FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Belkin & Ming [2023] FedCFamC2F 1630
File number(s): PAC 3506 of 2018 Judgment of: JUDGE TURNBULL Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – four-year De-Facto relationship – introduction of a property that is the substantial asset of the pool to be divided - global or asset by asset approach – addbacks- assessment of contributions and consideration of other matters including those set out at s75(2).
FAMILY LAW – COSTS – ICL costs.
Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) Part VIIIAB, ss 90SF, 90SM (1), (3), (4)(a)-(e), 117
Cases cited:
Beck & Beck (1983) FLC 91—318
Briginshaw v Briginshaw (1938) 60 CLR 336
Clauson & Clauson (1995) FLC 92—595
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Grier & Malphas [2016] FamCAFC 84
Hickey & Hickey [2003] FamCA 305
Hunter & Borman [2020] FamCAFC 250
Hutton & Hutton [2007] FamCA 1701
Jabour & Jabour [2019] FamCAFC 78
Jacobson & Jacobson (1989) FLC 92-003
Kennon & Kennon (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC 91-092
Legal Aid ACT & Westwell [2021] FamCAFC 50
Lotta & Lotta [2017] FamCA 50
Mallet & Mallet (1984) 156 CLR 605
Mayne & Mayne [2011] FamCAFC 192
Omacini & Omacini; sub nom AJO & GRO [2005] FamCA 195
Parshen & Parshen (1996) FLC 92-720
Phillips & Phillips [2002] FamCA 300
Robb & Robb [1994] FamCA 136
Stanford & Stanford (2012) 247 CLR 108
Teal & Teal [2010] FamCAFC 120
Theodore & Theodore (No. 3) [2021] FamCA 452
Wallis & Manning [2017] FamCAFC 14
Warwick & Cutler [2016] FamCA 934
Division: Division 2 Family Law Number of paragraphs: 152 Date of last submission/s: 12 September 2023 Date of hearing: 9, 10 & 11 November 2022, 30 & 31 March 2023, 24 April 2023, 25 May 2023, 14 August 2023, and 12 September 2023. Place: Parramatta Counsel for the Applicant: Mr Finch Solicitors for the Applicant: Aaron Legal Solicitors Counsel for the Respondent: Ms Kaiti Solicitors for the Respondent: Jacqui Griffin Mobile Solicitor ORDERS
PAC 3506 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BELKIN
Applicant
AND: MR MING
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.
(a)Within seven (7) days of the date of this Order, both parties do all acts and things to transfer to the Respondent the funds, including any interest, held in trust with Aaron Legal, being all the sale proceeds of the property known as Q Street, Town O.
(b)Within sixty (60) days of the making of this Order the Applicant is to pay to the Respondent the sum of $120,256.40.
(c)If the Applicant does not comply with paragraph 1(b) of this Order, the Respondent has the option to have the property situated at and known as R Street, Suburb F in New South Wales (‘the Suburb F property’) — currently registered in the Applicant’s sole name — transferred into his…
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CaseChat Overview and Summary
The court held that while the usual asset by asset approach was appropriate, it was necessary to consider the contributions of each party and the specific circumstances of the relationship. The court determined that the property in question should be included in the pool of assets to be divided but allowed for adjustments to ensure fairness, such as considering addbacks and the overall contributions of the parties. The court concluded that the best approach was a hybrid method, blending aspects of both global and asset by asset approaches. The court ordered the transfer of certain assets, payment of specific sums, and outlined procedures for the sale of a property if certain conditions were not met. It also provided for a division of any remaining proceeds in a specified ratio.
The court further addressed the issue of costs, specifically the application by the Independent Children’s Lawyer, and dismissed the application for costs. The orders included detailed provisions for the transfer of property, payment of sums, and procedures for the sale of a property, ensuring both parties were clear on their respective obligations and rights. The court granted leave for the parties to inform the Registrar of the Child Support Agency of the orders and reasons, and it discharged all extant property orders and dismissed all extant property applications.
Orders
Orders of the court
PAC 3506 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BELKIN
Applicant
AND:
MR MING
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.
(a) Within seven (7) days of the date of this Order, both parties do all acts and things to transfer to the Respondent the funds, including any interest, held in trust with Aaron Legal, being all the sale proceeds of the property known as Q Street, Town O.
(b) Within sixty (60) days of the making of this Order the Applicant is to pay to the Respondent the sum of $120,256.40.
(c) If the Applicant does not comply with paragraph 1(b) of this Order, the Respondent has the option to have the property situated at and known as R Street, Suburb F in New South Wales (‘the Suburb F property’) — currently registered in the Applicant’s sole name — transferred into his name in accordance with paragraphs 1(d) and 1(e) of this Order.
(d) If the Respondent is entitled to have the Suburb F property transferred to him pursuant to paragraph 1(c) of this Order, then within sixty (60) days of the Applicant not complying with paragraph 1(b) of this Order, the Respondent is to:
(i) Take all steps and do all acts and things necessary to pay all monies owing and discharge of the mortgage registered against the title to the Suburb F property ("the mortgage") and
(ii) Pay to the Applicant the sum of $170,479.60.
(e) Immediately upon paragraph 1(d) having been complied with, the Applicant is to:
(i) Execute all documents necessary to allow the mortgage to be discharged; and
(ii) Execute all documents and do all things necessary to transfer the whole of her right, title and interest in the Suburb F property to the Respondent.
(f) If the Applicant does not comply with paragraph 1(b) of this Order and the Respondent does not comply with paragraph 1(d) of this Order, then the Applicant and the Respondent are to:
(i) Take all immediate necessary steps and execute all necessary documents to cause the Suburb F property to be sold by public auction and in particular:
A. Appoint a firm of solicitors as agreed between the Applicant and the Respondent to prepare the Contract for Sale of Land in respect of the Suburb F property, or failing agreement, with a solicitor as appointed to act for the Applicant in the conveyance of the Suburb F property by the then President of the Law Society of new South Wales;
B. Place the Suburb F property with a licensed real estate agent as agreed between the Applicant and the Respondent, or failing agreement, with a licenced real estate agent as appointed by the then President of the Real Estate Institute of New South Wales (or its equivalent) ("the Agent/Auctioneer") for the sale of the Suburb F property by public auction at the earliest possible date;
C. Execute all documents requested by the Agent/Auctioneer for the sale of the Suburb F property at a reserve price to be agreed between the Applicant and the Respondent, or failing agreement, at a price equivalent to the mean of two valuations by registered valuers, being members of the Australian Institute of Valuers, one obtained by and at the expense of the Applicant and one being obtained by and at the expense of the Respondent, such valuations to be made not more than two weeks apart from each other;
D. Pay equally to the Agent/Auctioneer any sums requested for commission and advertising expenses in relation to the auction;
E. Co-operate in every way with the Agent/Auctioneer in relation to the auction of the Suburb F property; and
F. Attend at the auction sale and negotiate with the highest bidder if the reserve price is not reached and accept the advice of the Agent/Auctioneer as to the acceptance of a price less than the reserve price.
G. In the event that the Suburb F property remains unsold and accept the advice of the Agent/Auctioneer as to the sale price and the method of sale until such time that the Suburb F property is sold.
(g) Upon the settlement of the sale of the Suburb F property both parties' are to do all acts and things necessary to ensure that, the proceeds of sale be paid in the following manner and priority:
(i) In payment of the amount required to discharge the mortgage;
(ii) In payment of any outstanding council and/or utility rates;
(iii) In payment of the Agent/Auctioneer's commission and auction expenses (if any) due on the sale;
(iv) In payment of legal costs on sale; and
(v) In payment of the balance be held in trust to be distributed to the parties in accordance with the method set out in paragraph 1(h) of this Order.
(h) If the Suburb F property is sold and there is a balance to be distributed pursuant to paragraph 1(g)(v) of this Order, then there be a division of all property of the parties in the proportion 70% to the Applicant and 30% to the Respondent, calculated as follows: -
WHERE:
A. = the net assets retained by the Applicant - ($207,561);[1]
B. = the net assets retained by the Respondent - ($41,761);[2]
C. = the net proceeds of the sale of the Suburb F property per sub-paragraph 1(g)(v) of this Order.
D. AND WHERE A+B+C = I;
E. the Applicant shall receive a sum equal to (I x 70%) - A, and
F. the Respondent shall receive a sum equal to (I x 30%) - B.
2. The parties' have liberty to apply in relation to the implementation of this Order, including in relation to the sale of the Suburb F property and calculation of the monies to be paid to each party from the sale proceeds to produce a 70/30% outcome.
3. Pending the payment of monies to the Respondent pursuant to paragraph 1(b) of this Order, or the transfer of the Suburb F property to the Respondent pursuant to paragraph 1(d) of this Order, or the sale of the Suburb F property pursuant to paragraph 1(f) of this Order, the Applicant will have sole and exclusive use and occupation of the Suburb F property and will be entitled to all and any rent received from the Suburb F property and will meet all outgoings relating to the Suburb F property as and when they fall due, including the payment of the mortgage (principal and interest), rates, taxes and utility expenses.
4. Subject to the provisions of this Order, each party will otherwise retain, and where necessary, transfer to the other party, all other real estate, superannuation, long service leave and/or assets of any kind held in their name and/or in their possession, or in which they hold an interest (including any present or future entitlement as a beneficiary to any estate or any chose in action).
5. Subject to the provisions of this Order, with respect to past, present, or future debts and/or liabilities not otherwise referred to in this Order for which either party is or will become liable — neither party will seek contribution from the other with respect to such debts and/or liabilities, and each party must wholly indemnify the other party in relation to the same. Further, if there is a joint debt attached to an asset to be retained by one of the parties, then the party retaining that asset will take all action to wholly release and indemnify the other party from and in relation to such debt.
6. Both parties' do all act and things and sign all necessary documents and instruments so as give full effect to the terms of this Order.
7. In the event of either party refusing or neglecting to sign any documents required to be signed to give full effect to the terms of this Order, including the necessary documents to effect a sale, transfer or assignment of relevant property, within seven days of being requested by a party, then the Registrar of the Court, pursuant to Section 106A(1) of the Family Law Act 1975 (Cth), is hereby appointed and empowered, to execute such documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to such.
8. Save for this Order, all extant property orders are discharged.
9. All extant property applications are dismissed.
10. Leave is granted for the parties to provide a copy of these orders and Reasons to the Registrar of the Child Support Agency.
The Independent Children’s Lawyers costs
11. The Independent children’s lawyer’s application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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
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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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