BURKETT & NOVACK - [2019] FCCA 1362

FEDERAL CIRCUIT COURT OF AUSTRALIA

BURKETT & NOVACK

[2019] FCCA 1362

Catchwords:
FAMILY LAW – Property – dissipation of assets – mutual allegations of non- disclosure.

PRACTICE AND PROCEDURE – Use of summaries – communication with chambers.

Legislation:

Evidence Act 1995 (Cth) ss.48(4), 50, 50(2)
Family Law Act 1975 (Cth) ss.44(5), 44(6), 72, 74, 74(1), 75(2), 90SB, 90SB(a), 90SD, 90SE, 90SF, 90SF(3), 90SF(3)(r), 90SL, 90SM, 90SM(1), 90SM(3), 90SM(4), 106A, 117

Cases cited:

Bevan v Bevan [2013] FamCAFC 116
Chang & Su [2002] FamCA156
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
In the Marriage of Bevan 19 Fam LR 35
In the Marriage of Soblusky (1976) FLC 90-124
Kennon & Kennon [1997] FamCA 27
Slattery and Slattery (1976) FLC 90 – 110
Stanford & Stanford (2012) 247 CLR 108
Watson & Ling (2013) 49 Fam LR 303

Applicant:

MS BURKETT

Respondent:

MR NOVACK

File Number:

MLC 8541 of 2017

Judgment of:

Judge Harland

Hearing dates:

11 and 12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Melbourne

Delivered on:

23 May 2019

REPRESENTATION

Counsel for the Applicant:

Ms Colla

Solicitors for the Applicant:

Barbayannis Lawyers

The Respondent appearing in person

ORDERS

That within 21 days the parties do all acts and things and sign all documents necessary to cause the entirety of the funds held in the account of Business A Pty Ltd (“Business A”) with the Westpac Bank in a Westpac Business One account, BSB … account number …, in the approximate sum of $134,627.00, be paid to Barbayannis Lawyers on behalf of the wife.
To aid compliance with order 1 the wife be at liberty to serve a sealed copy of these orders upon the Proper Officer of the Westpac Banking Corporation.
That pursuant to s.90SL of the Family Law Act1975 (Cth) that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control in which either has an interest which are not otherwise dealt with in these orders.
The Respondent indemnify and keep the Applicant indemnified with respect to all debts in his name or jointly with another person.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s.106A of the Family Law Act 1975 (Cth) that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter…

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 BURKETT & NOVACK

Details

AGLC: BURKETT & NOVACK [2019] FCCA 1362
Case: [2019] FCCA 1362
Decision Date: 23 May 2019

CaseChat Overview and Summary

In the matter of Burkett & Novack, heard by Judge Harland, the dispute concerned property settlement and maintenance between a husband and wife in a de facto relationship. The wife sought maintenance and costs, while both parties made mutual allegations of non-disclosure regarding assets.

The court was required to determine the wife's application for maintenance, considering the threshold requirements under section 90SF of the *Family Law Act 1975* (Cth), and to address the wife's application for costs. Additionally, the court had to make orders regarding the division of property and the indemnification of debts.

Judge Harland dismissed the wife's maintenance application, finding that while her financial circumstances were modest and the husband had a higher income, she had not adequately established that she was unable to support herself by reason of her age, health, capacity for employment, or other adequate reason, as required by section 90SF(1). The court noted that maintenance is not awarded as punishment or restitution and that misconduct is irrelevant to such claims. Regarding costs, the court ordered that written submissions be filed by both parties before a determination was made. The court also made orders for the division of certain assets, including funds held in a business account, personalty, and superannuation, and directed the Registrar to execute documents if necessary to give effect to the orders. The respondent husband was ordered to indemnify the applicant wife for all debts in his name or jointly held.

Orders

Orders of the court

That within 21 days the parties do all acts and things and sign all documents necessary to cause the entirety of the funds held in the account of Business A Pty Ltd (“Business A”) with the Westpac Bank in a Westpac Business One account, BSB … account number …, in the approximate sum of $134,627.00, be paid to Barbayannis Lawyers on behalf of the wife.

To aid compliance with order 1 the wife be at liberty to serve a sealed copy of these orders upon the Proper Officer of the Westpac Banking Corporation.

That pursuant to s.90SL of the Family Law Act 1975 (Cth) that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:

(a) all items of furniture, furnishings, personalty, chattels and jewellery;

(b) all monies (whether held in cash or in deposit with any financial institution);

(d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;

in the possession, custody or control in which either has an interest which are not otherwise dealt with in these orders.

The Respondent indemnify and keep the Applicant indemnified with respect to all debts in his name or jointly with another person.

That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s.106A of the Family Law Act 1975 (Cth) that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

That within 28 days the Applicant file written submissions in support of her costs application and any minute of orders sought with respect to the Respondent’s superannuation and Business A Pty Ltd.

That within 28 days thereafter, the Respondent file written submissions in response to the Applicant’s cost application and any minute of orders sought that the parties have liberty to apply with respect to the implementation of these orders.

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

Section 90SF sets out the matters the court must consider with respect to maintenance. Section 90SF(1) states:S.90SF Matters to be taken into consideration in relation to maintenance(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:(a) only to the extent that the first-mentioned party is reasonably able to do so; and Section 90SF(1) largely mirrors s74(1) The court may only take into account the matters listed in s90SF(3). Section 90SF(1) sets out a threshold which the applicant’s maintenance has the onus of meeting. As acknowledged by the wife’s Counsel in closing submissions, maintenance is not ordered as a form of punishment or restitution[6]. Misconduct is not relevant to maintenance.[7][6] See Slattery and Slattery (1976) FLC 90 – 110[7] See In the Marriage of Soblusky (1976) FLC 90-124 The husband has a greater income than the wife. The wife’s financial position is modest. She is in a worse financial position now than she was at the beginning of the relationship. There is a paucity of evidence in the wife’s affidavit about her need for maintenance. In her trial affidavit she refers to the husband “clearly acknowledging her health issues” in his 2017 affidavit and acknowledging that she has had difficulties with employment in the past few years. In her trial affidavit she says this is because of the husband’s treatment of her and says that he was physically and verbally abusive. She does not produce any medical evidence. She does not refer to any attempts to seek other employment. I accept that the wife’s financial circumstances are modest. The husband has a higher income but the wife must get over the threshold requirements and establish that she is unable to support herself adequately by reasons of her age, health, capacity for employment or other adequate reason and this simply has not been addressed adequately in her affidavit. I dismiss her maintenance application. The applicant seeks costs. Applications for costs are dealt with pursuant to s.117 of the Family Law Act. I will order that the applicant file written submissions in support of her costs application within 28 days and that the husband file written submissions in response 28 days thereafter. I will thereafter determine the costs application in Chambers unless either party advises Chambers that they wish to have the costs application dealt with by way of oral submissions in open court. Aspects of the preparation and presentation of this matter have been unsatisfactory. In their trial affidavits, both parties refer to their previous affidavits and sought to rely on them in breach of the trial directions. Both parties were legally represented when the affidavits were prepared, however the husband appeared for himself at the trial and in those circumstances I allowed the parties to do so.