Husband and Wife Dispute Property Interests
Corby & Corby [2022] FedCFamC2F 1475 (15 November 2022)
The wife seeks to alter the parties’ property interests. The husband elects not to participate in proceedings. The Court, in resolving this dispute, takes into account evidence in the absence of objection.
Facts
Ms Corby and Mr Corby commenced cohabitation in 1997, were married in 2001 and finally separated in October 2017. They were previously separated for a period of 9 months in 2008. They have three children, Mr H, born in 1998, Mr J, born in 2000, Mr K, born in 2002 and X, born in 2005. The children are now aged 24, 22, 20 and 17 years respectively.
Arising for determination is Ms Corby’s application for orders altering the parties’ interests in property. Ms Corby broadly seeks orders providing for the distribution of the value of the parties’ non-superannuation assets in the proportions of 70% to her and 30% to Mr Corby through the distribution of the sale proceeds of the parties’ former matrimonial home. She also seeks a superannuation split from Mr Corby’s interest in the Super Fund E fund of $32,500. The particulars of her application are contained in her Amended Initiating Application filed 29 August 2022 as amended orally during the hearing.
Athough Mr Corby has filed a Response, he therein seeks no orders. When asked by the Court to identify the orders that he sought, he was neither able to point to them in a document, nor articulate what they were. He declined multiple opportunities to participate in the hearing having read a statement in which he appeared to contend that he is not subject to the Court’s jurisdiction. The basis for any such suggestion was not sensibly articulated by him.
He appears to suggest that what he contends to be a prior agreement between the parties to equally distribute the proceeds of sale of the former matrimonial home, should be upheld. Mr Corby did not avail himself of a further opportunity at the conclusion of the hearing to make any further submissions. Ms Corby sought to “addback” to the assets available for distribution, cash withdrawn by Mr Corby totalling $97,370 from August 2020 until December 2021. Ms Corby contends that the parties had a joint interest in a collection of silver and gold which she estimates to be valued at $60,000. Ms Corby seeks an alteration of the parties’ property interests in order to finally determine the financial relationships between them.
Issue
Whether or not the property interests shall be altered in favor of the wife.
Applicable law
Family Law Act 1975 (Cth) s 81 - relied upon in seeking an alteration of the parties’ property interests in order to finally determine the financial relationships between them.
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 - relied upon in holding that whilst the wife's opinion as to their value is strictly inadmissible, such evidence may be taken into account absent objection to it.
Analysis
Ms Corby ought retain assets worth 67.5% of the overall value of the parties’ assets, being a total sum of $575,567. Mr Corby ought retain assets worth 32.5% of the overall value of the parties’ assets, being a total sum of $277,125. The difference between the parties’ ultimate positions would accordingly be $298,442. Ms Corby currently has assets, including superannuation, worth $34,467. She proposes a superannuation split of $32,500 from Mr Corby’s Super Fund E interest. She accordingly needs a further $508,600 to make up her entitlement, which is marginally more than the equity in the B Street, Suburb C property of $506,560.
She did not seek a payment from Mr Corby over and above the proceeds of sale of the property. It would be procedurally unfair to him to require a payment of the marginal difference. Whilst Mr Corby’s entitlement will be primarily comprised of his self-managed superannuation interest, it is likely that interest is significantly undervalued given the time that has elapsed since it was last valued. Ms Corby seeks to have sole conduct of the completion of the sale of the B Street, Suburb C property, including to be appointed to sign documents on behalf of Mr Corby, and proposes orders facilitating the sale and ensuring the preservation of its equity. Mr Corby failed to participate in these proceedings.
Conclusion
The Wife shall have the sole conduct of the sale of the property situated at and known as B Street, Suburb C (“the B Street, Suburb C property”), including but not limited to appointing the selling agent and conveyancer and nominating the terms and conditions of sale including but not limited to determining the reserve price for the B Street, Suburb C property.
