BEASOM & PELLING - [2020] FCCA 2907

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEASOM & PELLING

[2020] FCCA 2907

Catchwords:
FAMILY LAW – Property – dispute between de facto parties after very short 2 year relationship – wife contributing proceeds of sale of pre-relationship property ($158,000) to purchase of new home – wife seeking sale of home and return of the $158,000, with any excess divided equally – husband seeking 60/40 division in wife’s favour – clearly just and equitable to make the orders sought by the wife.

Legislation:

Family Law Act 1975 (Cth), s.75

Cases cited:

Stanford and Stanford (2012) 247 CLR 108

Anson & Meek (2017) FLC 93-816

Baglio v Baglio [2013] FamCA 105

Applicant:

MS BEASOM

Respondent:

MR PELLING

File Number:

DGC 3855 of 2019

Judgment of:

Judge Burchardt

Hearing date:

21 September 2020

Date of Last Submission:

21 September 2020

Delivered at:

Dandenong

Delivered on:

28 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Ambrose

Solicitors for the Applicant:

Ian Brooks

Counsel for the Respondent:

Ms Valentine

Solicitors for the Respondent:

D M Valentine & Associates

ORDERS

The Applicant and the Respondent forthwith do all acts and things and sign all documents as may be required to sell real property situate at and known as B Street, Town C in the State of Victoria (“the real property”)
The proceeds of sale of the real property be applied:
(a)Firstly, the pay the costs, commissions and expenses of the sale;
(b)Second, to discharge the mortgage and any other encumbrance affecting the real property;
(c)Third, the balance then remaining be divided:
(i)As to $158,000 centum thereof, to the Applicant; and
(ii)The remainder divided equally between the parties.
Pending completion of the sale:
(a)The Respondent have the sole right to occupy the real property;
(b)The Respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(c)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(d)Neither party shall encumber the real property without the consent of the other party.
Liberty be reserved to either party to apply with respect to the terms, conditions and execution of the sale/default sale.

IT IS NOTED that publication of this judgment under the pseudonym Beasom & Pelling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3855 of 2019

MS BEASOM

Applicant

And

MR PELLING

Respondent

REASONS FOR JUDGMENT

Introductory

This is a property dispute between two parties who were in a defacto relationship from 2015 until October 2017, or very shortly thereafter. It is convenient to refer to the parties as husband and wife. Both parties accept that the relationship lasted for in excess of two years (implicitly at least) because both parties have sought that the party make orders adjusting their respective property interests. The applicant wife seeks that she be reimbursed the $158,000 that she invested in the former matrimonial home and that upon sale 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 BEASOM & PELLING

Details

AGLC: BEASOM & PELLING [2020] FCCA 2907
Case: [2020] FCCA 2907
Decision Date: 28 October 2020

CaseChat Overview and Summary

In the matter of *Beasom & Pelling*, Judge Burchardt of the Family Court of Australia considered a property dispute between parties who had been in a de facto relationship for two years. The wife sought the sale of their jointly owned home and the return of $158,000, which represented the proceeds of the sale of her pre-relationship property that she had contributed to the purchase of the new home, with any remaining surplus to be divided equally. The husband sought a 60/40 division in the wife's favour.

The central legal issue before the court was how to equitably divide the property of the parties, given the short duration of the relationship and the significant contribution made by the wife from her pre-relationship assets towards the acquisition of the matrimonial home. The court was required to determine whether the wife's claim for the return of her initial contribution, followed by an equal division of the balance, was just and equitable.

Judge Burchardt reasoned that it was clearly just and equitable to make the orders sought by the wife. The court ordered the sale of the real property, with the proceeds to be applied first to sale costs, then to discharge any mortgage or encumbrances. The remaining balance was to be paid to the wife to the extent of $158,000, with any further surplus to be divided equally between the parties. Pending the sale, the husband was granted sole occupation of the property and was ordered to meet mortgage instalments, rates, and taxes. The parties were also restrained from encumbering the property without mutual consent.

Orders

Orders of the court

The Applicant and the Respondent forthwith do all acts and things and sign all documents as may be required to sell real property situate at and known as B Street, Town C in the State of Victoria (“the real property”)

The proceeds of sale of the real property be applied:

(a) Firstly, the pay the costs, commissions and expenses of the sale;

(b) Second, to discharge the mortgage and any other encumbrance affecting the real property;

(i) As to $158,000 centum thereof, to the Applicant; and

(ii) The remainder divided equally between the parties.

Pending completion of the sale:

(a) The Respondent have the sole right to occupy the real property;

(b) The Respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

(d) Neither party shall encumber the real property without the consent of the other party.

Liberty be reserved to either party to apply with respect to the terms, conditions and execution of the sale/default sale.

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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