Balen & Balen - [2022] FedCFamC2F 336

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balen & Balen [2022] FedCFamC2F 336

File number: SYC 5731 of 2015

Judgment of: JUDGE MORLEY

Date of judgment: 25 March 2022

Catchwords:
FAMILY LAW – Property – final undefended hearing –matter has had a protracted litigation history – circumstances preventing matter proceeding to final defended hearing – Respondent dropped out of proceedings in adjourned period – delay in the matter proceeding to final undefended hearing – matter proceeds to final undefended hearing as against the Respondent.

FAMILY LAW – Property – consideration of involvement of third party caveators on former matrimonial home – unknown to Court at times whether caveators have or have ever had a caveatable interest – failure to participate by third party caveators – matter proceeds on an undefended basis as against third party caveators.

FAMILY LAW – Property – short marriage – Court finds that the Applicant made 95% of contributions – Court finds that Respondent made 5% of contributions – pattern of badgering and demanding conduct by the Respondent to the Applicant to change her financial circumstances – at cohabitation Respondent was an undisclosed undischarged bankrupt –Applicant’s financial position dramatically worsened by the Respondent’s actions during the short marriage – adjustment under section 79(4)(e) of 5% to the Applicant.

Legislation:
Family Law Act 1975 (Cth) ss 4AB, 75, 79, 79A, 90AE, 90AF, 92, 117.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01.

Federal Circuit Rules 2001 (Cth) rr r 15.12, 15A.11, 15A.15, 24.03, 24.04.

Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW) r 3.

Cases cited:
Anastasio & Anastasio [1981] FamCA 76

Calverley v Green (1984) 155 CLR 242

Chancellor & McCoy [2016] FamCAFC 256

Dickons & Dickons [2012] FamCAFC 154

Fields & Smith [2015] FamCAFC 57

Fontana & Fontana [2018] FamCAFC 63

Grier & Malphas (2017) 55 Fam LR 107

Hepworth v Hepworth (1963) 110 CLR 309

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

In the Marriage of Black (1992) 106 FLR 154

In the Marriage of Harris (1991) 104 FLR 458

In the marriage of Kowaliw (1981) FLC 91-092

Jabour & Jabour [2019] FamCAFC 78

Kennon v Kennon (1997) 139 FLR 118

Melville & Melville (No 3) [2020] FamCAFC 231

Newett & Newett [2020] FamCAFC 76

Stanford & Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 246

Date of last submission/s: 2 August 2021

Date of hearing: 7 May 2021

Place: Sydney

Counsel for the Applicant: Ms Snelling

Solicitor for the Applicant: Suanne Wyman & Associates

Solicitor for the Respondent: The Respondent did not appear
ORDERS

SYC 5731 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BALEN

Applicant

AND:
MR BALEN

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

25 MARCH 2022

THE COURT ORDERS THAT:
1.Pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)That within 28 days from the date of this order, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balen & Balen

Details

AGLC: Balen & Balen [2022] FedCFamC2F 336
Case: [2022] FedCFamC2F 336
Decision Date

CaseChat Overview and Summary

The matter is a property settlement proceeding between Ms Balen (the Applicant) and Mr Balen (the Respondent). The Applicant seeks an order pursuant to section 79 of the Family Law Act 1975 (Cth) that the parties’ former matrimonial home be transferred to the Applicant and that the mortgage secured on the property be discharged. The Applicant also seeks an order pursuant to section 80 of the Act that the Respondent and two third party caveators remove their caveats on title. The Respondent has not appeared in the proceedings since October 2020. The third party caveators have not participated in the proceedings. The Applicant seeks costs. The Court found that the Applicant had made 95% of contributions and that the Respondent had made 5% of contributions. The Court found that it was just and equitable to make an order under section 79 of the Act and that it was appropriate to make an order transferring the property to the Applicant and discharging the mortgage. The Court also found that it was appropriate to make an order under section 80 of the Act removing the caveats on title. The Court made no orders as to costs.

Orders