CLINTON & YANCHEP - [2019] FCCA 265

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLINTON & YANCHEP

[2019] FCCA 265

Catchwords:
FAMILY LAW – Property – 11 year marriage – husband in receipt of TPD payment – assessment of contributions – adjustment of parties’ interests – justice and equity.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Cases cited:

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91

DJM & JLM (1998) FLC 92-816

Irving & Parkes [2015] FCCA 3049
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Vass & Vass [2015] FamCAFC 51
Weir & Weir (1993) FLC 92-338
Whisprun Pty Ltd v Dixon [2003] HCA 48

Applicant:

MS CLINTON

Respondent:

MR YANCHEP

File Number:

PAC 4674 of 2016

Judgment of:

Judge Obradovic

Hearing dates:

5 – 6 March 2018

Date of Last Submission:

16 April 2018

Delivered at:

Parramatta

Delivered on:

12 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Shaw

Solicitors for the Applicant:

John A Chapman Solicitor

Counsel for the Respondent:

Mr Wong

Solicitors for the Respondent:

Lamrocks Solicitors

ORDERS

Pursuant to section 79 of the Family Law Act1975, the Applicant is to pay to the Respondent the amount of $59,275 within 28 days.
The Applicant is declared the sole legal and beneficial owner, as against the Respondent, of the property known as and situated at Property A in the State of New South Wales.
The Respondent is declared the sole legal and beneficial owner, as against the Applicant, of the property known as and situated at Property B in the State of New South Wales.
The Applicant is declared the sole legal and beneficial owner, as against the Respondent, of:
(a)Any motor vehicle in her possession;
(b)All items of furniture and contents in her possession;
(c)All savings or monies in her possession, custody or control;
(d)Her contributions and accumulated entitlements with respect to or arising from her membership of any superannuation fund;
(e)Her employment related entitlements including but not limited to annual leave, sick leave and long service; and
(f)All liabilities in her name in respect of which she shall indemnify and keep indemnified the Respondent.
The Respondent is declared the sole legal and beneficial owner, as against the Applicant, of:
(a)Any motor vehicle in his possession;
(b)All items of furniture and contents in his possession;
(c)All savings or monies in his possession, custody or control;
(d)All monies received by him in respect of any workplace injury;
(e)His contributions and accumulated entitlements with respect to or arising from his membership of any superannuation fund;
(f)His employment related entitlements including but not limited to annual leave, sick leave and long service; and
(g)All liabilities in his name in respect of which he shall indemnify and keep indemnified the Applicant.
In the event that either party fails to execute any deed or instrument necessary to give effect to these Orders within seven days of being…

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 CLINTON & YANCHEP

Details

AGLC: CLINTON & YANCHEP [2019] FCCA 265
Case: [2019] FCCA 265
Decision Date: 12 February 2019

CaseChat Overview and Summary

In the matter of *Clinton & Yanchep*, heard by Judge Obradovic, the dispute concerned the division of property following an eleven-year marriage. The husband was in receipt of a Total and Permanent Disablement (TPD) payment, which formed a significant aspect of the asset pool to be considered.

The court was required to determine how the parties' contributions, both financial and non-financial, should be assessed and how the property interests should be adjusted to achieve a just and equitable outcome under section 79 of the *Family Law Act 1975*. A key issue was the appropriate valuation and treatment of the husband's TPD payment within the property settlement.

Judge Obradovic reasoned that while the TPD payment was a significant asset, its nature as compensation for a workplace injury and its potential impact on the husband's future earning capacity and needs required careful consideration. The court assessed the contributions of each party throughout the marriage, taking into account direct and indirect contributions, as well as future needs. The principles of justice and equity guided the court in making an adjustment to the parties' interests to reflect these contributions and circumstances.

The court ordered that the applicant pay the respondent $59,275 within 28 days. Specific properties and various other assets, including motor vehicles, furniture, savings, superannuation entitlements, and employment-related entitlements, were declared the sole legal and beneficial ownership of either the applicant or the respondent, as were their respective liabilities. The court also made provision for a Registrar to execute necessary documents if either party failed to do so.

Orders

Orders of the court

Pursuant to section 79 of the Family Law Act 1975, the Applicant is to pay to the Respondent the amount of $59,275 within 28 days.

The Applicant is declared the sole legal and beneficial owner, as against the Respondent, of the property known as and situated at Property A in the State of New South Wales.

The Respondent is declared the sole legal and beneficial owner, as against the Applicant, of the property known as and situated at Property B in the State of New South Wales.

The Applicant is declared the sole legal and beneficial owner, as against the Respondent, of:

(a) Any motor vehicle in her possession;

(b) All items of furniture and contents in her possession;

(d) Her contributions and accumulated entitlements with respect to or arising from her membership of any superannuation fund;

(e) Her employment related entitlements including but not limited to annual leave, sick leave and long service; and

(f) All liabilities in her name in respect of which she shall indemnify and keep indemnified the Respondent.

The Respondent is declared the sole legal and beneficial owner, as against the Applicant, of:

(a) Any motor vehicle in his possession;

(b) All items of furniture and contents in his possession;

(d) All monies received by him in respect of any workplace injury;

(e) His contributions and accumulated entitlements with respect to or arising from his membership of any superannuation fund;

(f) His employment related entitlements including but not limited to annual leave, sick leave and long service; and

(g) All liabilities in his name in respect of which he shall indemnify and keep indemnified the Applicant.

In the event that either party fails to execute any deed or instrument necessary to give effect to these Orders within seven days of being requested to do so, a Registrar of the Parramatta Registry shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and do all acts and things as may be necessary to give validity to the operation of the deed or instrument.

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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

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