that they seek to be made are just and equitable under the circumstances.

10. I make orders in accordance with the terms of Consent Orders filed in the Court executed by the applicant and the respondent, initialled by me and with today's date placed upon them.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 July 2018

Associate: 

Date:  25 July 2018