Beaumont and Gardner and Anor (No.2) - [2015] FCCA 3274

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEAUMONT & GARDNER & ANOR (No.2)

[2015] FCCA 3274

Catchwords:
FAMILY LAW – Property – applications in a case – interim orders – where respondent deceased – application to restrain Estate of deceased respondent from requiring applicant to vacate home unit – where home unit the only asset of superannuation fund – where executor needs to wind up estate – interim property – payment to applicant of a lump sum by way of interim property settlement – just and equitable.

PRACTICE AND PROCEDURE – Application to substitute legal personal representative as a party in place of deceased respondent.

PRACTICE AND PROCEDURE – Transfer to Family Court – complexity of subject matter – likely length of final hearing – consideration of matters in Federal Circuit Court of Australia Act 1999 (Cth), s.39 – consideration of Rule 8.02.

Legislation:

Family Law Act 1975 (Cth), ss.90SF, 90SG, 90SM, 90SS, 114

Federal Circuit Court of Australia Act 1999 (Cth), s.39
Superannuation Industry (Supervision) Act 1993 (Cth), ss.10, 62, 71, 109
Superannuation Industry (Supervision) Regulations 1994 (Cth)
Federal Circuit Court Rules 2001, rr.8.02, 11.02

Cases cited:
Beaumont & Gardner [2013] FCCA 2282
Beaumont & Gardner & Anor [2015] FCCA 3201
Brown & Murdoch (No.3) [2014] FamCA 1005
Gee & Luxford [2015] FCCA 3217
Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518

Applicant:

MS BEAUMONT

First Respondent:

MR C GARDNER

Second Respondent:

(OMITTED) PTY LTD

File Number:

SYC 5026 of 2013

Judgment of:

Judge Scarlett

Hearing date:

4 December 2015

Date of Last Submission:

4 December 2015

Delivered at:

Sydney

Delivered on:

11 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hodgson (direct brief)

Counsel for the First Respondent:

Ms Messner

Solicitors for the First Respondent:

Moylan Family Lawyers

Solicitor for the Second Respondent:

Mr Forster

Solicitors for the Second Respondent:

Forsters Solicitors

ORDERS

UNTIL FURTHER ORDER

Mr C Gardner as the Legal Personal Representative of the late Mr M Gardner is substituted as a party under the provisions of subsection 90SM(8) of the Family Law Act 1975 with effect from 26 November 2015.
(omitted) Pty Ltd is joined as a party to the proceedings as the Second Respondent with effect from 26 November 2015.
The Applicant is to vacate from the property located at Property C, NSW no later than Saturday 30 January 2016 upon payment to her of the sum of $18,000.00 by way of interim property settlement.
The First Respondent is to pay to the Applicant the sum of $18,000.00 referred to in the immediately preceding Order immediately upon her vacating the said property referred to in the immediately preceding Order.
The First Respondent is restrained by injunction from selling, transferring or otherwise disposing of artwork by (omitted) and (omitted) formerly held in the property at Property T in the State of New South Wales.
The Application is transferred to the Family Court of Australia at the Court’s Sydney Registry under the provisions of section 39 of the Federal Circuit Court…

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.

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Details

Case: [2015] FCCA 3274
Decision Date: 11 December 2015

CaseChat Overview and Summary

In *Beaumont and Gardner and Anor (No.2)*, Judge Scarlett of the Federal Circuit Court of Australia considered an application by an applicant seeking interim orders in family law proceedings where the respondent had died. The applicant sought to restrain the estate of the deceased respondent from requiring her to vacate a home unit, which was the sole asset of a superannuation fund. The executor of the estate required the winding up of the estate, and the court also considered an application to substitute the legal personal representative as a party in place of the deceased respondent.

The court was required to determine whether to grant interim property settlement payments to the applicant and whether it was just and equitable to do so. Further issues included the substitution of the deceased respondent's legal personal representative as a party and the transfer of the proceedings to the Family Court of Australia, given the complexity and likely length of the final hearing. The court also had to consider the appropriate interim orders regarding the property and certain artworks.

Applying the principles of family law and procedural rules, the court ordered that Mr C Gardner, as the legal personal representative of the late Mr M Gardner, be substituted as a party. The court also joined (omitted) Pty Ltd as the Second Respondent. Crucially, the applicant was ordered to vacate the home unit by 30 January 2016 upon payment of $18,000 by way of interim property settlement, with the First Respondent ordered to make this payment immediately upon the applicant vacating. The First Respondent was also restrained from disposing of certain artworks. The proceedings were transferred to the Family Court of Australia, and all other interim applications were dismissed.

Orders

Orders of the court

UNTIL FURTHER ORDER

Mr C Gardner as the Legal Personal Representative of the late Mr M Gardner is substituted as a party under the provisions of subsection 90SM(8) of the Family Law Act 1975 with effect from 26 November 2015.

(omitted) Pty Ltd is joined as a party to the proceedings as the Second Respondent with effect from 26 November 2015.

The Applicant is to vacate from the property located at Property C, NSW no later than Saturday 30 January 2016 upon payment to her of the sum of $18,000.00 by way of interim property settlement.

The First Respondent is to pay to the Applicant the sum of $18,000.00 referred to in the immediately preceding Order immediately upon her vacating the said property referred to in the immediately preceding Order.

The First Respondent is restrained by injunction from selling, transferring or otherwise disposing of artwork by (omitted) and (omitted) formerly held in the property at Property T in the State of New South Wales.

The Application is transferred to the Family Court of Australia at the Court’s Sydney Registry under the provisions of section 39 of the Federal Circuit Court of Australia Act 1999.

All other interim Applications are dismissed.

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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