FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brewer & Brewer [2022] FedCFamC2F 804
File number(s): HBC 1280 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 20 June 2022 Catchwords: FAMILY LAW – property – where final orders sought by consent at commencement of hearing – except regarding one discrete issue - hearing proceeded on discrete issue
FAMILY LAW – property – whether the Court has power pursuant to section 79 of the Family Law Act 1975 to make orders allowing a party to attend a property when there is no longer a dispute about property adjustment – where Court has power to make such an order for a legitimate purpose which is logically and reasonably connected to anything still in – finding that no such legitimate purpose for order sought on facts – application dismissed
Legislation: Family Law Act 1975 (Cth) ss 45, 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 10(1)(a), 132, 140
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rr 5.16, 10.12
Cases cited: Marriage of Hickey (2003) 30 Fam LR 355
Marriage of Suiker (1993) 117 Fam LR 236
Stanford v Stanford [2012] HCA 52
Wagstaff & Wagstaff [2018] FCCA 927
Division: Division 2 Family Law Number of paragraphs: 47 Date of hearing: 12 May 2022 Place: Hobart Counsel for the Applicant: Mr G Bradfield Solicitor for the Applicant: Tierney Law Counsel for the Respondent: Mr M Foster Solicitor for the Respondent: Murdoch Clarke ORDERS
HBC 1280 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BREWER
Applicant
AND: MS BREWER
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 JUNE 2022
BY CONSENT, THE COURT ORDERS THAT:
1.There be orders, declarations and notations made in terms of the document entitled “Consent Orders”, attached hereto and marked “A”, signed by the Applicant and the solicitor for the Respondent and dated 11 May 2022.
THE COURT ORDERS THAT:
2.Within 14 days of the date of Order herein, the Respondent Wife will facilitate the collection by the Applicant Husband’s nominee/s of the pool table situated at C Street, Suburb D in Tasmania.
“A”
CONSENT ORDERS
C Street, Suburb D (CT Volume … Folio …)(“the Acquired Property”)
1.THAT all monies payable to the parties (hereinafter referred to as “compensation”) by or on behalf of the Crown in accordance with the Land Acquisition Act 1933 (TAS) by way of compensation in relation to the acquisition of land from the parties owned by the parties being the Acquired Property, shall be equally divided between the parties, and for the purposes of this Order, the moneys already paid to either party or the assets or investments purchased from those moneys remain that party’s property/investment to the exclusion of the other party.
2.THAT all matters of and incidental to the process of negotiation, litigation, arbitration or any other aspect of the process of resolving compensation as aforesaid including the making of offers and the acceptance of offers…
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CaseChat Overview and Summary
The legal issue before the court was whether the Court had the authority to grant Mr. Brewer's application for access to the property when there was no ongoing dispute about property adjustment. The court had to determine if there was a legitimate purpose for the order that was logically and reasonably connected to matters still in dispute. The court held that the purpose of Mr. Brewer's application was not logically and reasonably connected to anything still in dispute, and thus, the application was dismissed. The court reasoned that granting the application would serve no legitimate purpose in the context of the proceedings, as the main property division issues had already been resolved by consent.
As a result of the court's decision, the final orders included the granting of consent orders for the division of compensation, the sale proceeds, and personal items, but did not include the specific access order sought by Mr. Brewer. The court did, however, order that Ms. Brewer facilitate the collection of certain items from the C Street, Suburb D Property within a specified timeframe. This decision underscores the importance of ensuring that any orders made by the Court are logically and reasonably connected to ongoing disputes in the proceedings.
Orders
Orders of the court
HBC 1280 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BREWER
Applicant
AND:
MS BREWER
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 JUNE 2022
BY CONSENT, THE COURT ORDERS THAT:
1. There be orders, declarations and notations made in terms of the document entitled “Consent Orders”, attached hereto and marked “A”, signed by the Applicant and the solicitor for the Respondent and dated 11 May 2022.
THE COURT ORDERS THAT:
2. Within 14 days of the date of Order herein, the Respondent Wife will facilitate the collection by the Applicant Husband’s nominee/s of the pool table situated at C Street, Suburb D in Tasmania.
“A”
CONSENT ORDERS
C Street, Suburb D (CT Volume … Folio …)(“the Acquired Property”)
1. THAT all monies payable to the parties (hereinafter referred to as “compensation”) by or on behalf of the Crown in accordance with the Land Acquisition Act 1933 (TAS) by way of compensation in relation to the acquisition of land from the parties owned by the parties being the Acquired Property, shall be equally divided between the parties, and for the purposes of this Order, the moneys already paid to either party or the assets or investments purchased from those moneys remain that party’s property/investment to the exclusion of the other party.
2. THAT all matters of and incidental to the process of negotiation, litigation, arbitration or any other aspect of the process of resolving compensation as aforesaid including the making of offers and the acceptance of offers shall be conducted by the parties jointly and upon such terms as they may agree from time to time and in default of agreement upon such terms as may be ordered by the court and the parties shall bear their own costs arising from the contested land compensation process.
C Street, Suburb D (CT Volume … Folio …)(“the C Street, Suburb D Property”)
3. THAT the parties do all acts and things to sign all documents to complete the current contract between the parties and E Pty Ltd dated 12 April 2022.
4. THAT the parties do all acts and things to effect the proceeds of sale to be dispersed with in accordance with the following priority:
4.1 In payment of the reasonable fees and disbursements of the Agent Mr F of G Real Estate;
4.2 In payment of the reasonable fees and disbursements of the Conveyancers acting in the sale;
4.2.1 For the purposes of Order 4.2, Tierney Law and Murdoch Clarke are engaged as conveyancers in the sale on a two-thirds/one-thirds basis with Tierney Law being the primary conveyancer;
4.3 In payment of any municipal rate adjustment;
4.4 To the Applicant Husband an amount equivalent to one half of the municipal rate adjustment paid pursuant to Order 4.3 herein; and
4.5 The balance to be divided equally between the parties.
5. THAT pending completion of the sale of the C Street, Suburb D Property:
5.1 The Respondent Wife have sole use and occupation of the C Street, Suburb D Property;
5.2 The Respondent Wife be responsible for all rates, taxes, statutory charges and other outgoings for the C Street, Suburb D Property from 1 July 2020 and insurances such as to cause the C Street, Suburb D Property to be insured at the full replacement value and indemnify and keep indemnified the Applicant Husband in relation to any claims, suits, action, demand or liability which may arise against the Applicant Husband in relation thereto; and
5.3 The Respondent Wife indemnify and keep indemnified the Applicant Husband in relation to any costs incurred to facilitate the removal of any chattels that are not the property of the Applicant Husband from the C Street, Suburb D Property.
6. THAT within 14 days of the date of Order herein, the Respondent Wife will facilitate the collection by the Applicant Husband’s nominee/s of the following items situated at the C Street, Suburb D Property:
6.1 The Applicant Husband’s mother’s engagement rings and any rings the Respondent Wife does not intend to keep;
6.2 H crockery; and
6.3 The Tea Trolley.
7. THAT for the purpose of the collection of the items pursuant to Order 6 herein, the Applicant Husband’s nominee will be Mr J and/or Mr K and/or professional removalists.
8. THAT within 7 days of the date of Order herein, the Respondent Wife shall relinquish in favour of the Applicant Husband all of her right, title and interest in the Safe subject to the following:
8.1 The Respondent Wife will retain any personal documents in the Safe pertaining to her;
8.2 The Applicant Husband will retain any personal documents in the Safe pertaining to him and that they be delivered to him within 7 days of date of Order herein;
8.3 The Safe and shall remain in the physical possession of the Respondent Wife for the duration of her life or until she no longer wishes to retain these items;
8.4 The Respondent Wife be restrained from selling, transferring, assigning, encumbering, intentionally or wilfully damaging the Safe unless as otherwise provided for in these Orders;
8.5 At such time as the Respondent Wife is deceased or no longer wishes to retain the Safe, whichever occurs first, the Safe is to be relinquished and delivered to the Applicant Husband forthwith;
General
9. THAT the Respondent Wife forthwith relinquish in favour of the Applicant Husband and, if necessary, transfer to him all of her right, title and interest in the following items of property:
9.1 The house and land situated at and known as L Street, Town M being the property described in in Certificate of Title Volume … Folio …;
9.2 The Motor Vehicle 1 registration number …;
9.3 The Motor Vehicle 2 registration number …;
9.4 The Motor Vehicle 3 registration number …;
9.5 The items retained by the Applicant Husband pursuant to Order 6;
9.6 All chattels and personal effects in the Applicant Husband’s possession; and
9.7 All savings and investments held by the Applicant Husband.
10. THAT the Applicant Husband forthwith relinquish in favour of the Respondent Wife and, if necessary, transfer to her all of his right, title and interest in the following items of property:
10.1 All chattels and personal effects in the Respondent Wife’s possession; and
10.2 All savings and investments held by the Respondent Wife.
11. THAT unless otherwise specified in this Order and except for the purposes of enforcing the payment of any money due or any act required to be done under this Order:
11.1 Each party shall be solely entitled to the exclusion of the other, to all property (including choses-in-action) in the possession of or under the control of such person as at the date of this Order;
11.2 Money standing to the credit of either party in any bank account is to become the property of the party names as the holder of that account;
11.3 Each party forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
11.4 All insurance policies are to become the sole property of the beneficiary named thereunder;
11.5 Each party be solely liable for and is to indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order;
11.6 Each party indemnifies the other for any debts of that party as at the date of and from this Order;
11.7 Neither party shall incur in the name of the other any account, debt or other liability; and
11.8 Any joint tenancy of the parties in real or personal property is hereby expressly severed.
12. THAT each party unless otherwise provided for herein shall do all acts and things including providing all requisite consent and authority and sign all requisite documentation to give effect to the Order herein.
13. THAT in the event either party refuses or neglects to sign any document necessary to implement the Order herein either wholly or in part within 14 days of request to do so and upon an affidavit being filed in the Federal Circuit and Family Court of Australia by the non-defaulting party setting out the failure then pursuant to Section 106A of the Family Law Act 1975 the Registrar of the Federal Circuit and Family Court of Australia is appointed to execute such document or documents in the name of the defaulting party and the Registrar to do all acts and things to give full force and effect to the Order herein; and the non-defaulting party be at liberty to apply for a costs Order against the defaulting party.
14. THAT all extant applications be otherwise dismissed.
15. THAT the parties pay their own costs of and incidental to these proceedings.
NOTATIONS
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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