Bowes & Javier - [2021] FamCA 131

FAMILY COURT OF AUSTRALIA

Bowes & Javier [2021] FamCA 131

File number(s):	MLC 433 of 2018
Judgment of:	HARTNETT J
Date of judgment:	17 March 2021
Catchwords:	FAMILY LAW – PROPERTY SETTLEMENT – Applications by Applicant and First Respondent for alteration of property interests – cohabitation period of approximately eleven and a half years – one child of the marriage – where Second Respondent seeks property orders on the basis of her claims in equity – Second Respondent asserted both Applicant and First Respondent responsible for repayment of debt to her under loan agreement between her as lender and Applicant as borrower secured by former matrimonial home – Second Respondent asserted both equitable mortgage and equitable charge in her favour over the former matrimonial property under loan agreement – where Applicant divested funds prior to and following final separation – assessment of contributions – just and equitable distribution. .
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) s 68L, 75(2), 79, 90AE, 90SM
Cases cited:	Bell & Nahos [2016] FamCAFC 244 Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 Mallet v Mallet (1984) 156 CLR 605 Martin & Newton [2011] FamCAFC 233 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 Whisprun Pty Ltd v Dixon [2003] HCA 48 Woollams & Woollams (2004) FLC 93-195
Number of paragraphs:	98
Date of last submission/s:	25 August 2020
Dates of hearing:	27 & 28 April 2020; 20 & 21 July 2020; and 10 & 11 August 2020.
Place:	Melbourne
Applicant:	In person
Counsel for the First Respondent:	Mr Pavone
Solicitor for the First Respondent:	Westminster Lawyers
Counsel for the Second Respondent :	Mr Raftery
Solicitor for the Second Respondent :	Somerset Ryckmans

ORDERS

MLC 433 of 2018

BETWEEN:

MR BOWES

Applicant

AND:

MS JAVIER

First Respondent

MS B BOWES

Second Respondent

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS THAT:

The Applicant pay to the Second Respondent for and on behalf of C Pty Ltd the sum of $113,374 (‘the payment’). The Applicant be solely liable for the payment to the exclusion of the First Respondent and the Applicant indemnify the First Respondent against any liability howsoever arising in relation to the payment and his obligation pursuant to this order.
The entirety of the net proceeds of sale of the property known as and situate at D Street, Suburb E in the State of Victoria (‘the Suburb E property’) as held on behalf of the parties in the trust account of the First Respondent’s solicitors be forthwith paid out to the First Respondent.
Each of the Applicant and First Respondent retain those monies already advanced to them by way of partial property settlement.
The First Respondent retain the proceeds of sale of the Motor Vehicle 1.
The Applicant retain those monies held in bank accounts in his name and/or the name of any of his associated corporate entities.

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 Bowes & Javier

Details

AGLC: Bowes & Javier [2021] FamCA 131
Case: [2021] FamCA 131
Decision Date: 17 March 2021

CaseChat Overview and Summary

This matter concerned applications by Mr Bowes (the Applicant) and Ms Javier (the First Respondent) for the alteration of property interests following a cohabitation of approximately eleven and a half years and the birth of one child. Ms B Bowes (the Second Respondent), the Applicant's sister, also sought property orders, asserting claims in equity against the former matrimonial home. The Second Respondent alleged that both the Applicant and the First Respondent were responsible for repaying a debt owed to her under a loan agreement where she was the lender and the Applicant was the borrower, a loan she claimed was secured by the former matrimonial home.

The court was required to determine the extent of the parties' respective contributions to the acquisition, conservation, and improvement of their property, and to make such orders as were just and equitable. Central to the dispute was the Second Respondent's assertion of an equitable mortgage and an equitable charge over the former matrimonial property, arising from the loan agreement with the Applicant. The court also had to consider the Applicant's divestment of funds both prior to and following the final separation of the parties.

Hartnett J found that the Applicant was solely liable for the repayment of the debt to the Second Respondent, ordering the Applicant to pay the sum of $113,374 to the Second Respondent for and on behalf of C Pty Ltd, and to indemnify the First Respondent against any liability arising from this payment. The entirety of the net proceeds of sale of the former matrimonial home, the Suburb E property, were ordered to be paid to the First Respondent. Each party was to retain monies already advanced to them by way of partial property settlement, and the First Respondent was to retain the proceeds of sale of a motor vehicle. The Applicant was to retain various assets and be solely liable for associated liabilities, including funds allegedly owed to his sister and other entities. The First Respondent was to retain her bank accounts and be solely liable for liabilities in her name. Each party was otherwise entitled to property in their possession and to indemnify the other against liabilities encumbering property to which they were entitled under the orders, with joint tenancies expressly severed. The Applicant was also ordered to pay costs to the First Respondent.

Orders

Orders of the court

MLC 433 of 2018

BETWEEN:

MR BOWES

Applicant

AND:

MS JAVIER

First Respondent

MS B BOWES

Second Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

17 MARCH 2021

THE COURT ORDERS THAT:

The Applicant pay to the Second Respondent for and on behalf of C Pty Ltd the sum of $113,374 (‘the payment’). The Applicant be solely liable for the payment to the exclusion of the First Respondent and the Applicant indemnify the First Respondent against any liability howsoever arising in relation to the payment and his obligation pursuant to this order.

The entirety of the net proceeds of sale of the property known as and situate at D Street, Suburb E in the State of Victoria (‘the Suburb E property’) as held on behalf of the parties in the trust account of the First Respondent’s solicitors be forthwith paid out to the First Respondent.

Each of the Applicant and First Respondent retain those monies already advanced to them by way of partial property settlement.

The First Respondent retain the proceeds of sale of the Motor Vehicle 1.

The Applicant retain those monies held in bank accounts in his name and/or the name of any of his associated corporate entities.

The Applicant retain to the exclusion of the First Respondent and indemnify her against all liability howsoever arising in relation to:-

(a) his interest in F Pty Ltd, and any liabilities arising in respect of the sale of the business or the property at G Street Suburb H;

(b) his interest in J Pty Ltd ATF K Trust;

(d) his Motor Vehicle 2;

(e) all liabilities in his name including but not limited to credit card debts;

(f) any funds allegedly owed by him and/or the parties to any persons including but not limited to his sister Ms B Bowes, C Pty Ltd ATF C Trust and/or Mr N Bowes; and

(g) his superannuation entitlements.

The First Respondent retain to the exclusion of the Applicant and indemnify him against all liability howsoever arising in relation to:-

(a) the balance of her bank accounts;

(b) all liabilities in her name including but not limited to credit card accounts; and

Save for the purposes of enforcing these orders:-

(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;

(b) monies standing to the credit of the each party remain the sole property of that party;

(d) each party forego any claim he or she may have to any superannuation benefits belonging to or earned by the other;

(e) each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

The Applicant pay to the First Respondent the sum of $6,500 in costs together with the sum of $2,000 in respect of his reimbursement of the First Respondent for her payment to Mr O, the family report writer. Such sums are included in the monies to be paid to the First Respondent pursuant to order 2 herein.

10.

Otherwise, all extant applications are 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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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