Bateman & Bowe

Case [2013] FamCA 253


FAMILY COURT OF AUSTRALIA

BATEMAN & BOWE [2013] FamCA 253
FAMILY LAW – PROPERTY SETTLEMENT – DE FACTO RELATIONSHIP – where the parties are agreed that there was a de facto relationship for the purposes of Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) – where the parties seek property settlement orders pursuant to s 90SM of the Act – where the de facto wife made significant initial financial contributions via unencumbered real properties – where the de facto husband made significant financial contributions during the relationship – where the parties engaged in property development during the relationship – where the de facto wife was primarily responsible for such development – where the de facto wife was primarily responsible for caring for parties’ only child – where, post-separation, a property of the parties’ was sold and the proceeds of sale used unilaterally, and without notice to the de facto husband, by the de facto wife, together with drawings on loan facilities secured over other real properties, to purchase another real property and commence development on same – where that real property and the attendant liabilities are now included in the pool of the parties’ existing legal and equitable interests – whether it would be just and equitable to make adjustments to the parties’ current legal and equitable interests – where it is just and equitable to make an adjustment – consideration of what adjustment ought be made – where the contributions during the relationship and post-separation favour the de facto wife – orders made that the property pool be distributed in the proportion 55:45 per cent in favour of the de facto wife.

Family Law Act 1975 (Cth)

Family Law Rules 2004

Af Petersens and Af Petersens (1981) FLC 91-095
Biltoft and Biltoft (1995) FLC 92-614
Black and Kellner (1992) FLC 92-287
C & C [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204
Coghlan and Coghlan (2005) FLC 93-220
Kowaliw and Kowaliw (1981) FLC 91-092
M & M [1998] FamCA 42
Norbis v Norbis (1986) 161 CLR 513
Omacini and Omacini (2005) FLC 93-218
Prince and Prince (1984) FLC 91-501
Stanford v Stanford (2012) 293 ALR 70
Watson & Ling [2013] FamCA 57
Weir and Weir (1993) FLC 92-338
Zalewski and Zalewski (2005) FLC 93-241
APPLICANT: Mr Bateman  
RESPONDENT: Ms Bowe
FILE NUMBER: SYC 5565 of 2010
DATE DELIVERED: 19 April 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: Murphy J
HEARING DATE:

27-28 February 2012

17 May 2012
21 May 2012
18 September 2012
16 November 2012

WRITTEN SUBMISSIONS: Applicant on 30/11/2012
Respondent on 21/12/2012
Applicant on 25/02/2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodgson
SOLICITOR FOR THE APPLICANT: Sharon Moss Legal
COUNSEL FOR THE RESPONDENT: Mr Schonell SC
SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

Orders

That as and by way of property adjustment order pursuant to s 90SM of the Family Law Act 1975 (Cth) it is ordered that:

  1. The existing legal and equitable interests of the parties be adjusted such that…

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BATEMAN & BOWE [2013] FamCA 253
Case
[2013] FamCA 253
Decision Date

CaseChat Overview and Summary

In *Bateman & Bowe*, Murphy J of the Federal Circuit Court of Australia was required to determine property adjustment orders under section 90SM of the *Family Law Act 1975* (Cth). The dispute concerned the division of the parties' existing legal and equitable interests in their property.

The central legal issue before the court was how to adjust the parties' property interests to achieve a just and equitable outcome. This involved determining the appropriate percentage split of the value of the parties' combined property.

Murphy J ordered that the wife receive 55 per cent of the value of the parties' property, with the husband receiving 45 per cent. To give effect to this adjustment, the parties were directed to jointly file Minutes of Order within 21 days, outlining the agreed method of achieving this division, in accordance with a specified "Property Adjustment Order Table" and paragraph 178 of the court's reasons. In the event of disagreement, the matter was to be relisted for further determination, with directions for the filing of material concerning costs.

Orders

Orders of the court

That as and by way of property adjustment order pursuant to s 90SM of the Family Law Act 1975 (Cth) it is ordered that:

1.

The existing legal and equitable interests of the parties be adjusted such that the wife receive 55 per cent of the value thereof and the husband 45 per cent and so as to give effect to that adjustment, the parties shall, within 21 days of the date of this Order, jointly file Minutes of Order giving agreed effect to that adjustment in accordance with the “Property Adjustment Order Table” (at paragraph 176) and paragraph 178 of the Reasons for Judgment delivered contemporaneously herewith.

2.

In the event that the parties are unable or unwilling to reach agreement as contemplated by paragraph 1 of these Orders, the matter be listed before Murphy J, or another Judge if Murphy J is unavailable, at a date and time to be advised.

3.

In the event that it becomes necessary to list the matter as contemplated by paragraph 2 of these Orders, each of the parties shall file and serve not less than seven (7) days prior to the said listing, all such material as might be necessary so as to allow the Court to determine the issue of the costs of and incidental to that listing, including, if appropriate, any issue of indemnity costs.

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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