Winton and Winton

[2016] FamCA 107

FAMILY COURT OF AUSTRALIA

WINTON & WINTON [2016] FamCA 107

FAMILY LAW – PROPERTY – final orders – where the wife seeks detailed orders for the transfer of property and other interests – where the wife seeks orders that she resign as director and secretary of a company and transfer the whole of her interest in the shareholding – where the wife seeks further orders for each party to retain property or chattels in their possession – where the husband seeks a 50/50 property settlement – where the Court is satisfied that it is just and equitable to make an order by way of property settlement – where it is ordered that the wife receive an adjustment being the equivalent of 67 per cent of the known net assets and liabilities of the parties including superannuation.

Family Law Act 1975 (Cth) s 75(2), 79, 106A, s 128

Bevan & Bevan (2013) FLC 93-545
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Winton

RESPONDENT: Mr Winton

FILE NUMBER: LNC 350 of 2012

DATE DELIVERED: 29 February 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Launceston

JUDGMENT OF: Dawe J

HEARING DATE: 21 and 22 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Welch

SOLICITOR FOR THE APPLICANT: Philip Welch, Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. Upon registration of the transfer to the wife of the property at B Street property in Tasmania (“the B Street property”) as provided for hereinafter and in lieu of any payment to be made by the wife to the husband the wife shall pay to her solicitor the wife’s legal costs ordered to be paid by the husband by paragraph 5 of the orders made on 12 November 2014 as ordered by the Costs Assessment Order made by Registrar Weidmann on 12 February 2015.

2. Within thirty (30) days of the date of these Orders the husband shall:

   (a)sign all documents and transfers so as to assign and transfer to the wife his interest in B Street property Tasmania as more particularly contained and described in Certificate of Title Volume … Folio …;  and

   (b)sign and return discharge of mortgage authority forms provided to him by or on behalf of the wife in respect of mortgage number … and …;

   (c)sign all documents and transfer to transfer to the wife and register the wife as the sole owner of the motor vehicle registration number ….

3. Within thirty (30) days after the husband complies with the terms of paragraph 2 of these Orders the wife shall sign any documents, authorities or papers to cause mortgage number … and mortgage number … to be discharged.

4. As from the date of these Orders the wife shall pay and indemnify the husband in respect of all outgoings in relation to the B Street property payable in respect of the period as and from the date of these Orders.

5. Within thirty (30) days of the date of these Orders and contemporaneously with the husband’s compliance with paragraph 2 of these Orders, the wife shall sign all documents and transfer so as to assign and transfer to the husband her interest in the property at C Street property as more particularly contained and described in Certificate of Title Volume … Folio … (“the C Street property”) and the wife shall sign and return any discharge of mortgage authority forms provided to her by or on behalf of the husband in respect of mortgage number ...

6. Within thirty (30) days of the date of these Orders and contemporaneously with the transfer referred to in paragraph 5 hereof, the husband shall:

   (a)lodge at the Land Titles Office a discharge of mortgage number … executed by authorised officers of the Commonwealth Bank of Australia so as to discharge and release the wife from all liability in relation to that mortgage and associated mortgage loan;  and

   (b)provide a copy of the said executed discharge of mortgage to the wife’s solicitors.

7. The husband shall pay and indemnify the wife in relation to all outgoings in respect of the C Street property including rates, water rates, land tax, insurance premiums and mortgage interest and principal.

8. Within seven (7) days from the date of these Orders the wife shall resign as director and secretary of the company D Pty Ltd (CAN …) and within seven (7) days of that resignation the husband shall lodge with the Australian Securities & Investments Commission in an approved form details of the wife’s resignation as director and secretary of that company.

9. Within seven (7) days of the date of these Orders the wife shall transfer the whole of her interest in the shareholding of the company D Pty Ltd by forwarding to the husband and/or the secretary of that company a share transfer form, the consideration being these Orders.

10. Within thirty (30) days of the date of these Orders the wife shall execute all documents as are provided to her by the husband or his solicitor or accountant so as to transfer to the husband or his nominee any interest the wife has in any loan account in the company D Pty Ltd or in respect of the Winton Family Trust (ABN …).

11. The husband shall pay and indemnity the wife and forever hereafter keep her indemnified in respect of all or any liability of hers in respect of the company D Pty Ltd and/or the Winton Family Trust, including any liability of the wife to the Commissioner of Taxation arising from her interest in the company and/or the Winton Family Trust, and any taxation, interest or penalties payable by her as a result of any assessments or receipt of a Division 7A Dividend by her arising from the transfers pursuant to these Orders, such indemnity to include indemnity for any tax payable by the wife, as a result of the assignment of any loan account arising pursuant to these Orders.

12. Within thirty (30) days from the date of these Orders the wife shall make available for collection by the husband, or his agent, at a time and date agreed between the parties in writing to remove from the B Street property the items set out in the annexure attached hereto and marked with the letter “A”.  (Annexure not included in published judgment)

13. The Court declares that the wife shall be entitled, as against the husband, to the household furniture and effects formerly used by the parties jointly but now in the possession or control of the wife including but not limited to the items set out in the annexure attached hereto and marked with the letter “B” including any monies at banks, credit unions, savings accounts or investments in the sole name of the wife. (Annexure not included in published judgment)

14. In the event that either party refuses or neglects to sign any document necessary to implement these orders within fourteen [14] days of a request to do so and upon an affidavit being filed in the Court by the non-defaulting party setting out the failure pursuant to section 106A of the Family Law Act 1975 (Cth), the Registrar of the Family Court of Australia at Launceston is appointed to execute such transfer documents or discharge of mortgage authorities in the name of the defaulting party and that:

    (a)the Registrar do all acts and things to give force and effect to these Orders;  and

    (b)the non-defaulting party be at liberty to apply for a costs order against the defaulting party.

15. Unless otherwise specified in these Orders:

    (a)each party is solely entitled to the exclusion of the other to all other property or chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides a condition for payment out of such entitlement;

    (b)each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;  and

    (c)any joint tenancy of the parties in real or personal property is hereby expressly severed.

16. Save as to the question of costs all proceedings are dismissed.

17. Liberty to apply for consequential orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Winton & Winton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: LNC 350 of 2012

Ms Winton

Applicant

And

Mr Winton

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings were initiated by MS WINTON (“the wife”) in 2012.  On 14 July 2015 the wife filed an Amended Initiating Application in which the final orders for property settlement were sought.

2. A Response was filed by MR WINTON (“the husband”) on 1 February 2013 however the orders which he sought were outlined in his affidavit filed 13 July 2015 seeking “a 50 per cent” property settlement. 

Relevant Background

1. The wife was born in 1960 and at the time of trial was 54 years old.  The husband was born in 1960 and at the time of trial was also 54 years old. 

2. The parties commenced cohabitation in early 1984 and married, for the first time, in the same year.  The parties separated in 1989 and divorced in 1990.  The parties remarried in 1991 but separated on 6 April 2008. 

3. At this time the wife moved out of the matrimonial home, only to return in October 2009 for the purpose of an attempted reconciliation.  The reconciliation was unsuccessful.  The husband moved out of the matrimonial home. 

4. Final separation occurred in December 2009.  The parties have remained living separately since that date however they are not divorced. 

5. There are three children of the relationship, Ms K who was born in 1986, Mr L who was born in 1993 and J who was born in 2002. 

6. The parties purchased the property at C Street property in 1993.

7. Between 1991 and 1995 the husband was employed as a painter while the wife participated in home duties which included caring for the children. 

8. At some time between late 1996 and early 1997 the parties became directors of D Pty Ltd (“the company”) and established the Winton Family Trust (“the family trust”) of which the company is the trustee.  The wife was also the secretary of the company. 

9. From this time until the date of final separation both parties had active involvement in the company and the family trust.  The wife was responsible for book keeping and administration while the husband was responsible for the labouring side of the business. 

10. Since separation the husband has continued to operate the company and the family trust.  The wife has had no involvement and received limited dividends. 

11. In 1998 the parties purchased the land situate at B Street (“the B Street property”).

12. In 2000 the parties sold the property at C Street and built a house at the B Street property.  The parties began residing at the newly built property in 2001.  The wife continues to reside at this property with the parties’ youngest son. 

13. In 2005 the parties purchased the property at C Street (“C Street property”).  This property was rented by the husband’s mother between 2006 and 2008 and then the husband’s brother between 2008 and 2012.  The husband currently resides at this property. 

14. The C Street property was subdivided shortly after purchase.  In 2006 one of the blocks of land was sold and in 2009 another block of land was sold. 

15. During the relationship the husband ran a small stock of cattle, which he continued to do post separation. 

16. On 24 September 2012 the wife obtained a family violence order against the husband. 

17. On 12 November 2014 his Honour Justice Benjamin (for the reasons which he gave then) made the following orders:

    1.The property and costs orders made 17 July 2014 (numbers 1 to 17) are vacated.

    2.These proceedings be listed for final hearing, with priority, at 10.00am on 11, 12 and 13 February 2015 at Launceston.

    3.The mother pay the hearing fee on or before 23 January 2015.

    4.The parties be restrained from filing further material apart from the affidavits of the single experts after 19 December 2014 without leave of the court.

    5.The husband pay the wife’s legal costs of these proceedings and the application to vacate the orders made 17 July 2014 on the basis of ninety per cent of her practitioner/client costs and one hundred per cent of her practitioner/client disbursements.

    6.Leave be given for the parties to have the matter relisted before me on the giving of seven (7) days notice to the court and the other party in the event that they require further directions.

    7.Leave be given to the parties to issue subpoena to produce documents to Launceston City Council.

    IT IS DIRECTED

    8.Mr F and Mr E are appointed as single experts for the purpose of preparing updated reports in these proceedings as to the valuation of the chattels and real property (respectively).

    9.The parties provide instructions to those experts within twenty one (21) days from the date of this order.

    10.Each party pay one half of the fees of the experts and in the event that the husband does not do so IT IS REQUESTED the wife pay the husband’s share of such fees and on payment of such of the husband’s share by the wife it will become a debt due to the wife and interest will accrue on those in accordance with the Family Law Rules.

    11.If the husband is given seven (7) days notice directed by ordinary pre-paid post to his address at 15 Benjamin Street, Trevallyn Tasmanian and care of his solicitors, he will make the property available for inspection in accordance with that notice.

    12.Each party file and serve the affidavits upon which they rely (and leave is given to the parties to refer to previous affidavits to which they have already prepared and filed in these proceedings) for the purpose of this hearing, on or before 4.00pm 19 December 2014 together with sworn statements of financial circumstances.

    13.The wife shall provide to the husband, within twenty one (21) days copies of all documents, papers and applications she made to the Launceston City Council in relation to the zoning and/or sub-division change of the B Street property.

    14.The husband shall provide to the wife, within twenty eight (28) days, full discovery of all documents relating to cattle sales made by him or for him from 1 July 2012 to the current date and full details of any cattle or other livestock that he has in his possession or control at this present time.

    15.         The parties shall provide a case outline, in electronic word format, to my administrative associate two (2) business days before the commencement of the hearing setting out:-

    (a)the orders they seek;

    (b)       a chronology;

    (c)       the documents upon which they rely; and

    (d)       an outline of their arguments.

    16.A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS NOTED

    17.The husband was present in court and represented by counsel on the day the matter was listed for hearing.

    IT IS CERTIFIED

    18.Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

18. On 12 February 2015, Registrar Weidmann made a costs assessment order of $23,070.26 in favour of the wife’s lawyers, Philip Welch, Barrister and Solicitor against the husband.

19. On 18 March 2015, his Honour Justice Benjamin made a consent order in Chambers which provided:

    1.          BY CONSENT enforcement of any costs assessment order obtained by the applicant wife be stayed until the substantive property application between the parties has been heard and determined.

    …

    3.           BY CONSENT the husband's application in a case filed 10 March 2015 be dismissed with no order as to costs.”

Orders sought

1. The wife filed a Case Information document on 16 July 2015.  The final orders sought by the wife were as follows:

   1.That in lieu of any payment to be made by the Wife to the Husband, the Wife shall pay to her solicitor the Wife’s legal costs ordered to be paid by the Husband by paragraph 5 of the Order made on 12^th November 2014 as ordered by the Costs Assessment Order made by Registrar Weidmann on 12^th February 2015. 

   2.That within thirty (30) days of the date of these Orders the Husband shall :-

   a.sign all documents and transfers so as to assign to the Wife his interest in [B Street] property in Tasmania as more particularly contained and described in Certificate of Title Volume … Folio 1 (“the [B Street] property”); and

   b.sign and return discharge of mortgage authority forms provided to him by or on behalf of the Wife in respect of mortgage number … and ... 

   3.That within thirty (30) days after the Husband complies with the terms of paragraph 2 of these Orders the Wife shall sign any documents, authorities or papers to cause mortgage number … and mortgage number … to be discharged. 

   4.That as from the date of these Orders the Wife shall pay and indemnify the Husband in respect of all outgoings in relation to the [B Street] Property payable in respect of the period as and from the date of these Orders. 

   5.That within thirty (30) days of the date of these Orders and contemporaneously with the Husband’s compliance with paragraph 2 of these Orders, the Wife shall sign all documents and transfer so as to assign to the Husband her interest in the property at [C Street] property as more particularly contained and described in Certificate of Title Volume … Folio … (“the [C Street] property”) and the Wife shall sign and return any discharge of mortgage authority forms provided to her by or on behalf of the Husband in respect of mortgage number .... 

   6.That within thirty (30) days of the date of these Orders and contemporaneously with the transfer referred to in paragraph 5 hereof, the Husband shall :-

   a.lodge at the Land Titles Office a discharge of mortgage number … executed by authorised officers of the Commonwealth Bank of Australia so as to discharge and release the Wife from all liability in relation to that mortgage and associated mortgage loan; and

   b.provide a copy of the said executed discharge of mortgage of the Wife’s solicitor. 

   7.That the Husband shall pay and indemnify the Wife in relation to all outgoings in respect of  the [C Street] property including rates, water rates, land tax, insurance premiums and mortgage interest and principal. 

   8.That within seven (7) days from the date of these Orders the Wife shall resign as director and secretary of the company [D Pty Ltd] (CAN …) and within seven (7) days of that resignation the Husband shall lodge with the Australian Securities & Investments Commission in an approved form details of the Wife’s resignation as director and secretary of that company. 

   9.That within seven (7) days of the date of these Orders the Wife shall transfer the whole of her interest in the shareholding of the company [D Pty Ltd] by forwarding to the Husband and/or secretary of that company a share transfer form, the consideration being these Orders. 

   10.That within thirty (30) days of the date of these Orders the Wife shall execute all documents as are provided to her by the Husband or his solicitor or account (sic) so as to transfer to the Husband or his nominee any interest the Wife has in any loan account in the company [D Pty Ltd] or in respect of [Winton] Family Trust (ABN …). 

   11.That the Husband shall pay and indemnify the Wife and forever hereafter keep her indemnified in respect of all or any liability of hers in respect of the company [D Pty Ltd] and/or the [Winton] Family Trust, including any liability of the Wife to the Commissioner of Taxation arising from her interest in the company and/or the [Winton] Family Trust, and any taxation, interest or penalties payable by her as a result of any assessment or receipt of a Division 7 A Dividend by her arising from the transfers pursuant to these Orders, such indemnity to include indemnity for any tax payable by the Wife, as a result of the assignment of any loan account arising pursuant to these Orders. 

   12.That within thirty (30) days from the date of these Orders, the Wife shall make available for collection by the Husband, or his agent, at a time and date agreed between the parties to remove from the [B Street] property the items set out in the annexure attached hereto and marked with the letter “A”.  (Annexure not included in published judgment)

   13.The Court declares that the Wife shall be entitled, as against the Husband, to the household furniture and effects formerly used by the parties jointly but now in the possession or control of the Wife, including the items set out in the annexure attached hereto and marked with the letter “B” including all monies at banks, credit unions, savings accounts or investments in the sole name of the Wife.  (Annexure not included in published judgment)

   14.In the event that either party refuses or neglects to execute any transfer documents or discharge of mortgage authorities necessary to give force and effects to all or any of these Orders, that pursuant to Section 106A, the Registrar of the Family Court of Australia at Launceston be appointed to execute such transfer documents or discharge of mortgage authorities in the name of the defaulting party and that:-

   a.the Registrar do all acts and things to give force and effect to these Orders;

   b.the non-defaulting party be at liberty to apply for a Costs Order against the defaulting party. 

   15.That unless specified in these Order:

   a.each party is solely entitled to the exclusion of the other to all other property or chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides a condition for payment out of such entitlement;

   b.each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

   c.any joint tenancy of the parties in real or personal property is hereby expressly severed. 

   16.That the Husband pay the Wife’s legal costs of these proceedings as from the 12^th November 2014 not including any costs which are the subject of the Costs Assessment Order made on the 12^th February 2015. 

1. The husband did not file an Amended Response or Case Outline instead relying upon his Affidavit filed 13 July 2015 which outlined the following:

   6.In relation to organising settlement with the Respondent, I am seeking an amicable out of the court settlement to all assets/assets in common as a 50/50 equal split. 

   …

   11.I am prepared to negotiate an amicable out of court settlement with the respondent, such that she can pay the difference in value in order to keep the main house at [B Street] property … with all furniture and effects therein provided that I retain possession of the land/acreage, arboricultural and farm equipment and sheds thereon by separating the house from the land to separate title subject to council approval.  I also wish to retain possession of the house at [C Street] property ...  Should council approval for separate title not be obtained for [B Street] property …, this property can be sold and the proceeds split to effect settlement. 

2. The husband also sought orders for costs. 

Documents relied upon

1. At trial the wife relied upon the following documents:-

   ·Initiating Application filed 11 July 2012 and Amended Initiating Application filed 11 July 2014;

   ·Financial Statements filed on 11 July 2012, 7 April 2013 and 18 December 2014;

   ·Affidavits of the wife filed 11 July 2014 and 18 December 2014;

   ·Affidavits of Mr E filed 11 July 2014 and 25 June 2015;

   ·Affidavits of Mr F filed 11 July 2014 and 10 July 2015;

   ·Costs Assessment Order made 12 February 2015.

2. At trial the husband relied upon the following documents:-

   ·Financial Statement filed 13 August 2014;

   ·Affidavits of the husband filed 17 December 2014 and 13 July 2015.

Summary of relevant evidence

1. At the commencement of the trial the Court was informed that the single experts were at the Court premises.  Mr E and Mr F were therefore called to give their evidence first.

Mr E

1. Mr E is a certified practising valuer and property consultant who undertook market valuations of the C Street property and the B Street property.  Mr E filed an Affidavit on 11 July 2014 annexing the valuation report for the C Street property dated 5 June 2014 and the valuation report for the B Street property dated 11 June 2014. 

2. The valuation report in relation to the C Street property indicated that the market value of the property as at 4 June 2014 was $159,000. 

3. The valuation report in relation to the B Street property indicated that the market value of the property as at 20 January 2015 was $550,000. 

4. During his oral evidence Mr E said that there was potential for subdivision of the property in the future, but problems could undoubtedly arise with the subdivision.  The Court did not receive any other reliable evidence about the possibility of a subdivision of the property nor the cost of the same.

Mr F

1. Mr F is an auctioneer, valuer and a director of Armitage Auctions Pty Ltd.  Mr F undertook an inspection and valuation of items at the B Street property.  He filed an Affidavit on 11 July 2014 annexing the valuation report dated 25 June 2014. 

2. The valuation report in relation to items at the B Street property indicated a market value as at 25 June 2014 as $160,930.  At trial a letter was tendered and marked Exhibit “1”.  The letter was prepared by Mr F and indicated an amended valuation of a number of items which were valued from photographs.  The total valuation of these items was $21,900. 

3. During the evidence of the expert, the Court also received Exhibit “2” and “3”.  After brief cross-examination by the husband, in which the expert admitted that it was difficult to value items from photographs, he was released.

The wife

1. On the first day of trial the wife commenced her oral evidence.  She conceded that she had completed a very basic computing course at TAFE a few years ago, but had not completed the accounting course.  She also conceded that she had completed a course in 2009 and had achieved a certificate but had not carried out any work in that profession since.

2. The wife was then cross-examined by the husband about her contributions, both to the properties and in relation to the care of the children.  She conceded that the husband had in the past done significant work on the farm and that they had both benefited from that work.

3. She was also cross-examined about steps she had taken for rezoning and subdivision of the properties.

4. After brief questions from me and re-examination by her counsel, the wife was released.

5. Whilst at times the wife’s response to cross-examination by the husband was not entirely useful or appropriate, I take into account the difficulties the witness had when being cross-examined by the husband.

6. Overall her evidence is considered to be more reliable than that of the husband.

The husband

1. The husband gave his occupation as an arborist.  He was then cross-examined by counsel for the wife.

2. At the commencement of that evidence he was asked questions about a section of his affidavit which was sworn on 16 December 2014.  He conceded that it was his signature.  He was asked whether he had read the affidavit before he signed it.  His answer was “No, as if I would”.  He then said that his lawyers would not do as he told them.  He also indicated that he had had difficulties with the procedure and orders of the Court in the past.

3. He was then asked about the items on Mr F’s valuation and the whereabouts of various items which had been on the property at the time of separation.

4. Overall the response by the husband to the questions by the counsel about the whereabouts of items and his cooperation in obtaining valuations of relevant items was unsatisfactory.

5. His answers to questions about his possible benefit from his late father’s Will and the value of the cattle in his possession at one time could not be considered reliable.

6. I do accept his evidence about the condition of the motor vehicle in his possession.

7. When asked about his income from the arborist/tree-felling business the husband was given a s 128 Certificate.  He admitted that he had received cash for work he carried out which was not declared in his tax returns, describing it as “a bit of cream”. 

8. On the second day of the trial the husband produced documents for inspection by the wife and her counsel.  His evidence indicated that he claimed to have paid the rates and taxes and outgoings until June 2013.

9. He was then cross-examined at length about the claimed outgoings for the business and various credits and debits in the accounts.  When asked about the monies withdrawn he said that in relation to some funds “I spend it as fast I can”.  When he was asked what he would spend it on he said that he goes fishing a lot and that he goes to the casino every Wednesday night.  When asked whether he had kept cash at his home he said he “probably had a couple of grand there”.

10. During cross-examination he also conceded that during the period 2012/2013 the wife had used monies from cattle sales as part of her contribution to half of the school fees.

11. During cross-examination he also conceded to a significant degree (if not entirely) the wife’s evidence about the time the children had spent in various households.

12. In relation to the superannuation with AMP the husband conceded in cross-examination that he had not made any contributions since separation.  In relation to Exhibit “9”, superannuation account as at 22 July 2015, he said “She can have it if she wants it”. 

13. During cross-examination the husband was often not responsive.  At times he was very argumentative.  He conceded that he had been violent towards the wife during their relationship and admitted to threatening to kill her.  He also claimed that she had been aggressive and violent at times as well. 

14. He conceded that he may have a beneficial interest in his late father’s estate.

15. He said that he would not pay the costs to the wife which he had been ordered to pay.

The Law

1. The Family Law Act 1975 (Cth) (“the Act”) sets out the law in relation to property settlement. The significant sections for this matter are s 79 and s 75(2).

   Section 79 – Alteration of property interests

   (1)In property settlement proceedings, the court may make such order as it considers appropriate:

   (a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

   (b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;

   including:

   (c)an order for a settlement of property in substitution for any interest in the property; and

   (d)an order requiring:

   (i)either or both of the parties to the marriage; or

   (ii)the relevant bankruptcy trustee (if any);

   to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

   …

   (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.

   (4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

   Section 75(2) – matters to be taken into consideration in relation to spousal maintenance

   (2)      The matters to be so taken into account are:

   (a)       the age and state of health of each of the parties; and

   (b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)commitments of each of the parties that are necessary to enable the party to support:

   (i)       himself or herself; and

   (ii)a child or another person that the party has a duty to maintain; and

   (e)the responsibilities of either party to support any other person; and

   (f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

   (j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)the need to protect a party who wishes to continue that party's role as a parent; and

   (m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

   (n)the terms of any order made or proposed to be made under section 79 in relation to:

   (i)         the property of the parties; or

   (ii)vested bankruptcy property in relation to a bankrupt party; and

   (naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)        a party to the marriage; or

   (ii)a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)the terms of any financial agreement that is binding on the parties to the marriage; and

   (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

   (3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

   (4)      In this section:

   “party” means a party to the marriage concerned.

2. The High Court of Australia decision of Stanford v Stanford (2012) 247 CLR 108 provides at paragraph 35, 36 and 39:

   35.It will be recalled that s 79(2) provides that "[t]he 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". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub‑sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   36.The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.

   …

   39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered.

3. In the Full Court of the Family Court of Australia decision of Bevan & Bevan (2013) FLC 93-545 the majority of the Court referred to the decision of Stanford (supra) and said:

   70.In our experience, the circumstances described in the paragraph above encapsulate the vast majority of cases. Hence, the reminder in Stanford of the pivotal role of s 79(2) is unlikely to have any impact in most cases, although it will serve as a reminder to trial judges that the precondition to making any order is a finding that it is just and equitable to do so.

4. It is appropriate therefore to identify the existing property interests of the parties and their liabilities and consider the provisions of s 79(2) and thereafter if appropriate, apply the provisions of s 79(4).

5. Taking into account the evidence of the expert valuers and the limited information provided by the parties, the known assets and liabilities to be brought into account are as follows:

   Assets  

   Jointly owned property B Street property  $550,000.00

   Property at C Street property  $159,000.00

   Items to be retained by the wife as valued by Mr F,

   including a motor vehicle  $11,705.00

   Items to be retained by the husband as valued by Mr F’s

   valuation  $124,775.00

   Cattle previously retained by husband according to estimate             $8,500.00

   Monies in wife’s bank account  $2,000.00

   Monies in husband’s bank account  $2,000.00

   TOTAL ASSETS  $857,980.00

   Liabilities

   Commonwealth Bank of Australia mortgage C670005

   secured over C Street property (at 6/7/2015)  $69,757.00

   Rates arrears  $1,650.00

   TOTAL LIABILITIES  $71,407.00

   NET ASSETS  $786,573.00

   Husband’s superannuation AMP Flexible Super  $26,585.00

   TOTAL COMBINED ASSETS AND LESS LIABILITIES PLUS

   SUPERANNUATION  $813,158.00

6. It is significant to note that the assets and liabilities set out above do not include possible other assets retained by the husband.  Due to the poor quality of his compliance with the rules and the unreliable nature of the evidence he presented to the Court, it is appropriate to accept the submissions on behalf of the wife that the husband has retained significant amounts of money and assets not disclosed to the Court.

7. Another factor which is not included above is the order which has already been made by the Court which provided for the husband to pay to the wife’s solicitors the sum of $23,070.26 in accordance with the order of 12 February 2015 and the enforcement of which was stayed by the order of 18 March 2015.

8. The wife is asking the Court to offset this amount against any amount to which the husband may be entitled pursuant to the property settlement.  In view of the husband’s indication that he will not pay any monies ordered by the Court to be paid by him, this is an appropriate option for the Court to consider.

9. Taking into account the interests of the parties as they currently exist there is no difficulty in the Court being satisfied that it is just and equitable to make a property settlement order.

Contributions (s 79(4) (a)-(c))

1. I accept that during the relationship the husband made significant contributions.  These included the small equity in real estate house he owned at G Street, H Town.  Subsequently, the parties purchased other real estate and set up the business.  I also accept that the husband has made a significant contribution during the marriage from his hard work.  The wife accepted that the husband was a good provider prior to separation.

2. I also accept the evidence of the wife that throughout the marriage she had the primary care and responsibility for the duties involved in caring for the three children.  There was also a significant contribution by the wife as a result of J’s diagnosed condition, both during the period of the parties’ relationship and since separation.

3. The evidence of the wife also indicates that she was primarily responsible for household tasks with minor contribution by the husband.  The husband was responsible for the maintenance of the properties.

4. During the relationship of the parties the wife was actively involved in helping the husband establish and run the business and the family trust doing a significant amount of the paperwork and keeping the records, whilst the husband did the significant amount of labour.

5. Since the separation of the parties the wife has been the primary provider for the children.  This includes the time when the parties previously separated and since their last separation in March 2013.

6. This contribution has been significant taking into account J’s need for treatment and ongoing day to day support.

7. The husband has made some contribution to the care of the children in the past.

8. Since the separation the husband continued to receive income from his work.  The wife has received only a very small dividend payment from the business which she helped the husband establish.

9. Since the separation of the parties the husband has had the use of part of the property at the B Street property, including the outbuildings and land and was conducting his businesses to some extent from this property.  The husband at the same time was paying the outgoings in relation to the property.

10. The wife has had the use of the house at the B Street property to the exclusion of the husband who has had the use of the C Street property.

11. The husband has paid some of J’s school fees and made some contribution to his needs since separation.  However, the wife has primarily been responsible for maintaining J’s day to day needs

12. I therefore conclude that the husband has made a significant contribution due to his hard work over the years of the parties’ cohabitation and maintaining the properties and business since the separation.  I also find that the wife has made a significant contribution by way of her efforts in the business prior to the separation and her ongoing role in household duties and caring for the family as a whole and specifically providing the care and supervision for J with his special needs.

13. Subsection 79(4)(d) requires the Court to consider the effect of any proposed order upon the earning capacity of either party to the marriage.

14. The husband seeks to retain part of the B Street property in order to continue earning income from using that property.  The wife seeks to retain the property.

15. The evidence concerning the possible subdivision of the B Street property was insufficient for the Court to make any order which would allow the husband to retain the land and the wife to retain the home.  It is likely therefore that an order which provides for the wife to retain the B Street property will have a small impact upon the husband’s capacity to earn an income.  He does however retain his skills.

16. None of the orders proposed would have any effect upon the limited earning capacity of the wife.

17. The factors referred to in s 75(2) so far as they are relevant are as follows:

(a)The age and state of health of each of the parties;

1. The parties are of similar age.  Neither party has any significant health issues.

(b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

1. The husband’s evidence about his income, property and financial resources was not reliable.  There is some evidence which suggests that he may be entitled to a distribution from his late father’s estate. 

2. I accept the evidence of the wife that she has limited capacity for appropriate, gainful employment, taking into account the number of years she has spent caring for J and the little experience she has in any field for employment.

3. The husband however has the capacity to continue to earn income as an arborist, tree-trimmer and feller.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

1. J was born in 2002 and is now aged 14.  He does however have significant health issues.  The wife will continue to play the primary role in providing care and assistance for J.

(d)commitments of each of the parties that are necessary to enable the party to support: 

(i)       himself or herself; and

(ii)      a child or another person that the party has a duty to maintain;  and

(e)the responsibilities of either party to support any other person;

1. As indicated above the wife and husband will continue to have the responsibility to support J, however, the husband has in the past only paid a limited amount of child support so it is likely that the wife will bear this significant responsibility.

(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)any law of the Commonwealth, of a State or Territory or of another country; 

or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party;

1. The wife has been in receipt of limited pension.

(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;  and

1. This is not a significant factor.  Both parties seek to maintain a reasonable standard of living.

2. Subsections (h), (ha) and (j) are not relevant.

(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

1. The husband has been able to continue his earning capacity.  In contrast the wife’s role as homemaker and parent has significantly reduced her earning capacity.

(l)       the need to protect a party who wishes to continue that party's role as a parent;

1. The wife wishes to continue to provide substantial care for J.

2. Subsections (m), (naa) and (na) are not relevant.

(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

1. It is significant in this matter that the husband indicated on oath in this Court that he will not make any payment of the costs order previously made by this Court.

2. It is also significant that the husband’s evidence raised substantial doubt about his disclosure of his assets and income and his possible or likely benefit from his late father’s estate.

3. Subsections (p) and (q) are not relevant.

Conclusion

1. The Court remains satisfied that it is just and equitable to make an order by way of property settlement.

2. Considering the significant contributions of the wife, both financial and non-financial, her contributions during the relationship and since separation are readily assessed at 55 per cent.

3. The adjustment to be made for factors under s 75(2), including but not limited to her significant ongoing responsibility in relation to the care of J, her much more limited earning capacity and the possibility that the husband has retained assets and income which have not been disclosed, warrant a further adjustment as sought by the wife for another 12 per cent.

4. It is therefore just and equitable, taking into account the factors in s 79 and s 75(2) that the wife receive an adjustment being the equivalent of 67 per cent of the known net assets and liabilities of the parties, including the superannuation.

5. As previously indicated the total net assets and superannuation amounted to $813,158.  Sixty-seven per cent of this is $544,815.86 (the wife’s entitlement). 

6. The wife seeks to retain:

   Property at B Street property   $550,000.00

   Items proposed to be retained by the wife

   from Mr F’ valuation  $10,205.00

   The motor vehicle   $1,500.00

   Her savings in the bank  $2,000.00

   TOTAL:  $563,705.00

7. The amount of $563,705 less the wife’s entitlement of $544,815 amounts to $18,890.  On 12 February 2015 and 18 March 2015 orders were made that the husband pay the wife $23,070.26 for costs.  The evidence of the husband confirmed the unlikelihood of the husband complying with any order for payment to the wife.

8. It is therefore appropriate and just and equitable to offset the sum payable by the husband ($23,070) against the amount otherwise payable by the wife ($18,890).  It is not practical to include the remaining sum of $4,180 as an amount payable by the husband to the wife nor was she seeking such a payment.

9. It is therefore just and equitable to make the orders sought by the wife in the terms set out at the commencement of this judgment.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 February 2016.

Associate: 

Date:   29 February 2016