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CASE GUARDIAN SOUGHT PROPERTY SETTLEMENT ORDER TO ALTER THE PROPERTY OF THE DE FACTO COUPLE

MYNATT & SIDDALL AND ANOR

FAMILY COURT OF AUSTRALIA

[2020] FamCA 40

 

This case involved an application seeking a property settlement order to alter the property, assets, financial resources, and liabilities of the parties. 

 

Facts:

Both parties have Case Guardians appointed to them.  Ms. B Mynatt (the wife’s mother and the applicant) was appointed Case Guardian for the de facto wife (“the wife”), diagnosed with major depressive disorder and PTSD. In contrast, Mr. Siddall (the husband’s father and the 2nd respondent) was appointed Case Guardian for the de facto husband (“the husband”), who had a mental illness and diagnosed with delusional disorder. 

The applicant sought a property settlement order and further Amended Initiating Application to reduce the frozen amount from $300,000 to $250,000, which was consistent with the application for a property settlement order. Counsel for the applicant submitted that most of the debt attributed to the husband has no nexus to the de facto relationship.  It would either not be included on the balance sheet or be added back against the husband during final property proceedings.   The respondents opposed that order being made.

The only significant asset is half of the former matrimonial home which the husband held as tenants in common with the 2nd respondent, who had been joined in the proceedings as the applicant sought the sale of the former matrimonial home.  The husband’s half interest in the former matrimonial home has an agreed value of $737,500.  There is a first mortgage registered on the property to S Bank.  There are also five caveats lodged against its title.  Respondents’ former solicitors, T Lawyers, were joined as parties to the proceedings because they claimed that respondents owed them outstanding legal fees under a cost agreement which created a charge against the property.

Issue:

Whether it is just and equitable to make an order altering the property, assets, financial resources, and liabilities of the parties.

Held:

The Court, in determining whether it is just and equitable to make an order altering the property, it considered s 90SM(4)(d)-(g) and the history of contributions of the parties. 

The Court considered the proportion of the net assets, which each party shall hold based upon the findings as to contributions.   The husband’s only interest in the property is the equity in the former matrimonial property.  He had debts, and he had no superannuation.  On the other hand, the wife receives Government benefits and rent assistance in the sum of $600 per week. She had $2,500 in the bank, a motor vehicle of $2,000, and household contents in the amount of $5,000. She has no superannuation and no liabilities.  The Court concluded that there should be a 12.5 percent adjustment in favor of the wife.

The Court concluded that the contributions of the wife in the role of homemaker and parent during the cohabitation were made significantly more arduous by the family violence perpetrated by the husband upon her.[1] Her contributions as a role of a parent after separation, given the wife’s PTSD, were made significantly more arduous, even though the physical violence had ceased. The Court assessed the parties’ contributions to the net asset pool as to 27.5 percent to the wife and 72.5 percent to the husband.

The result of the findings in respect of contributions and s 90SM(4)(d)-(g)[2] considerations, would lead to the wife receiving 40 percent of the net assets or a sum of $168,000.   The Court considered that to be an appropriate and just and equitable outcome.



The Court considered that the contributions of the wife in the role of homemaker and parent during the cohabitation were made significantly more arduous by the family violence perpetrated by the husband upon her.  Her contributions as a role of a parent after separation, given the wife’s PTSD, were made significantly more arduous, even though the physical violence had ceased.

 

 

[1] Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757)

[2] Family Law Act 1975 - Sect 90SM

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