FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bennett & Crick [2021] FedCFamC2F 122
File number(s): PAC 2610 of 2016 Judgment of: JUDGE OBRADOVIC Date of judgment: 21 October 2021 Catchwords: FAMILY LAW – property – adjustment of property interests – de facto relationship – family violence – lack of disclosure – assessment of contributions – just and equitable Legislation: Family Law Act 1975 (Cth), ss 79, 90RD, 90SF, 90SM, 117 Cases cited: Bennett & Crick [2017] FCCA 329
Bevan & Bevan [2014] FamCAFC 19
Black & Kellner [1992] FamCA 2
Chapman & Chapman [2014] FamCAFC 91
Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 364
Greedy and Greedy [1982] FamCA 41
I & I (No.2) [1995] FamCA 80
In the Marriage of Weir (1992) 16 FamLR 154
Jensen &Jensen [1982] FamCA 57
Kennon & Kennon (1997) FLC 92-757
Kohan & Kohan [1992] FamCA 116
Latoudis v Casey [1990] HCA 59
Marriage of Briese [1985] FamCA 23
Medlon & Medlon (No.6) (Indemnity Costs) [2015] FamCAFC 157
Munday v Bowman (1997) FLC 92-784
Oamra & Williams [2021] FamCAFC 117
Oriolo v Oriolo [1985] FamCA 54
Penfold & Penfold [1980] HCA 4
Peters & Walker [2015] FamCA 732
Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993
Renald & Renald (Costs) [2018] FamCAFC 4
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Stasiuk & Guild [2021] FamCAFC 62
Teal & Teal [2010] FamCAFC 120
Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd [1991] FCA 225
Trevi & Trevi [2018] FamCAFC 173Division: Division 2 Family Law Date of hearing: 16, 17 November 2020, 28 January and 18 October 2021 Place: Parramatta Number of paragraphs: 152 Counsel for the Applicant: Ms Druitt Solicitor for the Applicant: Valenti & Valenti Solicitors Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Grover Law ORDERS
PAC 2610 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BENNETT
Applicant
AND: MR CRICK
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.
The Applicant de facto wife, Ms Bennett (“wife”) shall retain the sole right, title and interest in the property known as and situated at B Street, Suburb L NSW Folio ID…
(“the Suburb L property”) and the Respondent de facto husband, Mr Crick (“husband”) shall forthwith relinquish all right, claim, title and interest therein.
2.The husband shall be solely entitled to the net proceeds of sale of the property known as and situated at F Street, Suburb D, NSW and the wife shall forthwith relinquish all right, title, claim or interest therein.
3.The husband shall retain the sole right, title and interest in the business and company known as Company…
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CaseChat Overview and Summary
The court's reasoning focused on the principles of fairness and equity, taking into account the husband's history of family violence and his failure to fully disclose his financial situation. The court emphasised the importance of protecting the wife, who had been subjected to violence and had made significant contributions to the relationship. The orders reflected the court's determination to provide a just and equitable outcome, ensuring that the wife was adequately compensated for her contributions and protected from the husband's financial liabilities. The final orders outlined the specific property distributions, sale procedures for the Suburb F property, and the financial responsibilities of each party, ensuring a clear and enforceable framework for the implementation of the court's decision.
Orders
Orders of the court
PAC 2610 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BENNETT
Applicant
AND:
MR CRICK
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.
The Applicant de facto wife, Ms Bennett (“wife”) shall retain the sole right, title and interest in the property known as and situated at B Street, Suburb L NSW Folio ID…
(“the Suburb L property”) and the Respondent de facto husband, Mr Crick (“husband”) shall forthwith relinquish all right, claim, title and interest therein.
2. The husband shall be solely entitled to the net proceeds of sale of the property known as and situated at F Street, Suburb D, NSW and the wife shall forthwith relinquish all right, title, claim or interest therein.
3. The husband shall retain the sole right, title and interest in the business and company known as Company F and all the assets and liabilities of the business/company and the wife shall forthwith relinquish all right, claim, title or interest therein.
4. Within 14 days of the date of these orders, the husband and wife shall do all such things, acts and deeds and sign all documents necessary to list for sale and sell the property known as and situated at G Street, Suburb F NSW Folio ID … (“the Suburb F property”) at the best price reasonably obtainable with vacant possession and, for that purpose:
(a) The husband and wife shall agree upon and appoint a reputable real estate agent or agents for sale and shall agree upon a sale price at which that property is to be listed for sale, such sale to proceed, in the first instance, by private treaty.
(b) In the event that the parties are unable to agree upon the appointment of an agent or agents for the sale within 14 days of the date of these orders, that they or either of them may forthwith request the President for the time being of the Real Institute of New South Wales to appoint an agent or agents for sale.
(c) In the event that the parties are unable to agree upon the amount at which the Suburb F property is to be listed for sale within 14 days of the date of these orders, they or either of them may forthwith request the President of the Australian Property Institute (NSW Division) to appoint a valuer to carry out a valuation of that property and the valuation so determined shall be the amount at which that property is listed for sale by private treaty.
(d) The parties shall bear equally the costs of the aforesaid Presidents and the valuer, such valuer to act as an expert and not as an arbitrator.
5. In the event that the Suburb F property has not been sold by private treaty within three months of the date upon which it is first listed for sale, then the parties or either of them may forthwith request the agent or agents to list that property for sale by auction, such auction to take place within six weeks of it being so listed for auction sale. The parties shall agree upon a reserve price or failing that agreement by no later than 3 weeks before the auction, the parties or either of them may request the President for the time being of the Australian Property Institute (NSW Division) to appoint a valuer to carry out a valuation of that property and 100% of the amount at which the property is so valued shall be the reserve price point for the purpose of that auction, and the parties shall bear equally the expenses of such President and any valuer so appointed by him, such valuer to act as an expert and not as arbitrator.
6. In the event that the Suburb F property does not sell at the auction as above referred to in the preceding order or within 14 days thereafter, the parties or either of them may request that the property be relisted for sale by private treaty, the sale price to be agreed upon or failing agreement to be no less than 100% of the valuation earlier obtained in accordance with the provisions of orders 4(c) and (d) hereof and also provide however that either party may also, upon one month’s notice in writing to the other, require the sale of the property by way of a second auction to be undertaken in accordance with the provisions of order 5 with a new reserve price of 90% of the valuation referred to therein.
7. Upon completion of sale of the Suburb F property the proceeds thereof be distributed in the following manner and priority:
(a) Firstly, in payment of the agent’s commission, auctioneer’s and auction expenses and proper solicitor’s costs incurred on the sale;
(b) Secondly, in payment of the mortgage from Westpac bank over the property;
(c) Thirdly, in adjustment of Council rates and water rates on settlement;
(d) Fourthly,
(i) $ 3,302,199 to the wife; and
(ii) the remainder to the husband.
8. Pending the completion of sale of the Suburb F property the husband shall not further encumber, charge or mortgage his interest in the Suburb F property.
9. The solicitors acting on the sale of the Suburb F property shall be Grover Law who shall prepare the contract for sale in accordance with these orders.
10. IT IS DECLARED that unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders, each party is solely entitled to the exclusion of the other party to all property including furniture and personal effects, motor vehicle trucks, trailers, machinery, monies in bank accounts or building societies, superannuation contributions and long service and other employment type emoluments (and also including choses in action) in the possession or control of such party as at this date.
11. The husband shall be responsible for all debts in his name, or the name of the business/company known as Company F as at the date of these orders and in the future and the husband shall indemnify and shall continue to indemnify the wife against any liability of any nature which the husband may have in his name or arising from the business Company F.
12. The husband shall be solely responsible for tax liabilities in his name or that of Company F and indemnifies and shall continue to indemnify the wife against any such liabilities.
13. The wife shall be responsible for any debts in her name as at the date of these orders and in the future and the wife shall indemnify and keep indemnified the husband in respect of any such debts.
14. In the event that these orders herein contained direct either the husband or the wife or both of them to execute a Deed or Instrument necessary to give effect to these orders, and that person has, after the period of 7 days after written notice is provided, refused or neglected to comply with that direction, then the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute any such document in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the Deed or Instrument and the costs thrown away by reason of such default shall be paid by the party whose default has occasioned such default on an indemnity basis.
15. The parties are granted liberty to apply in relation to the implementation and/or enforcement of these orders on seven days’ notice.
16. Within 28 days, the husband is to pay to the wife costs in the amount of $19,038.
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
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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