FEDERAL CIRCUIT COURT OF AUSTRALIA
Balstone & Hamer [2021] FCCA 2006
File number(s): PAC 4366 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 26 August 2021 Catchwords: FAMILY LAW – de facto property adjustment – orders made Legislation: Family Law Act 1975 (Cth), ss 4AA, 90SM, 90SF, 75(2)(o) Cases cited: Crick & Bennett [2018] FamCAFC 68
Lotta & Lotta [2017] FamCA 50
Number of paragraphs: 101 Date of last submission/s: 6 May 2021 Date of hearing: 5-6 May 2021 Place: Parramatta Counsel for the Applicant: Ms Friedlander Solicitor for the Applicant: Mr Siu Counsel for the Respondent: Mr Todd Solicitor for the Respondent: Ms Kermode ORDERS
PAC 4366 of 2018 BETWEEN: MS BALSTONE
Applicant
AND: MR HAMER
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.The Court declares that the parties were in a de facto relationship, within the meaning of section 4AA of the Family Law Act 1975 (Cth) (“the Act”), from about mid-2013 to about July 2018.
2.Within 2 months the Applicant pay to the Respondent the sum of $282,067 and that on such payment the Respondent cause to be discharged the total mortgage debt over the property situated at B Street, Suburb C and being the whole of the land in title reference … (the property) and further cause title to the property to be transferred into the name of the Applicant.
3.Failing such above payment by the Applicant to the Respondent, that the Respondent forthwith take all necessary steps and execute all necessary documents to cause the property to be sold by private treaty at the earliest possible date at a price to be determined by the Respondent and that the proceeds of sale be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)Payment of any money due and owing to the mortgagee;
(c)The net proceeds of sale to be paid to the Applicant.
4.That on or before completion of the sale of the property, the Respondent shall additionally pay the Applicant the sum of at least $142,982 ensuring that, in any event, such additional sum, which when added to the above net proceeds of sale and the Applicant’s existing assets totalling $52,666, effectively results in the Applicant receiving at least $510,598.
5.That on or before completion of the sale of the property the party residing therein will provide vacant possession, remove all items not included in the sale and ensure the property is left in a clean and tidy condition.
6.That the Respondent have sole right title and interest in the unit situated at D Street, Suburb E and be solely responsible for the mortgage on said property.
7.That the parties have sole right title and interest in any shares, money in bank accounts and money in cryptocurrency accounts in their sole name.
8.That the Applicant have sole right, title and interest in the Motor Vehicle 1.
9.That the Respondent have sole right, title and interest in the…
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- Balstone & Hamer [2021] FCCA 2006
- Case
- [2021] FCCA 2006
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was to determine the period during which the parties were in a de facto relationship, as defined by section 4AA of the *Family Law Act 1975* (Cth). This determination was crucial for the court to exercise its jurisdiction to make property adjustment orders. The court also had to consider the various assets and liabilities of the parties, including real estate, vehicles, and financial accounts, to achieve an equitable distribution.
Newbrun J considered all the documentary evidence, including affidavits and exhibits, as well as the oral evidence of the parties and their submissions. The court applied the principles outlined in section 4AA(2) of the Act, which requires regard to all the circumstances of the relationship when determining if parties were a couple living together on a genuine domestic basis. While the respondent conceded a de facto relationship existed from mid-2013 to July 2018, the applicant contended it began in June 2005. The court analysed the history of the parties' interactions, including periods of separation, overseas work commitments of the respondent, and other relationships, to make findings regarding the commencement and cessation of their de facto relationship.
The court declared that the parties were in a de facto relationship from approximately mid-2013 to approximately July 2018. Orders were made for the division of property, including the transfer of a property at B Street, Suburb C, to the applicant upon payment of a specified sum to the respondent, or alternatively, for the sale of that property with proceeds disbursed in a particular order. Further orders addressed the division of a property at D Street, Suburb E, and the allocation of sole title and interest in various shares, bank accounts, cryptocurrency accounts, and motor vehicles between the parties.
Orders
Orders of the court
PAC 4366 of 2018
BETWEEN:
MS BALSTONE
Applicant
AND:
MR HAMER
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1. The Court declares that the parties were in a de facto relationship, within the meaning of section 4AA of the Family Law Act 1975 (Cth) (“the Act”), from about mid-2013 to about July 2018.
2. Within 2 months the Applicant pay to the Respondent the sum of $282,067 and that on such payment the Respondent cause to be discharged the total mortgage debt over the property situated at B Street, Suburb C and being the whole of the land in title reference … (the property) and further cause title to the property to be transferred into the name of the Applicant.
3. Failing such above payment by the Applicant to the Respondent, that the Respondent forthwith take all necessary steps and execute all necessary documents to cause the property to be sold by private treaty at the earliest possible date at a price to be determined by the Respondent and that the proceeds of sale be disbursed as follows:
(a) Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b) Payment of any money due and owing to the mortgagee;
(c) The net proceeds of sale to be paid to the Applicant.
4. That on or before completion of the sale of the property, the Respondent shall additionally pay the Applicant the sum of at least $142,982 ensuring that, in any event, such additional sum, which when added to the above net proceeds of sale and the Applicant’s existing assets totalling $52,666, effectively results in the Applicant receiving at least $510,598.
5. That on or before completion of the sale of the property the party residing therein will provide vacant possession, remove all items not included in the sale and ensure the property is left in a clean and tidy condition.
6. That the Respondent have sole right title and interest in the unit situated at D Street, Suburb E and be solely responsible for the mortgage on said property.
7. That the parties have sole right title and interest in any shares, money in bank accounts and money in cryptocurrency accounts in their sole name.
8. That the Applicant have sole right, title and interest in the Motor Vehicle 1.
9. That the Respondent have sole right, title and interest in the Motor Vehicle 2.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In resolving the issue of the duration of the parties’ de facto relationship, the Court is required to have regard to all the circumstances of the parties’ relationship and determine whether they had a relationship as a couple living together on a genuine domestic basis. Those “circumstances” may include any or all of the matters set out in section 4AA(2) of the Act. The Court has considered all the parties’ documentary evidence relied upon (including affidavits), the documentary Exhibits, the oral evidence of the parties, and submissions. The Court now proceeds to consider the circumstances of the parties’ relationship and make findings:a) The duration of the relationship The Respondent concedes that the parties had a de facto relationship from about mid-2013 to about July 2018. Again, the Applicant contends that the de facto relationship spanned the period from about June 2005 to about July 2018. The parties met in about June 2005 in Sydney. The parties would meet up about once a month when the Respondent was home from overseas (he worked as a tradesman). At the time the Respondent’s work meant that he spent six weeks at overseas and six weeks at home. In about 2006, the parties moved to Perth as the Respondent at the time was doing a course there to further his career. The Applicant obtained work with Employer H. In about late November or early December 2006, the parties’ relationship ceased, and the Applicant returned to Sydney. The Respondent had commenced an intimate sexual relationship with Ms F in City J at about that time with that relationship lasting about one month. By about mid-March 2007, the Applicant had returned to Perth. She had received, at about that time, a wedding invitation addressed to her alone from a family in Sydney, with the envelope address being an address in City J. During the first half of 2007, the Respondent spent some time working overseas. In about 2007, the parties travelled from Perth to Sydney by car. The Respondent sent the Applicant an affectionate birthday card for the Applicant’s birthday in 2007 which card was sent to the Applicant’s parent’s address at Suburb K. The Applicant had employment in Sydney as a sales assistant from 2007 until at least 2008. She also had employment in Sydney as a customer service officer from 2007 to 2008. The Respondent purchased a property at Suburb E in about early December 2007. The Respondent provided all the finance for this property. At about this time the Respondent would be overseas on a 5 weeks on/5 weeks off roster, or sometimes he would be posted overseas for 6 weeks at a time. In October 2008, the Respondent sent the Applicant some affectionate text messages. At Christmas 2008 the Respondent’s father and partner sent the parties a Christmas card. The Respondent gave presents to the Applicant for her 29th birthday in 2009. The Respondent had a relationship with Ms L from 2009 to 2010. In about early February 2010 the Applicant found out about Ms L. At this time the Applicant considered the parties had broken up.