FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLSOP & ALLSOP | [2019] FCCA 309 |
| Catchwords: FAMILY LAW – Property – final property adjustment – Kennon argument – section 75(2) adjustments – consideration of financial and non-financial contributions – consideration of the inclusion of add-backs. |
| Legislation: Family Law Act 1975, ss.4AB, 75(2), 79(4) |
| Cases cited: Stanford v Stanford [2012] HCA 52 Sahrawi & Hadrami [2018] FamCAFC 170 Marando v Marando (1997) FLC 92 – 754 Kowaliw & Kowaliw (1981) FLC 91-092 |
| Applicant: | MS ALLSOP |
| Respondent: | MR ALLSOP |
| File Number: | PAC 1130 of 2018 |
| Judgment of: | Judge Harman |
| Hearing dates: | 9, 10 and 11 January 2019 |
| Date of Last Submission: | 11 January 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 11 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart of Counsel |
| Solicitors for the Applicant: | Coleman Greig Lawyers |
| Counsel for the Respondent: | Mr Rosic of Counsel |
| Solicitors for the Respondent: | Turner Freeman Lawyers |
ORDERS
That, an Order by way of alteration of property interests pursuant to s.79 of the Family Law Act 1975 (Cth) be made in terms of paragraphs 2 to 6 of this document in order to address the consequences of the breakdown of the marital relationship and the injustice that would occur given the circumstances of the relationship if legal and equitable title were not altered.
That within twenty-eight (28) days of the date of these Orders the Husband shall do all things necessary to vacate and provide vacant possession of the property situated at and known as Property A, in the State of New South Wales (being the whole of the land contained in Folio Identifier … (“the Property A property”) and that the Wife shall have exclusive occupation of the Property A property and the Husband or his agents shall not enter upon the Property A property.
That within seven (7) days from the date of the making of these Orders, the Applicant Wife shall do all act and sign all documents necessary to market for sale and sell the property situated at and known as Property B, in the State of New South Wales (being the whole of the land contained in Folio Identifier … (“the Property B property”) for the best price reasonably obtainable and that the proceeds of sale be disbursed as follows and in that priority:
(a)to discharge any loan secured by way of mortgage over the title to the Property B property;
(b)to pay the costs of sale including agent's commission and auction…
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- Allsop and Allsop [2019] FCCA 309
- Case
- [2019] FCCA 309
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining how the parties' various properties, including Property A, Property B, and Property C, should be divided. This involved deciding the exclusive occupation of Property A, the sale of Property B and the disbursement of its proceeds, the transfer of Property A to the Wife, and the Wife's retention of Property C. Furthermore, the court needed to address the division of personal property, bank accounts, and superannuation entitlements, and to make orders that would finally determine all financial relations between the parties.
The court made orders by consent, reflecting a Terms of Settlement executed by the parties. These orders provided for the Husband to vacate Property A, granting the Wife exclusive occupation. The Wife was ordered to market and sell Property B, with proceeds to be applied first to discharge any mortgage, then to costs of sale, and finally to distribute a specified sum to the Husband, with the balance to the Wife. Simultaneously, Property A was to be transferred to the Wife's sole name, at her cost. The Wife was to retain Property C and indemnify the Husband in relation to all liabilities associated with it. Each party was to retain their respective personal property, bank accounts, and superannuation funds. The court also appointed the Registrar as an executing officer in the event of non-compliance and noted the parties' intention for these orders to finally determine all financial matters. Specific orders were made regarding the division of chattels between the parties, with a further note that possessions belonging to the children or grandchildren would remain their property.
Orders
Orders of the court
1.
That, an Order by way of alteration of property interests pursuant to s.79 of the Family Law Act 1975 (Cth) be made in terms of paragraphs 2 to 6 of this document in order to address the consequences of the breakdown of the marital relationship and the injustice that would occur given the circumstances of the relationship if legal and equitable title were not altered.
2.
That within twenty-eight (28) days of the date of these Orders the Husband shall do all things necessary to vacate and provide vacant possession of the property situated at and known as Property A, in the State of New South Wales (being the whole of the land contained in Folio Identifier … (“the Property A property”) and that the Wife shall have exclusive occupation of the Property A property and the Husband or his agents shall not enter upon the Property A property.
3.
That within seven (7) days from the date of the making of these Orders, the Applicant Wife shall do all act and sign all documents necessary to market for sale and sell the property situated at and known as Property B, in the State of New South Wales (being the whole of the land contained in Folio Identifier … (“the Property B property”) for the best price reasonably obtainable and that the proceeds of sale be disbursed as follows and in that priority:
(a) to discharge any loan secured by way of mortgage over the title to the Property B property;
(b) to pay the costs of sale including agent's commission and auction expenses;
(c) the costs and disbursements of the lawyer acting on the sale of the Property B property;
(d) usual adjustments as between vendor and purchaser.
4.
That, simultaneous with the settlement of the sale of the Property B property pursuant to Order 3 above, each party shall do all acts, sign all documents and provide the appropriate consent for all things necessary to cause the following to occur simultaneously:
(a) Transfer the Property A property to the sole name of the Wife at the Wife’s cost, such that the Husband shall sign all documents presented to him by the Wife and the Wife shall do all other things necessary for such transfer;
(b) To distribute the net funds remaining from the sale of the Property B property per order 3 to Mr Allsop or as he may direct in writing the sum of $260,000.00 as to the balance to the wife.
5.
That, pending transfer of the Property A property provided for in Order 4 the Wife shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the Property A property incurred prior to the date of transfer and shall make all such payments as and when they fall due and hereby indemnifies the other party in respect of all other liabilities incurred prior to the date of transfer.
6.
That, as between the parties, the Wife shall retain, to the exclusion of the Husband, her right, title and interest in the property situated and at and known as Property C in the state of New South Wales (being the whole of the land contained in Folio Identifier…) (‘the Property C property’) and the Wife hereby indemnifies and shall keep indemnified the Husband in relation to all mortgage payments, statutory rates and charges, other expenses and liabilities in relation to the Property C property whenever and however arising.
7.
That, as between the Husband and Wife, and subject to the above Orders the Husband and Wife shall each respectively retain all interest in and entitlement to:
(a) All personal property now in his/her respective possession or control;
(b) All funds held in bank accounts held in his/her name respectively; and
(c) All superannuation funds standing in his/her sole name respectively.
8.
That, in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party, and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
9.
The Court notes that, pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend these Orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
10.
That each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
11.
Liberty is granted to Mr Allsop to apply on 14 days’ notice in the event that he should wish to agitate any Application regarding sale of the Property B property and prefaced upon allegation that the wife is not complying fully or expeditiously with her obligations to appropriately list to market and sell the property.
12.
THE COURT NOTES the undertaking of Ms Allsop that she will keep Mr Allsop and/or his legal representatives informed at all times of offers to purchase made with respect to the Property B property.
13.
THE COURT NOTES that an Application for costs is pressed by the Applicant.
14.
Adjourn that Application to 18 April 2019 at 11.30am.
15.
Applicant wife to file and serve a minute of orders sought and an outline (no more than 6 pages) of submissions by 15 February 2019.
16.
Reply thereto (with similar limitation in length) by 22 March 2019.
17.
By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.
18.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
19.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
EXHIBIT A
BY CONSENT IT IS ORDERED:
1.
That the Wife retain the following chattels to the exclusion of the Husband:-
(a) The Wife's bed frame and mattress;
(b) Fridge and freezer located in kitchen;
(c) Television located in the loungeroom plus HD recorder/DVD player;
(d) All kitchenware;
(e) All potted plants and bonsai plants;
(f) All photos of the Wife and children;
(g) All Wife's jewellery;
(h) One self-propelled lawn mower;
(i) Sewing machine and overlocker;
(j) Linen and towels from the Wife's bedroom;
(k) Coffee table built by Mr F;
(l) Dresser with mirror built by Mr F;
2.
That the Husband retain the following chattels to the exclusion of the Wife:-
(a) Fridge and freezer located in the garage;
(b) Lounge set;
(c) Dining room table and chairs;
(d) Washing machine and dryer;
(e) Husband's tools;
(f) Wine making equipment;
(g) Wine stored in the cellar;
(h) All contents of his bedroom (other than any chattels provided for in Order 1);
(i) Wall unit and bed from Mr E and Mr F’s bedroom;
(j) Edger;
(k) Box trailer;
(l) Dog;
(m) Husband's jewellery;
(n) 2 lawn mowers;
(o) Linen from his bedroom;
(p) Wedding photos.
AND THE COURT NOTES
A. That the parties agree that all personal possessions (other than the wall unit and bed located in the bedroom of Mr E and Mr F) belong to the children or any of them or of the parties grandchildren will remain the property of, and be provided to, the child or grandchild to whom they belong.
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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