FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Agosta & Haldane [2024] FedCFamC2F 935
File number(s): DGC 4160 of 2021 Judgment of: JUDGE JENKINS Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – de-facto property – asset pool in dispute – admissibility of medical records – admissibility of redbook valuation – admissibility of parties’ own estimate of value in financial statement – initial contributions – springboard – inheritance – post-separation care of children – impact on earning capacity of care of children Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Adamson & Adamson [2014] FamCAFC 232
AJO & GRO [2005] FamCA 195
Aleksovski & Aleksovski [1996] FamCA 111
Bain & Bain (deceased) [2017] FamCAFC 80
Bevan & Bevan [2013] FamCAFC 116
Carlson & Fluvium [2012] FamCA 32
Clauson & Clauson (1995) FLR 92
Dickons & Dickons [2012] FamCAFC 154
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Frederick & Frederick [2019] FamCAFC 87
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Lancaster v The Queen[2014] VSCA 333
Lee Steere & Lee Steere [1985] FamCA 57
Linch & Linch [2014] FamCAFC 69
Division: Division 2 Family Law Number of paragraphs: 110 Date of last submission/s: 24 April 2024 Date of hearing: 22 – 24 April 2024 Place: Dandenong Counsel for the Applicant: Mr Whitchurch Solicitor for the Applicant: Ian Robertson Lawyers Counsel for the Respondent: Mr Hall Solicitor for the Respondent: Betts Law Company ORDERS
DGC 4160 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS AGOSTA
Applicant
AND: MR HALDANE
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.Within 60 days of the date of these orders (“the due date”) the Applicant do all such acts and things and sign all such documents as may be required to:
(a)Transfer to the Respondent all of her right, title and interest in the real property situate at and known as B Street, Town C, New South Wales, described as Lot … in Neighbourhood Plan … and more particularly described in Folio … (“the Town C Land”);
(b)Authorise the discharge of the mortgage secured upon the title of the Town C Land (“the Town C mortgage”); and
(c)Cause to be paid to the Respondent care of his solicitors from the fund presently held by S Law Firm the total of the funds held in trust (“the payment”) less $1,100 which is to be released to Ms S in full satisfaction of the cost order in Order 12 herein.
2.The injunction contained in paragraph 12 of the consent property orders made on 17 November 2021 be extended in respect of the Applicant until the Applicant has performed Order 1(c) hereof or any application for costs…
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- Agosta & Haldane [2024] FedCFamC2F 935
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- [2024] FedCFamC2F 935
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CaseChat Overview and Summary
The court was required to decide on the admissibility of several pieces of evidence, including medical records, the valuation report from a redbook, and the parties' own estimates of property values. Additionally, the court had to determine the contributions made by each party to the asset pool, the valuation of these contributions, and how to account for inheritances and the care of children post-separation. The court also needed to assess the impact of the care of children on the earning capacity of the parties.
Judge Jenkins, after considering the evidence and submissions from both parties, ruled on the division of property, the admissibility of certain evidence, and the financial implications of post-separation care. The court found that the parties' own estimates of property values were admissible and could be considered alongside other evidence. The court also determined that inheritances and post-separation care of children should be factored into the division of the property. The court ordered the transfer of specific properties and assets between the parties, the payment of certain funds, and the discharge of mortgages and caveats. The court further determined that the property settlement orders would finally determine the financial relationship between the parties and avoid further proceedings.
The final orders included the transfer of specific properties, the payment of funds, the discharge of mortgages, and the division of other assets. The court also ordered that the costs of the proceedings be borne by the respective parties as determined. The intention was to ensure that the financial settlement between the parties would be final and avoid any further legal proceedings.
Orders
Orders of the court
DGC 4160 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS AGOSTA
Applicant
AND:
MR HALDANE
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1. Within 60 days of the date of these orders (“the due date”) the Applicant do all such acts and things and sign all such documents as may be required to:
(a) Transfer to the Respondent all of her right, title and interest in the real property situate at and known as B Street, Town C, New South Wales, described as Lot … in Neighbourhood Plan … and more particularly described in Folio … (“the Town C Land”);
(b) Authorise the discharge of the mortgage secured upon the title of the Town C Land (“the Town C mortgage”); and
(c) Cause to be paid to the Respondent care of his solicitors from the fund presently held by S Law Firm the total of the funds held in trust (“the payment”) less $1,100 which is to be released to Ms S in full satisfaction of the cost order in Order 12 herein.
2. The injunction contained in paragraph 12 of the consent property orders made on 17 November 2021 be extended in respect of the Applicant until the Applicant has performed Order 1(c) hereof or any application for costs sought by either party has been determined, whichever is the later.
3. The Respondent meet the costs of the transfer of the Town C Land except for the Applicant’s individual cost of PEXA workspace entry which shall be paid by the Applicant.
4. Contemporaneous with the Applicant’s completion of Order 1 the Respondent:
(a) Procure the discharge of the Town C mortgage and indemnify the Applicant against all payments and liability pursuant to mortgage and all other outgoings of the Town C Land of whatsoever nature and kind; and
(b) Withdraw at his expense the caveat lodged over the real property at D Street, Town E in the State of Victoria.
5. In default of the Respondent obtaining a discharge of the Town C mortgage as ordered in Order 4(a) the Town C property be forthwith sold altogether out of court (“the default sale”) and upon completion of the sale the proceeds be applied:
(a) First to pay the costs of the sale;
(b) Secondly to discharge the Town C mortgage; and
(c) Thirdly the balance then remaining be paid to the Respondent care of his solicitor.
6. There be liberty to apply with respect to the default sale.
7. Pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splitable payment becomes payable in respect of the interest held by the Respondent (member number …) in Super Fund 1 (“the Fund”) , the Applicant shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, at the date of these orders, in the sum of $34,497.00 and that there be a corresponding reduction to the entitlement the Respondent would have had in the Fund but for this order.
8. The Respondent be solely liable for and indemnify the Applicant against all payments and liability pursuant to the holiday site rental contract executed by the parties at F Street, Town G, and he be solely entitled to rights of occupation pursuant to that lease.
9. The Applicant retain all right, title and interest in:
(a) Her one-third interest in the real property situate at and known as D Street, Town E;
(b) Any claim for reimbursement of funds taken by her brother Mr H prior to the passing of Mr J;
(c) Motor Vehicle 1 that is registered in the Applicant’s name; and
(d) Furniture, chattels and personal effects in her possession.
10. The Respondent retain all right, title and interest in:
(a) The funds held on trust by his solicitors in the sum of $167,400;
(b) Motor Vehicle 2 that is registered in his name;
(c) The outbuildings at F Street;
(d) His interest in motor vehicles;
(e) Furniture, chattels and personal effects in his possession.
11. Unless otherwise specified in these orders and save for the purposes of enforcing the payment of any monies due pursuant to these or any previous orders of the Court:
(a) Each party be solely entitled to the exclusion of the other party to all chattels (including choses in action) in the possession or control of the first-named party of whatsoever nature and kind;
(b) Each party be solely entitled to monies held on trust by that party’s family law solicitor;
(c) Monies standing to the credit of the parties in any joint bank account be divided equally and the relevant bank account be closed within 90 days;
(d) Each party be solely liable for and indemnify the other against all payments and liability in relation to any credit finance relating to any chattel retained by that party pursuant to these Orders;
(e) Each party be solely entitled to superannuation entitlements belonging to or earned by that party;
(f) Insurance policies become the sole property of the owner named thereon; and
(g) Any joint tenancy in any real or personal property is hereby expressly severed.
12. The Respondent pay to Ms S her costs of attendance at the hearing on 23 April 2024 fixed in the sum of $1,100.
13. All extant applications be otherwise dismissed save as to costs.
THE COURT NOTES:
A. That pursuant to s 90ST of the Family Law Act 1975 (Cth) it is intended that these orders shall finally determine the financial relationship between the parties and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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