FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Caughey & Peckham (No 4) [2024] FedCFamC1F 197
File number: SYC 3782 of 2019 Judgment of: CHRISTIE J Date of judgment: 25 March 2024 Catchwords: FAMILY LAW – EVIDENCE – Application to adduce adversarial expert evidence as to value of real property – Where there is a $600,000 differential between the value opined by the single expert and the adversarial expert – Where the difference in opinion is drawn from different use of comparable properties – Where the application is made orally on the first day and would require the matter being adjourned – Application dismissed.
FAMILY LAW – FINAL PROPERTY ORDERS – Short de facto relationship – Where the parties have one joint real property that has increased in value since the breakdown of the de facto relationship – Where the respondent’s financial contributions significantly exceed the applicant’s– Where significant weight cannot be given to the applicant’s non-financial contributions due to their scope being incredibly time limited – Order for the applicant to receive an adjustment to recognise her contribution to the acquisition of the joint property and otherwise – Adjustment in favour of the applicant to recognise the need for a standard of living that is in all the circumstances reasonable.
Legislation: Family Law Act 1975 (Cth) ss 79, 90SF, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.08
Cases cited: Bevan & Bevan (2013) FLC 93-545
Calverley v Green (1984) 155 CLR 242
Caughey & Peckham (No 2) [2022] FedCFamC1F 670
Cook & Langford (2008) FLC 93-374
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 18-19 March 2024 Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Apex Legal Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Holmes Donnelly & Co Solicitors ORDERS
SYC 3782 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CAUGHEY
Applicant
AND: MR PECKHAM
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
25 MARCH 2024
THE COURT ORDERS THAT:
1.By way of final alteration of property interests pursuant to section 90SM of the Family Law Act 1975 (Cth) ("the Act") and simultaneously, within 42 days:
(a)the Respondent pay to the Applicant the total of $345,000.00;
(b)the Applicant attend to removal of the caveat registered on title of the property located at M Street, Town L ("Town L property”);
(c)the Applicant transfer to the Respondent the whole of her right, title and interest in the Town L property; and
(d)the Respondent do all things necessary to discharge the mortgage registered to National Australia Bank secured over the Town L property and refinance any and all liabilities secured over the Town L property into his sole name.
2.As between the Applicant and the Respondent, and subject to the above Order, the parties shall each respectively retain…
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- Caughey & Peckham (No 4) [2024] FedCFamC1F 197
- Case
- [2024] FedCFamC1F 197
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CaseChat Overview and Summary
The court found that the $600,000 difference in valuation between the single expert and the adversarial expert arose from different methodologies in using comparable properties. The court concluded that the adversarial expert's evidence was not admissible as it would necessitate an adjournment of the matter. The court reasoned that while both parties sought an adjustment, their approaches to the facts and applicable law were divergent. In the context of a short relationship, the court emphasised the importance of financial contributions over non-financial contributions, which were deemed to be limited in scope and duration. Consequently, the court ordered Mr. Peckham to pay Ms. Caughey $345,000 as an adjustment to recognise her contributions and ensure a reasonable standard of living. The court also mandated specific actions to be taken regarding the property, including the removal of a caveat and the transfer of the property's title to Mr. Peckham, subject to the discharge of existing mortgage liabilities.
The court's decision underscored the need to balance financial contributions and non-financial inputs when making property distribution orders in de facto relationships. The court dismissed the application for adversarial expert evidence due to the potential for delay and upheld the necessity of an equitable distribution reflective of the parties' financial inputs.
Orders
Orders of the court
SYC 3782 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS CAUGHEY
Applicant
AND:
MR PECKHAM
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
25 MARCH 2024
THE COURT ORDERS THAT:
1. By way of final alteration of property interests pursuant to section 90SM of the Family Law Act 1975 (Cth) ("the Act") and simultaneously, within 42 days:
(a) the Respondent pay to the Applicant the total of $345,000.00;
(b) the Applicant attend to removal of the caveat registered on title of the property located at M Street, Town L ("Town L property”);
(c) the Applicant transfer to the Respondent the whole of her right, title and interest in the Town L property; and
(d) the Respondent do all things necessary to discharge the mortgage registered to National Australia Bank secured over the Town L property and refinance any and all liabilities secured over the Town L property into his sole name.
2. As between the Applicant and the Respondent, and subject to the above Order, the parties shall each respectively retain all interest in and entitlement to:
(a) all personal property, including choses-in-action, in his or her name respectively or jointly held with a third party;
(b) all shares, ventures, units in unit trusts, bank building society, credit union accounts standing in his or her sole name or in joint names with third parties respectively; and
(c) all interests in insurance policies and all superannuation funds standing in his or her name respectively.
3. The Applicant and Respondent hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of in respect of any act, cause, matter or thing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
While both parties to this application seek an adjustment it would appear that the parties in this case are approaching the facts (or application of the law to the facts) in a manner which is divergent. CONSIDERATION In a short relationship there is less opportunity for a myriad of contributions.Financial contributions I accept that each party made financial contributions to the best of his or her respective capabilities and that the financial contributions of the respondent well exceeded those of the applicant. I propose to set out the findings from Caughey & Peckham (No 2) [2022] FedCFamC1F 670 that relate to the applicant’s receipt of funds from the respondent:69. [In mid] 2017 the applicant commenced to receive $1,000 per week from the respondent. I note that the applicant’s evidence about when these payments commenced was internally inconsistent in so far as she gave conflicting dates for both the commencement and conclusion of the payments in her sworn affidavit evidence. There was no resolution of this inconsistency via cross‑examination and so, doing the best I can, I formed the view that the payments commenced in [mid] 2017 (as both parties had sworn) and concluded in [mid] 2019 (as both parties had sworn) and disregarded the other dates the applicant included in her evidence as being likely in error. 70. On both parties’ cases this amount was linked to work undertaken by the applicant for the respondent in his [office] (referrable to his work […] and his investments). In cross-examination the respondent elaborated the $1,000 per week was a product of the applicant’s work in [the office] and also for his daughter to use the applicant’s car space in the city. The applicant pointed to text message communication between them as indicative of the fact that the respondent also expected her to use those funds to purchase items for the household. In the parties’ text message communication [in early] 2018 the respondent said:Just so you have in writing, I intend to pay for our joint living expense and your enjoyment, I for example dd $1,000 pw to your account, sometime if there’s a problem in a particular week it may not go through but overwhelmingly it does and if you tell me it didn’t go through one week it will next week. Just say.And later the same day:As to the cards, I have provided cards in the past and have given you, if we are at a show together I pay, as I pay for all expenses when we go anywhere. I pay all utilities and put diesel in your car, and will pay anything else you want.The applicant responded:I do not agree with everything you have written… there are many things I pay for out of my money and out of the $1000 per week… this is all because I wanted you to give me a credit card for groceries household items… are we going to break up over groceries… omg!The respondent replied:Neither do I predictive spelling is crap. I do [not] want power over you with money and have not sought it, please park the allegation with whoever it belongs with but its not me. I have given you cards and pins in the past when we are out I pay for everything. If you pay for things you can ask for reimbursement its normal and was I not trying to do just that when you got all antsy a moment ago. Break up over groceries if you want as stupid pretexts go its as good as any other, you have been weird since Monday night when you accosted me in the shower.(As per the original)71. The explanation that the $1,000 was for work undertaken by the applicant cannot be the whole explanation in circumstances where the payments did not cease until [mid] 2019 and it is not suggested any significant work was undertaken by the applicant for the respondent in the periods March to May 2019. It is also unlikely to be explained by the respondent’s contention that it was in part payment for the car space owned by the applicant in the building next to the [F Building]. The applicant relied on text messages where I accept the respondent appears to say that it is reasonable for the applicant to be applying some of the $1,000 to household expenses. I accept that the payment by respondent to applicant may appropriately be characterised as an allowance which came with an expectation that the applicant may provide some assistance in return. (As per the original)