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Property Dispute Between Ex-Spouses Married for 19 Years

Bulow & Bulow [2017] FCCA 2657 (22 November 2017)

The Parties after 19 years of marriage, separate and a dispute over property division occurs, taking into consideration their differing initial contributions, superannuation, splitting order, and costs on interim applications.  The respondent disputes the applicant's sale of their former matrimonial home and the partial property settlement. 

Facts:

Mr & Mrs Bulow both seek final orders of a 60:40 division of the non-superannuation assets of the parties in their own favour. Respondent Applicant Ms Bullow also seeks an order for costs against Respondent Mr Bulow as to three contested interim applications during these proceedings.

Respondent argues that his conduct relating to opposition of the applications was not unreasonable or of such nature to warrant costs in favor of applicant.

Applicant seeks a splitting of the superannuation entitlements of the respondent in order to effect an equalisation of the parties’ superannuation entitlements.

The respondent opposes any order that would result in an equalisation of the superannuation entitlements of the parties based on his current level of superannuation.

The applicant says that at the time of the parties' marriage, she had $40,000 equity in her property at P Street, Suburb Q, owned a Motor Vehicle and furnishings inside the house -- superannuation entitlements valued under $11,000.

The husband owned a Motor Vehicle. When the applicant wife received the separation package from the husband amounting to $26,896, $17,000 was applied to the mortgage on the property, $9,642 to the joint savings account for home improvements and expenses, and the husband's university fees. Contrary to the applicant's position, respondent seeks an equal division of the financial value of the superannuation pool as of 20 November 2012, the date of separation. 

Issue:

Whether or not the split order of the superannuation interests is correctly opposed by the husband.

Whether or not the sale of the former matrimonial home is correctly opposed by the husband. 

Applicable law:

Family Law Act 1975 (Cth), ss 475(2), 79(2), 79(4)(a)-(g), 117(1), (2) & (2A)parties to proceedings generally must bear their own costs but if the Court is of the opinion that there are circumstances justifying it doing so, it may make such order as to costs as it considers just. 

Federal Circuit Court Rules 2001 (Cth), Schedule 1 - provides for the costs in relation to the application for costs orders. 

Hickey & Hickey [2003] FamCA 395(2003) FLC 93-143 - in determining the appropriate orders for the division of matrimonial assets, value the property, liabilities and the financial resources of the parties, the trial date should first be identified, and then contributions of the parties assessed.

Petruski & Balewa [2013] FamCAFC 15in assessing contributions, evaluating the extent of the contributions of all types made by each of the parties in the context of their particular relationship is required. 

Analysis:

On considering all evidence provided by both parties, the applicant made significantly greater contributions than the respondent. The former matrimonial home was purchased using the proceeds from the sale of her property in Suburb Q. 

The mother has demonstrated that she has made a greater contribution towards homemaking and parenting over the relevant period and is likewise entitled to a standard of living reasonable in all circumstances. 

As to application of the applicant wife to costs having regard to the matters identified in Family Law Act s 117(2A), it should be noted that the opposition of the respondent to the perfectly orthodox approach proposed by the wife for the sale of the former matrimonial home was unreasonable and caused her to incur unnecessary costs. 

Conclusion: 

The court ordered a 60:40 division of the non-superannuation assets of the parties in favour of the wife. Orders for costs in the amounts sought by the applicant are instituted, specifically an award for the applicant costs in the total amount of $11,889. 

 

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