Exam question (Autumn 2018)
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Western Sydney University *
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200633
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Law
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Feb 20, 2024
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Question 1 (50 marks) Write an appeal submission addressing four (4) grounds of appeal (errors of law) from this judgment on behalf of either the wife or husband. Refer to relevant legislative provisions and relevant cases to support your submissions. IN THE FAMILY COURT OF AUSTRALIA IN SYDNEY 1549 OF 2015 BETWEEN: FRANCINE URQUART Applicant -and- ROBERT CORMAN Respondent REASONS FOR JUDGMENT (FICTIONAL PROBLEM) Coram: THE HONOURABLE JUSTICE KINGSMAN Dates of Hearing: 20, 21, 22 June 2017 Date of Judgment: 18 July 2017 1. This case concerns the division of property pursuant to Section 90SM of the Family Law Act 1975 (Cth) (“the Act”) arising from the demise of a 17 year de facto
relationship. 2. The Applicant, Ms Urquart, brought an Application before this Court on 16 August 2015 seeking Orders with respect to the various items of property owned by the parties and an application for spousal maintenance. The Respondent, Mr Corman, opposed those Orders in a Response filed on 19 September 2015 and sought opposing orders. 3. The evidence given in the three day hearing was unremarkable. There were very few instances where it was necessary to discern issues of credit, or where there were disputes of a significant factual nature.
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4. The issues that arose in this application included the threshold issue about whether it is just and equitable to divide the asset pool, the contributions made to the asset pool by the parties, the distribution of property that arises from the breakdown of this relationship, the ultimate determination pursuant to Section 90SM, as well as issues concerning maintenance. Background Facts 5. The uncontested evidence by the parties establishes the following findings of fact. The Applicant and Respondent lived as a de facto couple for 17 years commencing in May 1998. They met in 1997 after the Applicant moved back to her hometown of Gerringong on the NSW South Coast after winning the lottery in 1995. The Applicant was a primary school teacher who purchased an OzziLotto ticket and won the jackpot of $3 million. 6. By the time they separated, the Respondent’s assets were worth more than four times those of the Applicant. 7. The Applicant is 42 years old and was born on 10 January 1976. She is not currently employed, but relies on the New Start Allowance and other government benefits. She has not worked as a teacher for over 8 years after being diagnosed with a brain tumour in 2010, which she subsequently has been in remission for since 2012. However, she subsequently was clinically diagnosed with depression, anxiety and agoraphobia, being a fear of being in public places and spaces causing a feeling of being unsafe. 8. Since the separation in October 2014, she has relocated to Waterloo in Sydney where she spends her time painting works of art. She has won several major art prizes but has not yet received any commissions for work. Recently she was offered a commission by the Australian Government of $500,000 to paint a portrait of the former Governor General, but no income will be available from this until the portrait is completed. 9. The Respondent is now 46 years of age and was born in 1972. He has lived for 20 years on his cattle and horse property called ‘Faraway Downs’ near Gerringong, unencumbered by any mortgage. He spends most of his time in this enterprise, and as a member of the local volunteer surf lifesaver. 10. The Applicant purchased a house in Gerringong in 1994 and another in Camden in 1996 in which she resided. The Applicant substantially renovated the Camden property in 1996 with the
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funds from the lottery win of $3,000,000 in 1995. The Applicant lived with her parents while the renovations took place, and occasionally at the Respondent’s property near Gerringong when they first started dating. In April 1997 the Applicant moved int
o the Respondent’s home at Faraway Downs and rented out Gerringong and Camden properties. 11. The Respondent worked and derived an income from the cattle and horse property which was owned by his father and built a home, fences and stockyards on it. The Respo
ndent’s father passed away in July 2002 and the Respondent inherited Faraway Downs, valued at $4,000,000. The Respondent’s house on the property burned down in local bushfires in 2002. The Applicant assisted the Respondent to rebuild it in 2005, providing labour and $200,000 to replace fences and to purchase equipment to make the property self-sufficient in energy and water. During the 12 months’ rebuilding, the Applicant and Respondent lived in the shed on the Applicant’s Gerringong property. In 2009 the Applicant purchased 250 head of cattle and 20 horses at the cost of $400,000, which were included into the existing livestock herds on the Respondent’s property. Occasional sales of cattle and horses provide the Respondent’s main source of
income. 12. The Respondent and the Applicant largely kept their financial affairs separate. They did this by consent. They did not have detailed knowledge of each other’s financial circumstances, although on occasions they did discuss each other’s
respective financial circumstances and future plans. The Respondent’s property provided most vegetable and meat supplies, and was self
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sufficient in electricity and water. The Applicant did most of the work in the vegetable garden on the property, and provided a larger share of the cooking and domestic chores. Otherwise, expenses were generally shared equally. The Respondent was responsible for all costs associated with the property and livestock. 13. The Respondent does not belong to a superannuation fund, but the Applicant has a self-
managed superannuation policy to which she contributes from the rental proceeds of her properties. The Applicant also paid for many overseas holidays the couple took together during their 20 years together, as the Respondent is asset rich but income poor. The Applicant and Respondent were both Platinum Members of the Qantas Frequent Flyer Program, and they accumulated a significant amount of frequent flyer points during the course of the relationship. 14. The Applicant made the Respondent a beneficiary of her superannuation policy in 2009, in the event of the Applicant’s death. The Applicant’s Will does not include the Respondent as a beneficiary, as she has left most of her property to her disabled brother. The Respondent
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included the Applicant as a beneficiary in his Will in 2009. 15. The Applicant was also a fan of the television show ‘The Crown’ which depicts the lives of the British Royal Family, and subsequently became a lover of the dog breed of Corgi. The Respondent bought the Applicant 2 Corgi’s as a ‘get well’ gift in 2009, and whilst they are registered i
n the Applicant’s name, the veter
inarian who attends the livestock on Faraway Downs used to treat the Corgi’s for any health problems for free, as a favour to the Respondent. The Asset Pool 16. The values of the asset pool are set out below. Valuations were obtained for each of the parcels of real property and no challenges were brought concerning the various values of the assets. 17. I find that the asset pool values are agreed as follows:
a. Property ‘Faraway Downs’ near
Gerringong $5,600,000.00 b. Property in Gerringong (Applicant) $850,000.00 c. Property in Camden (Applicant) $1,250,000.00 d. Cash at bank (Respondent) $10,000.00 e. Livestock $1,000,000.00 f. Superannuation (in Self-Managed Superannuation Fund) $600,000.00 g. Qantas Frequent Flyer Points (Applicant x 1,345,000) Unknown h. Qantas Frequent Flyer Points (Respondent x 556,000) Unknown Total $9,310,000.00 18. The liabilities are, by way of summary, as follows: a. Mortgage security against Property in Camden $50,000.00 b. Mortgage security against Property in Gerringong $250,000.00 c. Credit card liabilities (Applicant) $125,000.00
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Total liabilities $425,000.00 NET ASSETS $8,885,000.00 Applying legal principles 19. The threshold issue in the five step process of adjusting family property interests according to Stanford is to determine whether making an order is ‘just and equitable’. I find that it is just and equitable to distribute the parties’ property as the parties are separated, and as the Respondent has almost four times as much in asset wealth as does the Applicant. I apply the same legal principles whether parties have been married or not. 20. I find that the net value of the Respondent’s assets is approximately $6.61 million, while the net value of the Applicant’s assets is approximately $2.275
million. 21. As noted above, there are no issues about the nature or values of the property. However, evidence was given that the Applicant has recently taken out mortgages on her properties in Camden and Gerringong to fund an expensive gambling debt. Most of the credit card liability has also been created by the Applicant to fund her online gambling addiction. I find that the Applicant is responsible for these debts. The Applicant states she is getting professional help to address this addiction. Contributions and additional factors 22. Turning to contributions as required by the Act, I find that the Applicant made significant contributions to the improvement of the Respondent’s property, funding fences, energy, water and livestock. The Applicant also assisted the Respondent to rebuild his fire damaged home and they lived in the Applicant’s shed for 12 months whilst this occurred. The Respondent did provide the Applicant with a home for approximately 15 years, but this must be balanced by the significant homemaker contributions made by the Applicant. I would assess the Applicant’s contribution to the parties’ assets and as homemaker as
30%. 23. According to legal principles, I need to consider whether I should make any adjustment to ensure the parties are fairly placed in their financial affairs and because of any future needs of the parties. The Applicant is not working and only receives the rental income from her two properties, which now must also satisfy gambling debts, mortgage repayments, living expenses in Camden and continue to fund her superannuation. The Applicant has current and
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future financial need. I would have made an adjustment of 15% in her favour, but I think she needs to take responsibility for her financial wastage and negative contributions to the joint property pool through her gambling addiction, so I will not make any further adjustment. 24. I am required by legislative principles to apply the same standards to married couples as to unmarried de facto couples. Applying these standards, I find that it is just and equitable that the Applicant is entitled to 30% of the parties’ joint assets. This will mean that the Respondent will have to make a cash transfer to the Applicant of $390,500.00, to be funded I presume by some sale of land and livestock. This will provide the Applicant with property to the value of $2,665,500.00 which is 30% of the joint assets. 25. With regards to the Qantas Frequent Flyer points accumulated during the relationship, I make orders that the parties each retain the Frequent Flyer points held in their sole names, as the Court is unable to quantify the net worth of such an asset as the value fluctuates depending on what the points are applied to. Maintenance 26. The Applicant also made an application for maintenance under s90SF. The Applicant provided evidence that she receives $1,500 per fortnight in rental income, but has mortgage repayments, credit card repayments and superannuation contributions totalling $1,000 per fortnight. In addition, her fortnightly rent for the Waterloo unit in which she is currently living and living expenses come to $2,000. 27. I find that the Applicant is able to support herself adequately if she actually went out to work as a teacher as he has done in the past. She has significant income earning capacity. I take judicial notice of the fact that teachers are paid a significant amount and that there is a demand for experienced teachers in New South Wales. The Applicant submitted that she suffers depression, anxiety and agoraphobia since her recovery from brain cancer and has panic and anxiety attacks when she considers this form of employment. Alternatively, the Applicant could perhaps sell some of her properties to fund her financial requirements if she wished not to work. She could also make another tree change to the country to reduce her living expenses. Or she could stop funding her superannuation.
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28. The Applicant does have a pending commission for her artwork, but the Respondent should not have to support her financially while the Applicant pursues this whim. In addition, the Respondent is not reasonably able to fund the Appl
icant’s lifestyle as he relies on intermittent and unpredictable livestock sales for most of his income. 29. I will dismiss this application for maintenance. END OF EXAM PAPER
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