Caine & Seddon (No 2) - [2022] FedCFamC2F 1286

Federal Circuit and Family Court of Australia
(DIVISION 2)
Caine & Seddon (No 2) [2022] FedCFamC2F 1286

File number(s): ADC 2127 of 2021

Judgment of: JUDGE DICKSON

Date of judgment: 23 September 2022

Catchwords: FAMILY LAW – Property – undefended final hearing –de facto relationship – small asset pool – where respondent has failed to engage in proceedings – where Court is satisfied that respondent is on notice of these proceedings – where applicant is appointed as sole trustee for sale of the former home – where respondent entered into a Tenancy Agreement over the former home without the applicant’s knowledge or consent – where applicant is granted sole use and occupancy of the said home – significant post separation contributions by the applicant – where adjustment made for applicant’s legal costs incurred throughout litigation - future needs – where applicant has sole care of the children – just and equitable for there to be a 80/20% split in the applicant’s favour of the net non-superannuation assets – applicant to retain her superannuation – just and equitable

Legislation:
Family Law Act 1975 (Cth) Pt VIIIAB, ss 90SF, 90SM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.27, 11.56

Cases cited:
Clauson & Clauson [1995] FamCA 10, (1995) FLC 92-595, 18 Fam LR 693

Jabour & Jabour [2019] FamCAFC 78

Ragusa & Ragusa [2021] FedCFamC2F 470

Stanford & Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 79

Date of hearing: 12 September 2022

Place: Adelaide

Counsel for the Applicant: Ms Ross

Solicitor for the Applicant: Mildwaters Lawyers

The Respondent: did not appear
ORDERS

ADC 2127 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CAINE

Applicant

AND:
MR SEDDON

Respondent

order made by:

JUDGE DICKSON

DATE OF ORDER:

23 SEPTEMBER 2022

UPON NOTING:
A.Pursuant to rule 11.59(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the Court is satisfied that the tenant of the B Street, Town C property being Ms G has received notice of the terms of the order for enforcement.

THE COURT ORDERS THAT:
1.As and by way of final orders for property settlement:
(a)the Applicant is hereby appointed as the sole agent on behalf of the parties for the sale of the property of the real estate known as B Street, Town C (“the B Street, Town C property”) and for that purpose the following shall apply: -
(i)the Applicant is hereby authorised to do all such things and sign all such documents necessary to list and sell the B Street, Town C property and it shall be listed for sale by private treaty with D Real Estate in Town E or with such other agent as the Applicant appoints (“the real estate agent”);
(ii)the list price of the B Street, Town C property shall be such sum as is recommended by the real estate agent as an appropriate list price;
(iii)the sale price of the B…

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 Caine & Seddon (No 2)

Details

AGLC: Caine & Seddon (No 2) [2022] FedCFamC2F 1286
Case: [2022] FedCFamC2F 1286
Decision Date

CaseChat Overview and Summary

In the matter of Caine & Seddon (No 2), Judge Dickson of the Federal Circuit and Family Court of Australia (Division 2) made an order for property settlement between the parties, Ms Caine and Mr Seddon, following the breakdown of their de facto relationship. The Court was required to determine the weight to be attached to the parties’ financial and non-financial contributions, their future needs, and a percentage division of the gross asset pool. Additionally, the Court had to decide whether a superannuation splitting order should be made in favour of the respondent.

Judge Dickson found that the respondent had failed to engage in the proceedings, despite being adequately notified of the proceedings and given ample opportunity to participate. As a result, the Court proceeded with the undefended final hearing and made orders that were just and equitable according to law. The Court considered the length of the relationship, the parties' respective contributions, and the section 90SF factors when determining the division of the net non-superannuation assets. The Court also took into account the applicant's significant post-separation contributions, her future needs, and the legal costs incurred due to the respondent's failure to engage in the proceedings.

Based on the findings, the Court ordered an 80/20% split in the applicant's favour of the net non-superannuation assets. The applicant was appointed as the sole trustee for the sale of the former home, and the respondent was ordered to vacate the property. The applicant was granted sole use and occupancy of the property pending sale, and each party was to indemnify the other for all liabilities in their sole name. Additionally, the Court exercised its discretion to make an order for a warrant for possession of the real property in the event that the tenant did not vacate the property as directed.

In conclusion, the Court made the orders considering the unique circumstances of the case, including the small asset pool, the length of the relationship, and the parties' respective contributions and future needs. The Court found the proposed orders to be just and equitable in the circumstances, taking into account the legal principles and decisions cited in the judgment.

Orders