Biggs and Lang - [2018] FamCA 909

FAMILY COURT OF AUSTRALIA

BIGGS & LANG

[2018] FamCA 909

FAMILY LAW – PROPERTY – De facto property adjustment – Where appropriate to make property orders – Where short relationship – Where wife has the primary care of the children – Where children have ongoing health problems limiting wife’s capacity to work – Where no child support paid by the husband for over four years – Where wife solely responsible for the children’s living expenses – Where wife and children living are in rented accommodation – Where husband living in matrimonial home – Where wife at cohabitation came into relationship with significant savings – Where overall contributions favour the wife.

Family Law Act 1975 (Cth) ss 75, 79, 90SF, 90SM

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons [2012] FamCAFC 154
Pandelis & Pandelis [2018] FamCAFC 66
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT:

Mr Biggs

RESPONDENT:

Ms Lang

FILE NUMBER:

PAC

6031

2015

DATE DELIVERED:

9 November 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 October 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

Mr Biggs

SOLICITOR FOR THE RESPONDENT:

Ms Watson of Watson Law Pty Ltd

Orders

That within three months from the date of these orders the wife pay to the husband the sum of $37,146.25.
In consideration of and concurrently with the payment to him, the husband do all things necessary to transfer to the wife his interest in the property at B Street, C Town, NSW being the land comprised in Folio ….
That concurrently with the transfer of the property at C Town to her, the wife discharge or, otherwise, refinance the mortgages secured thereon into her own name.
That pending transfer to the wife, the husband shall pay as they fall due and payable council rates, water rates and property outgoings and maintain mortgage payments such that the total balance outstanding does not exceed the sum of $229,330.00 and indemnify the wife from any amount owing in excess of that sum provided always that the wife shall be entitled to deduct from the sum payable to the husband any mortgage sum in excess of $229,300.00 and any arrears of rates and utilities as at the date of settlement of the transfer to the wife.
That upon payment to him as provided, the husband shall forthwith vacate the said property and ensure that it is in good order and condition so as to permit the wife and children to reside therein.
In default of the wife complying with order (1) above and within five months from this date, the husband shall pay to the wife or as she, otherwise, may direct the sum of $333,523.00 and upon payment of such sum the husband be declared solely entitled to the property at B Street, C Town NSW being the land comprised in Folio ID…

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 Biggs and Lang

Details

AGLC: Biggs and Lang [2018] FamCA 909
Case: [2018] FamCA 909
Decision Date: 9 November 2018

CaseChat Overview and Summary

This matter concerned an application by the wife for property settlement orders, with the husband also seeking orders in relation to the same property. The dispute centred on the division of assets and liabilities between the parties, specifically concerning their former matrimonial home. The decision was made by Foster J.

The court was required to determine the appropriate division of the parties' property interests, including the former matrimonial home, and to make orders for the payment of money and the transfer of property interests. The court also had to consider provisions for default in compliance with its orders, including the potential sale of the property and the apportionment of sale proceeds.

Foster J applied principles of property adjustment under the Family Law Act 1975 (Cth), considering the asset pool as outlined in paragraph [57] of the reasons for judgment. The court's reasoning involved a complex series of orders designed to achieve a final division of assets. Initially, the wife was ordered to pay a sum to the husband and to take over the matrimonial home, with the husband to vacate. However, the orders also provided for alternative scenarios, including the husband paying a significant sum to the wife, which would result in him retaining sole entitlement to the property. In the event of the husband's default in this payment, the wife was appointed trustee for sale of the property, with the net proceeds to be divided 75% to the wife and 25% to the husband.

The court made detailed orders regarding the payment of money, transfer of property interests, discharge of mortgages, and the responsibilities of each party pending settlement or sale. Liberty to apply was granted for implementation or enforcement, and all other property applications were dismissed.

Orders

Orders of the court

That within three months from the date of these orders the wife pay to the husband the sum of $37,146.25.

In consideration of and concurrently with the payment to him, the husband do all things necessary to transfer to the wife his interest in the property at B Street, C Town, NSW being the land comprised in Folio ….

That concurrently with the transfer of the property at C Town to her, the wife discharge or, otherwise, refinance the mortgages secured thereon into her own name.

That pending transfer to the wife, the husband shall pay as they fall due and payable council rates, water rates and property outgoings and maintain mortgage payments such that the total balance outstanding does not exceed the sum of $229,330.00 and indemnify the wife from any amount owing in excess of that sum provided always that the wife shall be entitled to deduct from the sum payable to the husband any mortgage sum in excess of $229,300.00 and any arrears of rates and utilities as at the date of settlement of the transfer to the wife.

That upon payment to him as provided, the husband shall forthwith vacate the said property and ensure that it is in good order and condition so as to permit the wife and children to reside therein.

In default of the wife complying with order (1) above and within five months from this date, the husband shall pay to the wife or as she, otherwise, may direct the sum of $333,523.00 and upon payment of such sum the husband be declared solely entitled to the property at B Street, C Town NSW being the land comprised in Folio ID ...

In default of the husband paying to the wife the sum of $333,523.00 as provided, then the wife is hereby appointed trustee for sale of the property B Street, C Town NSW being the land comprised in Folio … at the best price reasonably obtainable and for this purpose the said property shall vest in the wife as trustee and upon sale of the said property the net proceeds of sale shall be apportioned after selling costs, legal fees on sale and discharge of mortgages so as to effect an overall property division as to 75 per cent to the wife and 25 per cent to the husband by reference to the asset pool set out at [57] of these reasons for judgment.

That in default of the husband paying to the wife the sum of $333,523.00 as provided by the due date, he shall on the day following the due date vacate and remain away from the said property and on vacating leave the property in good order and condition and from such date the wife shall have sole use and occupation of the said property pending sale by her as Trustee for Sale.

Liberty to apply as to implementation or enforcement of these orders.

10.

That, otherwise, all applications relating to property be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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