Carlisle & Neely - [2022] FedCFamC2F 1539

Federal Circuit and Family Court of Australia
(DIVISION 2)
Carlisle & Neely [2022] FedCFamC2F 1539

File number(s): MLC 6289 of 2021

Judgment of: JUDGE HARLAND

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW - property - short relationship - length of relationship disputed - significant initial contributions - family violence - whether or not there should be an adjustment

Legislation: Family Law Act 1975 (Cth) ss 4AB, 79(2),(4), 90SF(3)(a), (3)(k), 90SM(1),(3),(4), s90SF(3),(3)(a),(3)(k)

Cases cited:
Aleksovski v Aleksovski (1996) FLC 92-705

Benson & Drury [2020] FamCAFC 303

Bevan and Bevan [2013] FamCAFC 116

Dicksons v Dickons [2012] FamCAFC 154

Froth v Froth [2007] FamCA 1608

Robb v Robb (1995) FLC 92-555

Stanford & Stanford [2012] FamCAFC 1

Woodcock and Woodcock (1997) FLC 92-739

Division: Division 2 Family Law

Number of paragraphs: 122

Date of hearing: 17-19 October 2022

Place: Melbourne

Counsel for the Applicant: Mr Stanley

Solicitor for the Applicant: Freeman Family Law

Solicitor for the Respondent: Mr Robertson of Ian Robertson Legal
ORDERS

MLC 6289 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CARLISLE

Applicant

AND:
MR NEELY

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

11 November 2022

THE COURT ORDERS THAT:
1.Within 60 days the Respondent will do all acts and things and sign all documents necessary to transfer to the Applicant at the expense of the Applicant all of his right, title and interest in the property at B Street, Suburb C more particularly described in Certificate of Title Volume … Folio … (“the transfer”).
2.Contemporaneously with the transfer the Applicant discharge or refinance the mortgage registered number … to Company D (“the mortgage”) to remove the Respondent as a liable borrower and indemnify the Respondent against all payments and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
3.In default of the discharge or refinance of the mortgage, the Applicant shall forthwith take all necessary steps and execute all necessary documents to cause the property at B Street, Suburb C, to be placed on the market for sale and sold by auction (‘the sale’).
4.At settlement of the sale, the proceeds of the said sale be disbursed as follows:
(a)First, payment of the agent’s commission and advertising and legal expenses of the sale;
(b)Second, payment of the money due and owing to the mortgagee; and
(c)Third, such that the Applicant receives 100% of any part of the proceeds of the sale which remains outstanding.

5.Contemporaneously with the transfer the Respondent discharge the Personal Loan registered number … to the National Australia Bank (“the Personal Loan”) and indemnify the Applicant against all payments and liabilities pursuant to the Personal Loan.
6.The Applicant otherwise retain the balance of any funds in any bank accounts in her name, Motor Vehicle 1, household contents and other assets in her respective possession.
7.The Respondent otherwise retain the balance of any funds in any bank accounts in his name, the business known as Company E,…

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 Carlisle & Neely

Details

AGLC: Carlisle & Neely [2022] FedCFamC2F 1539
Case: [2022] FedCFamC2F 1539
Decision Date

CaseChat Overview and Summary

The case of Carlisle & Neely involved a property dispute between the parties who were in a de facto relationship from September 2014 to May 2018 and from June 2019 to September 2019. The primary asset in dispute was the property at B Street, Suburb C, which was held as tenants in common in equal shares. The applicant sought orders for the transfer of the property to her sole name and the discharge or refinance of the mortgage and personal loan. The respondent argued that he should receive 25% of the net assets.

The court found that the applicant provided significant initial contributions to the purchase of the B Street, Suburb C property and made further financial contributions during the relationship. The court rejected the respondent's claims of making substantial contributions to the relationship. The court also found that the applicant was subjected to family violence throughout the relationship, which impacted her contributions. The court considered the impact of the family violence when determining the just and equitable outcome.

The court held that it was just and equitable to transfer the property to the applicant's sole name and for the parties to otherwise keep what they have in their possession and control. The court ordered that the respondent transfer the property and the mortgage into the applicant's sole name, and the balance of the NAB debt into his sole name. The court considered the legislative requirements and the practical impact of the orders, and concluded that the orders were just and equitable in all of the circumstances.

Orders