Canton & Canton - [2023] FedCFamC2F 836

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Canton & Canton [2023] FedCFamC2F 836

File number(s): NCC 2375 of 2022

Judgment of: JUDGE BETTS

Date of judgment: 16 June 2023

Catchwords: FAMILY LAW – Property – undefended final hearing – where the husband has failed to file any material or provide any financial disclosure during the proceedings – where the wife’s evidence is unchallenged – where the wife seeks the former matrimonial home at Town B go back into her possession – where the Court considers that a 60%/40% division in the Wife’s favour is a just and equitable outcome – indemnity costs order made – just and equitable.

Legislation: Family Law Act1975 (Cth), Pt VIII

Cases cited:
Frederick & Frederick [2019] FamCAFC 87

Kennon & Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC 91-555

Division: Division 2 Family Law

Number of paragraphs: 119

Date of last submission/s: 15 June 2023

Date of hearing: 15 June 2023

Place: Newcastle

Counsel for the Applicant: Ms Van Oosterom

Solicitors for the Applicant: Braye Cragg Solicitors

Solicitors for the Respondent: No appearance – Self-Represented

ORDERS

NCC 2375 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CANTON

Applicant

AND:
MR CANTON

Respondent

order made by:

JUDGE BETTS

DATE OF ORDER:

16 JUNE 2023

THE COURT ORDERS THAT:
1.The proceedings be determined on an undefended final basis today.
2.That by no later than 15 September 2023, the Wife shall pay to the Commonwealth Bank of Australia credit account of the joint mortgage, account number …, the sum of $255,000.00 (the settlement sum) or such amount as required to discharge the totality of the mortgage as at the date of these Orders in exchange for the Husband's interest in the property at C Street, Town B NSW, portfolio identifier … (the Town B property).
3.Contemporaneously with and in consideration of the payment pursuant to Order 2, the Husband shall do all acts and things so as to transfer to the Wife his interest in the Town B property free of any encumbrance.

3A. Pending payment of the settlement sum in accordance with Order 2:
(a)The Husband is entitled to sole use and occupation of the Town B property;
(b)The Husband is to meet all minimum mortgage repayments and all rates, insurances and other property outgoings for the Town B property during his occupation;
(c)The Husband is to keep the property in good order and repair, fair wear and tear excepted;
(d)Within fourteen (14) days at a date and time to be advised by the Wife's solicitor in writing to the husband, the Husband is to allow the Wife or an agent appointed by her to attend the Town B property to inspect the property and to take photographs on the property. The Husband is restrained from being present during such inspection, although the Husband may engage an agent to attend on his behalf; and
(e)The Husband is restrained from redrawing any money from the Commonwealth Bank of Australia…

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 Canton & Canton

Details

AGLC: Canton & Canton [2023] FedCFamC2F 836
Case: [2023] FedCFamC2F 836
Decision Date

CaseChat Overview and Summary

The case Canton & Canton [2023] FedCFamC2F 836 involved property settlement proceedings between the applicant, Ms Canton, and the respondent, Mr Canton. The wife sought a property settlement following the breakdown of their marriage, which had lasted 14 years from 2003 until 2017. The wife's claims included the former matrimonial home at Town B, various assets, and financial contributions. The husband, who had been uncooperative throughout the proceedings, did not file any material or provide financial disclosure. The court was required to decide whether it was just and equitable to make a property settlement order, assess the contributions of each party, and consider any relevant future factors under section 75(2) of the Family Law Act 1975 (Cth).

The court found that it was just and equitable to make a property settlement order given the length of the relationship and the intertwined financial and property interests of the parties. The court assessed the contributions of each party, taking into account the wife's significant financial contributions and homemaking efforts, as well as the husband's initial property contribution. The court considered the husband's financial abuse and coercive control over the wife but did not find it warranted a Kennon adjustment. The court also considered the husband's failure to participate in the proceedings and make full disclosure. The court determined a 60/40 division in the wife's favour to be a just and equitable outcome. The wife was granted possession of the Town B property in exchange for paying the mortgage, and the husband was ordered to vacate the property within a specified timeframe.

The court ordered the husband to pay the wife's costs on an indemnity basis, fixed at $15,000, due to his obstructive conduct throughout the proceedings. The court also made various orders to protect the property and ensure the smooth transition of possession.

In summary, the court made comprehensive orders for the division of property, possession of the former matrimonial home, and costs, finding a 60/40 division in the wife's favour to be just and equitable, and ordering the husband to pay the wife's costs on an indemnity basis.

Orders