property

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FLAST Pty Ltd
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FLAST CASE BRIEF of GARBUTT & SALZWEDEL [2019] FamCA 110

This was a Family Law matter about Settlement in relation to a marriage, where the parties seek orders for an adjustment of the matrimonial property.

ISSUE
Although the parties agree that an adjustment should be made in favour of the wife, they disagree as to the size of that adjustment and how much of it should be derived from non-superannuation versus superannuation assets.

FACTS
After 20 years of marriage the parties separated with each of them now in their 50's.  The wife has made a greater homemaker and parenting contribution during the marriage and the husband has made a greater financial contribution. The Court finds that the parties contributions have been equal, apart from a financial contribution made on behalf of the husband in the form of a monetary gift from his parents.

Where the husband has a sizeable loan to his sister, the Court finds that the parts of that loan attributable to payment of the husband’s legal fees and child support obligation should not be included as a joint liability.  

The Husband sought a 40% share of the Asset Pool and the Wife sought a 70% share so the disputed amount was 10%.

HELD

Orders made for the wife to receive 66.6 per cent of the matrimonial asset pool.


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Myra Moody
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property

Padbury & Wendon [2019] FamCAFC 41 (6 March 2019)

Mr Padbury appeals from orders for the settlement of property, dismissing his application for a stay plus costs.

The parties had begun living together in 2005 they then separated in 2016. Mr Padbury was a public servant; he began making contributions to his super fund in 1987. He became injured on duty, therefore he ended employment in 2014. He was successful in applying for the hurt on duty pension application.

The primary Judge observed the “value” of the fund was an independent issue to how the fund “might be treated,” or “contributions towards it assessed.” The approach to the valuation of the superannuation interest was in accordance with the Family Law (Superannuation) Regulations 2001 (Cth); this produced a calculation of $1,341,059. The parties’ net non-superannuation property was valued at $2,148,700, this means that of a total net property pool of some $3.5 million, a significant percentage included Mr Padbury’s hurt on duty pension.

The heart of the appeal claims that the primary judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.” Furthermore, Mr Padbury contributed to the fund for 18 years before living with Ms Wendon, however, the trial reasons also incorrectly state for a period of “some six to seven years.”

Ms Wendon the respondent conceded the error, the matters the primary judge said required consideration did not receive it.

 

FACTS SUMMARY:

APPEAL – PROPERTY 

  • Appeal against property settlement orders including orders splitting Mr Padbury’s hurt on duty pension.
  • Heart of appeal the judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.
  • Errors of fact.

ISSUE:

Did the primary judge fail to consider the special features of the pension or the parties’ contributions to it?

HELD:

Appealable error established and appeal conceded. Orders made by consent in lieu of those under appeal. 

There were factual errors of the primary judge concerning the period during which the Mr Padbury contributed to his super fund before the start of the relationship. It was established Mr Padbury contributed to the fund for 18 years prior to living with Mrs Wendon, however, the trial reasons incorrectly state for a period of “some six to seven years” however, Mr Padbury raised this only on appeal and failed to raise this issue at trial.

Furthermore, the court states the arguments in relation to the superannuation ‘were at best cursory and misguided.’ The conduct in which the trial was commenced added to the faults apparent in the trial reasons. The primary judge still of course has a responsibility to tackle pertinent considerations, however, in light of the above the assistance offered to the judge was not sufficient with that task.

It was established the primary judge failed to attend to important relevant considerations; the court was satisfied with the basis for appeal.

Both parties then agreed on orders to be made in lieu of those made by the court below. The parties then applied for costs certificates for the appeal in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).

 

FACTS SUMMARY:

APPEAL – COSTS  

  • No orders for costs made.
  • Both parties applied for costs certificates.

ISSUE:

Should costs certificates be awarded to both parties due to the primary judge failure to focus on important relevant considerations?

HELD:

The manner of the trial contributed to errors. Applications for costs certificates rejected.

It was determined the manner in which the trial was commenced added to the faults apparent in the trial reasons. This went against the issuance of costs certificates significantly; furthermore, the parties are far from being financially disadvantaged.

 Relevant Legislation

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law (Superannuation) Regulations 2001 (Cth)

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Myra Moody
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property

Skivington & Skivington [2019] FamCAFC 36 (11 March 2019)

The husband pursued parenting and property orders and the wife filed a response to that application.

The judge made an order directing the parties to attend mediation and the matter was adjourned for further directions. There were several adjournments that took place some of which the court motioned other times the parties requested for more time to mediate.

The orders by consent instructed the parties they must attend mediation before the next mention date and for there to be no further adjournments, if the husband and wife failed to prosecute their claim, the matter would be dismissed on the next occasion.

During the interim stages, the parties resolved the parenting issues and had agreed to a method of valuing the property. The judge was informed the parties expect on completion of mediation for the matter to be resolved.

The matter was adjourned again in chambers at the parties’ request because the expected mediation had not occurred. The matter returned before the judge where the parties again requested more time to complete the mediation process.

The Judge dismissed both the initiating application and response on the basis that the parties had failed to prosecute the matter.

The wife appealed those orders, and claims the orders were complied with and that both parties were attending the mediation process, however the mediation process was incomplete, due to the mediator’s other commitments. The husband also conceded the judges orders were erroneous.

FACTS SUMMARY:

  • The husband pursued parenting and property orders and the wife filed a response to that application.
  • Orders by consent instructed the parties that they must attend mediation before the next mention date and for there to be no further adjournments.
  • The judge was informed the parties expect on completion of mediation the matter to be resolved.
  • The parties again requested more time to complete the mediation process.
  • The mediation process was incomplete, due to the mediator’s other commitments
  • The Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter.
  • The wife is appealing; the husband concedes the orders were erroneous.

ISSUE:

Did the judge fail to comply with the requirements of Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth)?

HELD:

The appeal against the orders were allowed.The initiating application and response are remitted to the FCC for a rehearing with a different Judge. The court grants both parties a costs certificate.

In determining this matter Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth) provides:

13.12 Dormant proceedings (1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed. 

(2) The Court must not make an order under subrule (1) if: 

(a) there is a future listing for the proceeding or a part of the proceeding; or 

(b) an application in a case relating to the proceeding has not been determined; or 

(c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or 

(d) the Court has not given the parties to the proceeding notice under subrule (3). 

(3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order. 

(4) Notice under subrule (3) must be sent by post in an envelope marked with the Court's return address: 

(a) to each party's address for service; and 

(b) if a party has no address for service--to the party's last-known address. 

It was established the matter was not “dormant” for the parties had attended mediation in accordance with the order, although the mediation was incomplete, due to the mediator’s other commitments. Whilst the process may have been slow going it was still in motion, the parties had therefore “taken steps to advance the proceedings.”

Furthermore, the judge stated at [10] “no evidence was tendered or relied upon on the adjournment application to explain why orders had not been complied with” contrary to this, a transcript extract from the submissions made on the adjournment application at [1] was included in the judges reasons.

It was determined the judge had erred in failing to consider the actions of the parties that demonstrated they were in fact prosecuting the proceedings. The judge did not clarify why the partial settlement and the incomplete mediation process were inadequate to avoid the proceedings being rejected. 

 

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Myra Moody
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property

Danvers & Danvers [2018] FamCAFC 262 (21 December 2018)

FACTS

  • Final parenting orders made by consent in August 2016. 
  • The property settlement orders were made in June 2017, that included sale of the house both parties shared, with the division of property interests proceeds for 55%/45% in the husbands favour.
  • The husband appealed the property settlement orders and it was dismissed in December 2017.
  • The wife in May 2018 seeks orders for the removal of the husband from the property pursuant to the property orders made so she could sell the house. This submission included but is not limited to; the wife’s full control of the sale with engaging real-estate agents and listings, the husband to be abstained from entering the property or approaching the real-estate agents, for the net proceeds of the house sale to be held in the wife’s lawyers trust account until further order. The court granted this.
  • The husband then files an application in a case in June 2018 seeking a stay of the orders awaiting the outcome of his appeal for the May 2018 orders.
  • The judged dismissed the appeal for there was no appeal orders filed in relation to the May 2018 orders and the appeal period had expired.
  • The husband then files again an amended application in a case in July 2018. The husband sought an extensive list that included but is not limited to; the wife be declared a vexatious litigant, the wife be referred to the AFP for perjury, removal of the children from the airport watch list, separating siblings- to have one child reside with him and alternate the other child’s visitations, that he would have sole responsibility of the sale of the house.
  • This appeal was dismissed again on July 2018.
  • Then finally the husband sought parenting orders that already had been determined and filed an Application in a Case in relation to property orders he was seeking to re-litigate again December 2018.

ISSUE

  1. Was there apprehended bias against the husband?
  2. Was there procedural unfairness towards the husband?
  3. Did the trial Judge make a mistake with the fathers parenting matter that he tried to re-litigate?
  4. Did the judge make a mistake in relation to ordering costs to the husband to pay the wife when the wife’s solicitor failed to file a notice of address for service in relation to the family matters?

HELD

The appeal dismissed – no order as to costs.

The judge disproved the apprehended bias claim, ‘the issue of bias was not raised with his Honour at any stage during the hearing, and the husband cannot now raise it on appeal’ (Vakauta v Kelly). Moreover, It was established the wife’s lawyer not serving the Notice of Address of Service was a ‘hollow complaint’ given the situation. The father conceded in his argument that he couldn’t afford legal representation anyway, which cancelled out his argument of needing to know if the wife had legal representation so he may get legal representation too, the husband was always afforded the opportunity to have legal representation regardless. As a result, the husband did not demonstrate why the wife should be reprimanded for her lawyer’s actions that appeared for her.

Furthermore, It was established the judge did not afford the husband to make lengthy submissions, however it was evidently proven that the husband attempts to re-litigate the settled property orders was an abuse of process.

Moreover, there was no evidence for the claims the wife needs to be referred to the APF for her allegations of domestic violence and therefore also refused to proclaim her a vexatious litigant; the wife was the respondent not the applicant in the proceedings.

 Moving forward, the husband attempted to vary the parenting orders through the amended Application in Case July 2018 in relation to the property issues, instead he should of filed an Initiating Application to commence a new parenting case and attempted mediation first, which is a pre-requisite. The judge dismissed the application due to abuse of process of parenting matters. It was concluded there was no appealable error in the judge not assisting the husband with the understanding of the process of how to initiate parenting orders.

The husband appears to be confused and believes the wife’s lawyer are seeking costs themselves and is disputing this, however it is the wife who assumes costs and is seeking the costs from the husband.The wife had to occur an expense defending a pointless application in relation for the stay of orders may 2018, as no appeal was actually made by the husband, it could never of succeeded, there was no basis to complain of procedural unfairness.

There were various points made throughout this case where the husband fails to understand the process of timing the submissions and when to raise issues in court and in what application.

 

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Myra Moody
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property
 

Matech & Matech [2019] FamCA 36 (31 January 2019)

FACTS:

  • 3 January 2019, the husband filed an appeal against the orders made on 7 December 2018(Matech & Matech(No. 2)  [2018] FamCA 1029)  and requests the orders be dismissed and the parties to “attend at mediation to finalise the proceedings”.
  • The husband is appealing for he believes the Judge failed to take into account the [G Street] property provides equity to allow him to operate his business. Furthermore, the husband states the Judge failed to consider any taxation consequences as a result of the sale of the property.
  • Having filed the appeal on 7 January 2019, the husband sought a stay of the orders, pending the hearing of the appeal.
  • The wife opposes the stay being granted.

ISSUE:

Is there merit to grant the stay order, pending the hearing of an appeal?

HELD:

The court determined the application is to be dismissed. The Husband is also ordered to pay the wife’s cost of the application of stay, this is to be reserved until the trial of the enforcement proceedings, then they can work out the assessments of costs and when payment needs to be paid.

The principles applied to the process of an order, pending the hearing of an appeal, are settled in Aldridge & Keaton (Stay appeal)  [2009] FamCAFC 106 . In this case it emphasises the discretionary nature of the application, which should be decided on its evidence.

The court accepts the husband’s application for stay is genuine, that converting his interest in the G Street property to cash rather than an interest in property, will mean he is unable to use the “equity” for future borrowings to maintain his business as a property developer.

However, the onus is on the husband to establish an appropriate basis for the stay. The husband fails in his affidavit to do this – only making legal allegations.

It was determined by applying the principles and weighing the risk and strength of the proposed appeal, that the husband’s case of appealing the orders for the sale of G property are not strong.

 

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Myra Moody
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property

Property and finances after separation

Can I apply to the Family Court or Federal Circuit Court to have my de facto property and money dispute determined?

The Family Court and the Federal Circuit Court can make orders in relation to financial matters following the breakdown of eligible de facto relationships. Previously these courts would generally only make such orders in cases where the parties were married (except in the ACT and NT). Financial disputes between former de facto partners were generally dealt with by state and territory courts, applying the law applicable in that state or territory.

For more information, see the de facto relationships

Should superannuation be included in these orders?

The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, although this is not mandatory. For more information, see the superannuation section and the Family Law and Superannuation fact sheet.

How does a court decide how to divide assets and debts?

There is no formula used to divide your property. No one can tell you exactly what orders a judicial officer will make. The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case.

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage (see Sections 79(4)and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)). The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:

  • working out what you've got and what you owe, that is your assets and debts and what they are worth
  • looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings
  • looking at indirect financial contributions by each party such as gifts and inheritances from families
  • looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
  • future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.

The way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.

Is there a time limit for applications for property adjustment?

If you were married, applications for property adjustment must be made within 12 months of your divorce becoming final.

If you were in a de facto relationship, your applications for property adjustment must be made within 2 years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission of a court. This is not always granted.

FamilyCourt.gov.au

 
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Danny Jovica
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property

Iannello & Iannello (No.2) [2018] FCCA 3662 (12 December 2018).

This case involved an uncooperative husband, some might describe him as a narcissist with his controlling behavior. Here the Court was asked to consider interim orders regarding whether the mother should have sole parental responsibility with regards to one child attending counselling,  there were existing orders in place for the child to attend counselling and there is evidence that the father has inhibited this process.

Secondly the court was asked to consider whether the parties should be restrained from communicating with the children when they are living with the other parent as there was evidence that excessive communication is occurring.

Finally regarding interim orders, there were orders in place for the sale of the former matrimonial home and there was evidence that the husband was being obstructive, delayed and has been uncooperative with regards to the sale, the Court considered s.106A orders. 

HELD.

Parenting
The Wife have sole parental responsibility for the child in relation to attendance upon a counsellor in accordance with the interim consent orders made by Judge C E Kirton QC on 26 October 2018.

Communication
Pursuant to s.68B(1) of the Family Law Act 1975 (Cth), the Husband and the Wife be and are hereby restrained by injunction from initiating communication to, or accepting communication from, the Children while the Children are not living with them and the Independent Children’s Lawyer forthwith meet with the Children to explain this order to them.

Property

Pursuant to s.106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit Court of Australia at Melbourne be forthwith appointed to:

(a) Execute all deeds or instruments in the name of the Husband necessary to give effect to the sale of the former matrimonial home situate and known as Property A in the State of Victoria being more particularly described in Certificate of Title, pursuant to the interim consent orders made by Judge C E Kirton QC on 26 October 2018; and

(b) Do all acts and things necessary to give validity and operation to any such deed or instrument.

Other

Within 24 hours of the making of this order the Husband do all acts and things and sign all documents necessary to transfer the Wife’s mobile phone number to her control, at her expense if any.


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Danny Jovica
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property

Barr & Barr [2018] FCCA 3069 (30 October 2018)


This is an interim proceeding in Family law concerning .  Where the wife sought interim payments to cover legal expenses and finance her start-up business as well as and additionally an preventing the husband selling off assets of his business.

Issues

Whether the wife ought to receive a part property settlement of $94,560 to pay for legal fees and for further development of her business

Whether the husband ought to be restrained from dealing with the marital assets other than in the normal course of business.

Whether the husband should pay the wife $750 or $1157 per week in interim spousal maintenance.

Held : 

(1) Within 7 days of the date of these orders the husband in his capacity as Director of Business 1 Pty Ltd as trustee for the Barr Family Trust shall pay, or cause to be paid to the wife, by way of partial property settlement:|

(a) the sum of $35,000 to the bank account of the wife’s company Business 2 Pty Ltd, Bank 1 account; and
(b) the sum of $16,930 to the wife’s bank account.

UNTIL FURTHER ORDER

(2) The husband shall pay to the wife by way of interim spousal maintenance:

(a) the sum of $750 per week with such sum to be paid to the wife’s bank account held at Bank 1 BSB;
(b) i. rent of $970.00 in relation to the property at Property A (“the rented property”)

all utilities relating to the rented property
the wife’s mobile telephone account
the repayments for the wife’s motor vehicle; and
day care and school fees for the parties’ children

as and when they fall due.

(3) The husband otherwise be and is hereby restrained from dealing with the assets of Business 1 Pty Ltd or any other assets which might properly be the subject of these proceedings other than in the normal course of business.

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Danny Jovica
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property

Case : Edmunds & Edmunds [2018] FamCAFC 121 (6 July 2018)

This was a Family Law matter about an lodged by the wife six years after expired relating to .

FACTS

The parties commenced cohabitation in 1992 and married in 1993. They separated in late 2006 or early 2007. They were divorced on 16 January 2009.

The parties had three children who were born in 1994, 1997 and 2000. The youngest child was almost 17 years old at the time of the orders of the primary judge.

Issues :

1) Whether the primary judge made a final determination instead of assessing whether the wife had a prima facie case;

Ground 1 asserts:

Her Honour did not assess whether the Appellant had a prima facie case to make at trial when put at its highest, and thus failed to exercise the discretion at section 44(3) of the Family Law Act 1975: instead Her Honour:

     Decided or prejudged the case under section 79(4) instead of assessing whether the Appellant had a prima facie case worth pursuing;

2) Whether the primary judge failed to assess the wife’s case at its highest;

3) Whether the primary judge erred in finding that the wife had a weak prima facie case;

4) Where the primary judge erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property;

5) Whether the primary judge made a material error in respect of a finding about the husband’s post-separation contributions to superannuation;

6) Whether the primary judge took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife’s prima facie case;

7) Whether the primary judge erred in failing to find that the wife’s reliance on an agreement in relation to the parties’ property was a reasonable explanation for her delay in instituting property proceedings;

8) Whether the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted

HELD : Appeal allowed.

RULE APPLIED :

Where leave is required to appeal an order made pursuant to s 44(3) of the Family Law Act 1975 (Cth)

Where the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and where substantial injustice would result if leave were refused.

HELD : The appellant is granted leave pursuant to s 44(3) to commence proceedings under s 79 of the Family Law Act 1975 (Cth).

COSTS :

The Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.



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Myra Moody
_bx_timeline_txt_added_sample _bx_timeline_txt_to , property

Pet custody common in Family Court

In the  Family Law Act 1975 (Cth) there is no reference to animals, however case law suggests pets should be treated as personal property.

In terms of value, most pets are domestic pets and have no monetary value. If the animal is a pedigree then they may be determined to have a monetary value. If that is the case, the pet and its value is to be included in the asset pool.

Under section 79 of the Act , the Family Court has the power to make orders with respect to the property of the parties to a marriage. Therefore, given pets are regarded as property, this allows the Family Court to make orders about who will have ownership and possession of a pet.

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