FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Blayne & Blayne [2025] FedCFamC2F 413
File number(s): SYC 5796 of 2022 Judgment of: JUDGE COPE Date of judgment: 31 March 2025 Catchwords: FAMILY LAW – Matrimonial property division – where relationship of over 30 years – where two adult children – where both parties’ families made significant financial and /or non-financial contributions – where extent of those contributions in dispute - where arguments of resulting trust and presumption of advancement made – where each party sought to exclude assets from the pool available for distribution – where the applicant relied on a Kennon argument – where dispute as to whether real property should be sold or retained by the respondent – where dispute as to how CGT should be addressed – where dispute as to value of assets in the pool – where add backs sought - where two pool approach adopted – where real property to be sold – where Kennon argument successful Legislation: Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth) ss 4AB, 75, 79, 106A
AIJA National Domestic and Family Violence Bench Book
Cases cited: BCI Finances Pty Ltd (in liq) v Binetter (No 4) (2016) 348 ALR 227
Benson & Drury (2020) FLC 93-998
Bevan & Bevan (2013) FLC 93-545
Black & Kellner (1992) FLC 92-287
Bloch v Bloch (1981) 180 CLR 390
Bosanac v Commissioner of Taxation (2022) FLC 94-107
C & C [1998] FamCA 143
Cahill & Cahill (2006) FLC 93-253
Calverley v Green (1984) 155 CLR 242
Dickons v Dickons (2012) 50 FamLR 244
Hickey & Hickey (2003) FLC 93-143
Jones v Dunkel (1959) 101 CLR 298
Kannis & Kannis (2002) 172 FLR 464
Kennon v Kennon [1997] FamCA 27
M & M [1998] FamCA 42
Mallet v Mallet (1984) 156 CLR 605
Mayhew & Fairweather (2022) 64 Fam LR 633
Norbis v Norbis (1986) 161 CLR 513;
Omacini & Omacini (2005) FLC 93-218
Pickford & Pickford [2024] FedCFamC1A 249
RPS v The Queen [2000] 199 CLR 620
Stanford v Stanford (2012) FLC 93-518
Sweet & Sweet [2022] FedCFamC2F 676
Trevi & Trevi (2018) FLC 93-858
Wallis & Manning (2017) FLC 93-759
Weir & Weir (1993) FLC 92-338
Yang & Gian and Ors [2014] FamCA 934
Division: Division 2 Family Law Number of paragraphs: 226 Date of last submission/s: 14 August 2024 Date of hearing: 12, 13, 14 August 2024 Place: Sydney Counsel for the Applicant: Mr Petrie Solicitor for the Applicant: Watts McCray Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: Diamond Conway Lawyers ORDERS
SYC 5796 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BLAYNE
Applicant
AND: MR BLAYNE
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
31 MARCH 2025
THE COURT ORDERS THAT:
NOTING THAT the court has taken a two pool approach with the City C property to be separate from the remaining asset pool, and with…
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CaseChat Overview and Summary
The court was required to determine the appropriate pool of assets subject to division, the respective contributions of both parties and their families, the application of resulting trusts and presumptions of advancement, and the manner in which the real property should be handled. Additionally, the court had to address the appropriate method for calculating capital gains tax and the value of the assets. The applicant relied on a Kennon argument to exclude certain assets from the pool. The court adopted a two-pool approach, treating the City C property separately from the remaining assets and including the Suburb E properties in the second pool. The court found in favour of the applicant's Kennon argument and ruled that the City C property should be sold.
The court ordered that the Suburb G property be sold by public auction within fourteen days, with the proceeds to be used to cover expenses and legal fees before being disbursed to the parties in a 52:48 ratio in favour of the wife. The City C property was to be excluded from the asset pool and retained by the wife, while the Suburb E properties formed part of the second asset pool, which was divided between the parties in a 52:48 ratio in favour of the wife. This outcome reflected the court's determination of the respective contributions and the successful application of the Kennon argument by the applicant.
Orders
Orders of the court
SYC 5796 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BLAYNE
Applicant
AND:
MR BLAYNE
Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
31 MARCH 2025
THE COURT ORDERS THAT:
NOTING THAT the court has taken a two pool approach with the City C property to be separate from the remaining asset pool, and with the Suburb E properties to form part of the second asset pool
AND FURTHER NOTING THAT each asset pool is as set out in the annexure to this order marked with the letter “A”
AND FURTHER NOTING THAT the wife is to retain the entirety of the asset pool 1 consisting of the City C Property and Asset Pool 2 be divided between the parties 52:48 in the wife’s favour
1. That within fourteen (14) days of the date of these Orders each party shall do all things necessary to cause the property situated at and known as F Street, Suburb G in the State of New South Wales being the whole of the land contained in Folio identifier … (the “Suburb G property”) to be listed for sale and sold by public auction, unless otherwise agreed, at the earliest possible date and for the proceeds of sale to be disbursed as follows and in that priority:
(a) In payment of agent’s commission, marketing, advertising and auction expenses and legal expenses of the sale;
(b) In payment of the balance then remaining to the conveyancing solicitor’s trust account or such other account agreed to by the parties in writing.
2.
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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