Alston & Alston

Case [2021] FCCA 800

FEDERAL CIRCUIT COURT OF AUSTRALIA

Alston & Alston [2021] FCCA 800

File number(s): SYC 1504 of 2018
Judgment of: JUDGE MORLEY
Date of judgment: 25 May 2021
Catchwords:  FAMILY LAW – Property – assessment of contributions – where equal contributions made over a long period of time – one-pool approach – where assertions of wastage are made – where wife seeks the immediate sale of former matrimonial home – where husband seeks to continue residing in the home until he becomes incapacitated by virtue of accident, illness, aging, dies or agrees to the sale of the home – no order as to costs
Legislation:

Evidence Act 1995 (Cth) ss 50, 131.

Family Law Act 1975 (Cth) ss 79, 75, 43, 81, 117.

Family Law Rules 2004 (Cth) rr 19.04.

Federal Circuit Court Rules 2001 (Cth) rr 21.02.
Cases cited:

Robb & Robb (1995) FLC 92-555;

Precision Plastics Pty Limited v Demir (1975) 132 CLR 362;

In the Marriage of Harris (1991) 104 FLR 458;

Pierce & Pierce (1999) FLC 92-844;

Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395;

AJO & GRO (2005) 191 FLR 317;

Lovine & Connor (2012) FLC 93-515;

Dickons & Dickons [2012] FamCAFC 154;

Stanford & Stanford (2012) 247 CLR 108;

Petruski & Balewa (2013) 49 Fam LR 116;

Ashby & Slipper (2014) 219 FCR 322;

Fields & Smith (2015) FLC 93-638;

Talbot & Talbot (2015) FLC 93-660;

Vass & Vass (2015) 53 Fam LR 373;

Masoud & Masoud (2016) FLC 93-689;

Grier & Malphas (2016) 55 Fam LR 107;

Shan & Prasad [2018] FamCAFC 12;

Fontana & Fontana [2018] FamCAFC 63;

Trevi & Trevi (2018) FLC 93-858;

Jabour & Jabour [2019] FamCAFC 78.
Number of paragraphs: 137
Date of last submission/s: 24 February 2020
Date of hearing: 8-9 October 2019
Place: Sydney
Solicitor for the Applicant: Watkins Tapsell Solicitors
Solicitor for the Respondent: The Respondent Appeared in Person

ORDERS

SYC 1504 of 2018
BETWEEN:

MS ALSTON

Applicant
AND:

MR ALSTON

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

28 MAY 2021

THE COURT ORDERS THAT:

1.That pursuant to section 79 of the Family Law Act 1975 (Cth):

(a)That the parties shall forthwith sign all documents and instruments and do all things necessary to list for sale the property at B Street, Suburb C in the State of New South Wales being the whole of the land in certificate of Title folio identifier ... ("the property") at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:-

(i)In adjustment of rates on settlement;

(ii)In payment of agent’s commission (if any) on sale;

(iii)In payment of legal and all other proper costs of sale;

(iv)In division of the balance of the proceeds of sale between the…

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Alston & Alston [2021] FCCA 800
Case
[2021] FCCA 800
Decision Date

CaseChat Overview and Summary

The parties to this matter were Ms Alston (the applicant wife) and Mr Alston (the respondent husband). The dispute concerned the division of matrimonial assets, specifically the sale of the parties' property at B Street, Suburb C, New South Wales, and the distribution of personal property. The orders were made by Morley J in the Federal Circuit and Family Court of Australia on 28 May 2021.

The court was required to determine how the matrimonial asset pool should be divided, including the sale of the former matrimonial home and the allocation of various items of personal property. The orders also addressed the process for agreeing on sale terms, including listing price, agent selection, and sale price, and provided mechanisms for resolving disagreements on these matters. Furthermore, the court needed to determine the ownership of specific items of personal property as between the parties.

Morley J applied section 79 of the *Family Law Act 1975* (Cth) to make orders for the division of property. The court ordered the sale of the property at B Street, with proceeds to be applied first to sale costs and then divided equally between the parties, ensuring each party had received an equal share of the matrimonial asset pool based on specified prior entitlements. The orders detailed a process for private sale and, if unsuccessful within three months, a public auction, with further provisions for subsequent sales by private treaty or auction until the property was sold. To facilitate agreement on sale terms, the court appointed the President of the Real Estate Institute of New South Wales or their nominee to resolve disputes regarding agents and listing/sale prices, and the President of the Australian Property Institute or their nominee to resolve disputes regarding listing and sale prices. The court also made specific orders regarding the ownership of numerous items of personal property, designating certain items as belonging solely to the wife and all other personal property and financial assets not specifically dealt with as belonging to the party in possession.

The court further ordered that if either party refused to comply with the orders regarding the execution of documents, the Registrars of the Court were authorised to execute such documents in the name of the non-compliant party. The orders also stipulated that the wife would be responsible for arranging and bearing the expense of collecting her designated personal property from the husband within 21 days of the order.

Orders

Orders of the court

SYC 1504 of 2018

BETWEEN:

MS ALSTON

Applicant

AND:

MR ALSTON

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

28 MAY 2021

THE COURT ORDERS THAT:

1. That pursuant to section 79 of the Family Law Act 1975 (Cth):

(a) That the parties shall forthwith sign all documents and instruments and do all things necessary to list for sale the property at B Street, Suburb C in the State of New South Wales being the whole of the land in certificate of Title folio identifier ... ("the property") at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:-

(i) In adjustment of rates on settlement;

(ii) In payment of agent’s commission (if any) on sale;

(iii) In payment of legal and all other proper costs of sale;

(iv) In division of the balance of the proceeds of sale between the parties in such manner that each has received an equal share of the matrimonial asset pool on the basis that prior to such division of the balance of the proceeds of sale the husband has $103,497 and the wife has $89,937.

(b) That in the event that the property does not sell by private sale within three months from the date of this order then the parties shall sign all documents and instruments and do all things necessary to list the property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the parties shall be equally responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale be applied as provided in order 1(a) hereof.

(c) That in the event that order 1(b) operates and the property does not sell by public auction in accordance with order 1(b) then the property shall be resubmitted for sale by private treaty in accordance with the provisions of order 1(a) and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in order 1(a).

(d) That in the event that the parties are unable to reach agreement in relation to an auction agent or a real estate agent then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of New South Wales or his or her nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee in making such determination.

(e) That in the event that the parties are unable to reach agreement in relation to a listing price, a reserve price or a sale price whether for a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Australian Property Institute or his or her nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee in making such determination.

(f) That the wife is the sole owner in law and in equity as between herself and the husband of the following items of personal property that were contained in the property at the time of separation:-

(i) Double bed (wife’s mum and dad’s);

(ii) Bedroom drawers (wife’s mum and dad’s) and bedside table;

(iii) Piano (wife’s mum and dad’s);

(iv) 2 seater green lounge and floor lamp (wife’s mum and dad’s);

(v) Rug from the front lounge room;

(vi) Television from the front lounge room;

(vii) Toy box and contents from the front lounge room (wife’s mum and dad's)

(viii) Cane lounge suite (2 seater and 2 single seats);

(ix) Buffet unit;

(x) White cupboard - kids room (Ms D & Mr E's);

(xi) White cupboard - down under room (Ms D and Mr E's);

(xii) Washing machine - Bosch;

(xiii) Dryer;

(xiv) Exercise bike and rowing machine;

(xv) 1/2 size dishwasher from Aldi;

(xvi) Automatic frying pan;

(xvii) Steel Renaware pots;

(xviii) Vacuum cleaner – Miele;

(xix) Set of Readers Digest Hard-Back Books;

(xx) 1/2 of all crockery, cutlery and glassware;

(xxi) Serving dishes, bowls and vases;

(xxii) All tablecloths and serviettes;

(xxiii) Original and/or copy of photos from computer and framed photos on the piano;

(xxiv) Original and/or copy of professional photos of Ms D and Mr F circa 1983;

(xxv) Original and/or copy of family videos and recordings of Dad's singing from VCR tapes or computer;

(xxvi) 1/2 of the towels and linen;

(xxvii) Framed photos of her mum and dad;

(xxviii) 1/2 of the children's storybooks;

(xxix) Foldable picnic table and stools;

(xxx) Small round glass outdoor table and all grey chairs;

(xxxi) Wooden framed wall clock from the dining room;

(xxxii) One of the retractable outdoor hoses;

(xxxiii) Downstairs refrigerator (wife’s mum and dad's); and

(xxxiv) One of the three white storage cupboards from downstairs.

(g) That in the event that any of the items of personal property referred to in order 1(f) are in the possession of the husband at the date of this order the wife shall arrange for collection of those items from the husband at the property at the wife’s expense, such collection to occur on a day and at a time agreed between the parties and within 21 days of the date of this order.

(h) That the husband is the sole owner in law and in equity as between himself and the wife of all personal property and financial assets currently in his power, possession or control other than as specifically dealt with elsewhere in this order.

(i) That the wife is the sole owner in law and in equity as between herself and the husband of all personal property and financial assets currently in her power, possession or control other than as specifically dealt with elsewhere in this order.

2. That in the event that either party refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document the court appoints and authorises the Registrars of the Court to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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

When the matter was mentioned on 24 February 2020, the Court indicated that the wife’s objections to documents in the husband’s Tender Bundle would be dealt with in the reasons, the husband tendered the further bank account transaction summary document, to which no objection was made by the wife, and judgment was reserved.THE EVIDENCE At the start of the hearing, objections were made by the husband to specific parts of the wife’s trial affidavit, and those objections were dealt with. No objection was taken by the wife to any part of the husband’s trial affidavit. The husband was not cross-examined and “…as a general proposition, evidence which is not inherently incredible and which is unchallenged ought to be accepted”: Precision Plastics Pty Limited v Demir (1975) 132 CLR 362, Gibbs J (with whom Stephen J agreed). The evidence may, of course, be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection”: Ashby & Slipper (2014) 219 FCR 322 at [77]. At the time of hearing, the husband was 76 years of age and the wife was 65 years of age. They commenced cohabitation in 1980 and married in 1981. In her evidence, the wife asserts that the parties separated on 3 January 2017, and in his evidence, the husband asserts that they separated on 7 March 2017 when the wife left the former matrimonial home. However, a balance sheet was provided to the Court by the parties at the hearing, having been filed with the Court on 14 October 2019 by the wife’s solicitors, and both items 14 and 15 therein refer to “agreed separation on 15 October 2016”. For reasons that will become apparent herein, no essential element for the Court’s consideration turns on the difference between 15 October 2016 and 7 March 2017. The parties have two daughters of their marriage both of whom were in their late 30s at the time of the hearing. The husband has three older adult sons from his first marriage. At certain times during the parties’ cohabitation, all or some of the sons were members of the parties’ household. The precise times of them residing with the parties is not revealed in the evidence. It is referred to by the husband in his written submissions, but I disregard those references as the written submissions are not evidence. On the whole of the evidence, it is safe to say that the husband’s three sons resided with the parties as members of their household for periods of time sufficiently significant to be a basis for a consideration by the Court of the wife’s care of the children, which the husband concedes was of high quality, when considering whether there should be any adjustment between the parties pursuant to section 75(2)(o) of the Act (if it is found to be just and equitable to proceed with an order under section 79 of the Act): Robb & Robb (1995) FLC 92-555. The husband, a professional, spent his career involved in the technology industry, from some time before the parties’ relationship until he retired from work. At the commencement of cohabitation, the husband was an employee of J Pty Ltd and shortly thereafter joined with two other persons in conducting a business through a corporation, K Pty Ltd, which he left in 1981. The husband then began setting up a business through a corporate vehicle, L Pty Ltd, of which the husband and the wife were the directors and shareholders. The corporation was registered in 1982 and deregistered in 2016. It is the husband’s evidence that he was the principal concerned with the conduct of the business operated by L Pty Ltd from its inception in 1982 until he retired in 2009, though continuing to conduct some “wind-down” business through L Pty Ltd until its deregistration in 2016.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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