BONFILS & BABIN - [2020] FCCA 34

FEDERAL CIRCUIT COURT OF AUSTRALIA

BONFILS & BABIN

[2020] FCCA 34

Catchwords:
FAMILY LAW – Property – de facto relationship – mature couple – short relationship – de facto husband provides almost entire financial contributions – wife makes small financial contribution – wife makes homemaking contribution – husband’s net assets exceed $4.5 million – wife has negative net equity – wife may have small undisclosed financial resource – husband opposes any property adjustment or submits no more than 4% – wife submits 10% of husband’s net assets – 6% property adjustment appropriate, just and equitable.

Legislation:

Family Law Act 1975 (Cth), Part VIIIAB, ss.4AA, 90MT(1)(a), 90MT(4), 90SM, 90SF
Family Law (Superannuation) Regulations 2001 (Cth), Part 6
Evidence Act 1995 (Cth), s.50

Cases cited:

FO v HAF [2007] 2 Qd R 138
Black & Kellner (1992) 106 FLR 154
Weir & Weir (1992) 110 FLR 403
Stanford v Stanford (2012) 247 CLR 108
Quinn v Quinn (1979) 37 FLR 168
Cook & Langford (2008) FLC 93-374

Applicant:

MS BONFILS

Respondent:

MR BABIN

File Number:

WOC 1046 of 2014

Judgment of:

Judge B Smith

Hearing dates:

22, 23 and 25 October 2018

Date of Last Submission:

25 October 2018

Delivered at:

Sydney

Delivered on:

13 January 2020

REPRESENTATION

Counsel for the applicant:

Mr Rosic

Solicitors for the applicant:

Kells the Lawyers

Counsel for the respondent:

Mr Schonell

Solicitors for the respondent:

Diamond Conway Lawyers

ORDERS

That within forty-two (42) days the respondent pay to the applicant the sum of $275,000 by way of lump sum property settlement.
In default of the respondent’s compliance with the payment referred to in order 1 above the parties shall, within a further fourteen (14) days of the forty-two (42) days specified in order 1, do all acts and things and sign all documents necessary to effect the sale of the property known as and situate at A Street, Town B (“the property”) in the State of New South Wales and more particularly described in Certificate of Title Folio Identifier …83 and for that purpose the following shall apply:
(a)that the parties list the property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement between the parties within seven (7) days with such agent as the President of the Real Estate Institute of New South Wales nominate (“the agent”);
(b)that the parties appoint such solicitor on the conveyance as the parties may agree to appoint and in default of agreement between the parties within seven (7) days with such solicitor as the President of the NSW Law Society or their delegate may Real Estate Institute of New South Wales may nominate. (“the solicitor”);
(c)the sale price of the property is to be mutually agreed upon by the parties or, in the absence of agreement between the parties within seven (7) days at the price nominated as fair market value appointed by the President of the New South Wales Division of the Australian Institute of Valuers and…

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 BONFILS & BABIN

Details

AGLC: BONFILS & BABIN [2020] FCCA 34
Case: [2020] FCCA 34
Decision Date: 13 January 2020

CaseChat Overview and Summary

In the matter of Bonfils & Babin, Judge B Smith of the Federal Circuit and Family Court of Australia considered a property settlement dispute between a de facto couple. The applicant wife sought a property adjustment from the respondent husband, whose net assets exceeded $4.5 million. The wife had minimal financial contributions and negative net equity, though she did contribute to homemaking during the short-term relationship. The husband opposed any adjustment or submitted for no more than 4%, while the wife sought 10% of his net assets.

The court was required to determine the appropriate, just, and equitable property adjustment, if any, to be made between the parties. This involved assessing the contributions of each party, both financial and non-financial, and considering the overall circumstances of the de facto relationship, including its short duration and the significant disparity in the parties' financial positions.

Judge B Smith reasoned that a 6% property adjustment was appropriate, just, and equitable. This decision likely took into account the wife's homemaking contributions and her significantly disadvantaged financial position relative to the husband, despite the short duration of the relationship and the husband's substantial financial contributions. The court ordered the respondent to pay the applicant $275,000 within 42 days. In default of this payment, the parties were to sell their jointly owned property, with detailed provisions for the sale process, including agent appointment, valuation, and distribution of proceeds. Further alternative orders were made concerning the respondent's superannuation interests in the event of non-compliance with the primary payment and property sale orders.

Orders

Orders of the court

That within forty-two (42) days the respondent pay to the applicant the sum of $275,000 by way of lump sum property settlement.

In default of the respondent’s compliance with the payment referred to in order 1 above the parties shall, within a further fourteen (14) days of the forty-two (42) days specified in order 1, do all acts and things and sign all documents necessary to effect the sale of the property known as and situate at A Street, Town B (“the property”) in the State of New South Wales and more particularly described in Certificate of Title Folio Identifier …83 and for that purpose the following shall apply:

(a) that the parties list the property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement between the parties within seven (7) days with such agent as the President of the Real Estate Institute of New South Wales nominate (“the agent”);

(b) that the parties appoint such solicitor on the conveyance as the parties may agree to appoint and in default of agreement between the parties within seven (7) days with such solicitor as the President of the NSW Law Society or their delegate may Real Estate Institute of New South Wales may nominate. (“the solicitor”);

(c) the sale price of the property is to be mutually agreed upon by the parties or, in the absence of agreement between the parties within seven (7) days at the price nominated as fair market value appointed by the President of the New South Wales Division of the Australian Institute of Valuers and Land Administrators (Incorporated) (“the valuer”);

(d) the respondent is to cooperate in every manner with the agent and the solicitor and the valuer including, but not limited to:

(i) making keys available to the agent;

(ii) allowing for inspections of the property at all reasonable times requested by the agent;

(iii) ensuring the property including the grounds are in neat and clean condition at the time of inspection by the agent and prospective purchasers; and

(iv) signing all documents requested in relation to listing the sale of the property;

(e) neither party may confer with any agent without the consent of the other party in relation to any right to any sole or exclusive agency in respect of the property or to any commissions;

(f) the respondent provide vacant possession of the property not less than seven (7) days prior to settlement of the sale of the property and on, or prior to, vacation:

(i) conduct a general clean the property and ensure it is left in a clean and tidy state; and

(ii) remove all items of furniture and effects and personal belongings; and

(g) the proceeds of the sale of the property be paid in the following manner and priority:

(i) in payment of agents’ commissions, advertising expense and legal expenses of the sale;

(ii) in payment of costs incurred if any in relation to the determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.

(iii) in payment for such amount as is required to be paid to effect any discharge of the mortgage/s secured against the property;

(iv) in payment of any amount owing to the applicant pursuant to order 1 together with interest calculated from the date of default and in accordance with the Family Law Rules 2004; and

(v) in payment of any balance then remaining to the respondent.

That in the event a purchaser for the property is not found within three (3) months of the date the property is listed for sale pursuant to order 2 or as otherwise agreed, the parties shall do all acts and things and execute all such deeds, documents and instruments as may be necessary to list the property for sale by public auction at an agreed price and for that purpose the following shall apply:

(a) the applicant shall be and is hereby appointed as trustee for sale of the property to sell the property in accordance with these orders on behalf of the parties jointly, if and when required;

(b) in the event that the parties are unable to agree upon an auctioneer, the auctioneer shall be nominated by the Real Estate Agent marketing the property;

(c) such an auction take place within six weeks from the date of placing the property for sale by public auction or as soon as practicable thereafter;

(d) the reserve price for such auction be as agreed between the parties or failing agreement for more than seven (7) days, determined by the selling agent;

(e) the parties pay all auction expenses as requested by the selling agent as and when they fall due;

(f) the respondent shall do all such acts and things as may be necessary or recommended by the selling agent to properly present the property for sale and to make the property available for inspection by prospective purchasers;

(g) the respondent shall attend the auction and, if necessary, negotiate with the highest bidder at auction if the reserve price is not reached;

(h) upon completion of the sale by the auction the proceeds of sale are to be distributed in accordance with order 2(g) above; and

(i) the respondent provide vacant possession of the property not less than seven (7) days prior to settlement of the sale of the property and on or prior to vacation;

(i) conduct a general clean the property and ensure it is left in a clean and tidy state; and

(ii) remove all items of furniture and effects and personal belongings.

That in the event that the auction referred to herein is unsuccessful, the property is thereafter to be listed for subsequent auctions in accordance with the provisions of the above order and that upon completion of the sale by any subsequent auction the proceeds of sale are to be distributed in accordance with the above order.

In default of the respondent's compliance with the payment referred to in order 1 above and the sale of the property in orders 2-4 above the Court orders in the alternative:

(a) in accordance with s.90MT(1)(a) of the Family Law Act 1975, whenever a split-able payment becomes payable to the respondent from his interest in the C Pty Ltd self-managed known as C Pty Ltd Fund (“the fund”), the applicant is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using base amount of $275,000 and there is a corresponding reduction in the entitlement the respondent would have had but for these orders;

(b) That:

(i) the Court allocates, as required by s.90MT(4) of the Family Law Act 1975, a base amount of $275,000 to the applicant out of the respondent's interest in the Fund;

(ii) in accordance with s.90MT(1)(a) of the Family Law Act 1975, the Court:

A. creates an entitlement on the part of the applicant to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

B. makes a corresponding reduction in the entitlement to the respondent, or such other person to whom a split-able payment may be made, would have had in the fund, but for these orders; and

(iii) whenever the trustee of the fund makes a split-able payment out of the respondent’s interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in order 5(ii)(B) herein in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and

(c) these orders have effect from the operative time and the operative time is four (4) business days after the service of these orders of the trustee.

That as between the applicant and respondent and subject to the above orders the applicant and respondent shall each respectively retain all interest and entitlements to all of their other property and liabilities.

Any party who seeks to be heard on costs is to contact Chambers with prior notice to the other party within twenty-eight (28) days of these orders to have the matter re-listed for hearing on the question of costs.

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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