DEAKINS & REMUS - [2021] FCCA 156

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEAKINS & REMUS

[2021] FCCA 156

Catchwords:
FAMILY LAW – Property – self-represented husband seeking adjournment at commencement of trial – husband’s repeated failure to participate in proceeding – adjournment clearly not appropriate – matter proceeding undefended – consideration of contributions and future needs – 63/37 division of non-superannuation assets in favour of the wife and equalisation of superannuation just and equitable.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 90XT(1)(a), 106A

Cases cited:

Sexton & Sexton [2012] FamCAFC 218

Stanford & Stanford (2012) 247 CLR 108

Applicant:

MS DEAKINS

Respondent:

MR REMUS

File Number:

DGC 70 of 2020

Judgment of:

Judge Burchardt

Hearing date:

18 January 2021

Date of Last Submission:

18 January 2021

Delivered at:

Dandenong

Delivered on:

5 February 2021

REPRESENTATION

Counsel for the Applicant:

Mr Tesoriero

Solicitors for the Applicant:

Malkin Lawyers

Counsel for the Respondent:

Self-Represented

Solicitors for the Respondent:

Not Applicable

ORDERS

The Applicant and Respondent sign all documents and do all things necessary to place the real property known as B Street, Suburb C in the State of Victoria more particularly described in Certificate of Title Volume ... Folio ... (“the B Street, Suburb C Property”) on the market for sale forthwith out of Court (“the Sale”) and the proceeds of sale be applied in the following order:
(a)To pay all costs, commissions and expenses of the sale;
(b)To discharge the mortgage and any encumbrances affecting the B Street, Suburb C Property;
(c)The sum of $4,400.00 to the Applicant (being the Orders for Costs made in Interim Orders 16 March 2020 and 21 July 2020);
(d)To payout debts owing to Region D Water, Owners Corporation and Council arising from the property (including any judgement debts in the name of the parties).
(e)The balance to the Respondent.
That for the purposes of the Sale the following Orders shall apply:
(a)The selling agent shall be appointed by the President of the Real Estate Institute of Victoria (“REIV”) or his nominee;
(b)The mode of sale shall be determined by the selling agent;
(c)The conveyancer shall be appointed by the selling agent;
(d)The listing and reserve price for the sale shall be as determined by the President of the REIV or his nominee;
(e)Both parties shall do all acts and things and sign all documents necessary to give prompt effect to the Orders of the Court for the Sale.
That pending completion of the Sale:-
(a)The rental income be applied towards the mortgage encumbering the B Street, Suburb C property;
(b)During such right of occupation the Respondent pay all instalments pursuant to the mortgage, rates, taxes and other apportionable outgoings related to the B Street, Suburb C Property as and when they fall due;
(c)Both the Applicant and Respondent hold their respective interest in the B Street, Suburb C Property on trust pursuant to these Orders
(d)Neither party further encumber the B Street, Suburb C Property;
(e)That liberty be reserved to either party to apply with respect to the terms and conditions of…

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 DEAKINS & REMUS

Details

AGLC: DEAKINS & REMUS [2021] FCCA 156
Case: [2021] FCCA 156
Decision Date: 5 February 2021

CaseChat Overview and Summary

In the matter of DEAKINS & REMUS, heard before Judge Burchardt, the applicant husband sought an adjournment at the commencement of the trial. The court considered the husband's repeated failure to participate in the proceedings and determined that an adjournment was not appropriate, proceeding with the matter undefended. The court then considered the contributions and future needs of the parties, ultimately making orders for a 63/37 division of non-superannuation assets in favour of the wife and an equalisation of superannuation entitlements, finding this division to be just and equitable.

The primary legal issues before the court were whether to grant the husband's application for an adjournment, given his history of non-participation, and how to achieve a just and equitable division of the parties' property and financial resources, taking into account their respective contributions and future needs. The court was required to determine the appropriate allocation of various assets, including real property, superannuation interests, and other financial resources, as well as the division of debts.

The court reasoned that the husband's persistent failure to engage with the legal process, despite opportunities to do so, meant that granting an adjournment would unduly delay the finalisation of the proceedings and was not in the interests of justice. In determining the property division, the court applied the principles of the *Family Law Act 1975* (Cth), considering the contributions of each party to the marriage and their future needs. The court's orders reflect a detailed division of assets, including the sale of a property, the distribution of proceeds, the retention of other properties, and a specific split of superannuation interests, with provisions for the payment of debts and costs.

Orders

Orders of the court

The Applicant and Respondent sign all documents and do all things necessary to place the real property known as B Street, Suburb C in the State of Victoria more particularly described in Certificate of Title Volume ... Folio ... (“the B Street, Suburb C Property”) on the market for sale forthwith out of Court (“the Sale”) and the proceeds of sale be applied in the following order:

(a) To pay all costs, commissions and expenses of the sale;

(b) To discharge the mortgage and any encumbrances affecting the B Street, Suburb C Property;

(c) The sum of $4,400.00 to the Applicant (being the Orders for Costs made in Interim Orders 16 March 2020 and 21 July 2020);

(d) To payout debts owing to Region D Water, Owners Corporation and Council arising from the property (including any judgement debts in the name of the parties).

(e) The balance to the Respondent.

That for the purposes of the Sale the following Orders shall apply:

(a) The selling agent shall be appointed by the President of the Real Estate Institute of Victoria (“REIV”) or his nominee;

(b) The mode of sale shall be determined by the selling agent;

(d) The listing and reserve price for the sale shall be as determined by the President of the REIV or his nominee;

(e) Both parties shall do all acts and things and sign all documents necessary to give prompt effect to the Orders of the Court for the Sale.

That pending completion of the Sale:-

(a) The rental income be applied towards the mortgage encumbering the B Street, Suburb C property;

(b) During such right of occupation the Respondent pay all instalments pursuant to the mortgage, rates, taxes and other apportionable outgoings related to the B Street, Suburb C Property as and when they fall due;

(c) Both the Applicant and Respondent hold their respective interest in the B Street, Suburb C Property on trust pursuant to these Orders

(d) Neither party further encumber the B Street, Suburb C Property;

(e) That liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the Sale;

That contemporaneously with the sale of the B Street, Suburb C Property the Wife pay the Husband $16,047 (“the Payment”). In the event that the proceeds of Sale of the B Street, Suburb C Property are insufficient to payout the debts referred to in Order 1(d) then the Wife shall pay the shortfall and deduct 50% of the shortfall from the Payment to the Husband.

That the Applicant retain as her sole property the real property known as E Street, Suburb F in the State of Victoria and more particularly described in Certificate of Title Volume ... Folio ... (“the E Street, Suburb F property”) and the Applicant indemnify the Respondent from the mortgage liability encumbering the E Street, Suburb F property together with all rates and outgoings.

That paragraph 5-9 of these Orders are binding on the trustee of the Super Fund G, member number ...34 (the fund).

The base amount allocated to the Applicant out of the interest of the Respondent in the Super Fund G, member number ...34 (“the fund”) is $13,703.00 (“the base amount”).

Pursuant to s 90XT(1)(a) of the Family Law Act 1975, whenever a splitable payment becomes payable in respect of the interest of the Respondent in the fund, the Applicant is entitled to be paid the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the Respondent.

That this order has effect from the operative time and the operative time is four business days following the serving of these Orders on the Trustee of the fund.

10.

Within 14 days of becoming entitled to receive a superannuation benefit from the fund, the Applicant will give the trustees of the fund:

(a) All such forms as necessary to enable it to determine the nature and quantum of the Respondent’s superannuation entitlement; and

(b) Any other related information it may reasonably require.

11.

Until such time as the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant:

(a) The Respondent will give to the Applicant and the Trustee of the fund written notice of not less than 28 days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole in whole or in part their entitlement in the fund;

(b) The Respondent will direct and authorise the trustee of the fund to communicate with the applicant and/or any person authorised by them in writing:

(i) To answer any reasonable enquiries as may be made by them on or on their behalf from time to time regarding her entitlement in the fund; and

(ii) To give to the applicant and/or her authorised representative a copy of any notice of any application or request by the Respondent which seeks release of entitlement in the fund in so far as that release may affect the Applicant’s entitlement in the fund pursuant to these orders; and

(c) The Respondent, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the Applicant, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which they are entitled pursuant to these Orders.

12.

In the event that the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant each of the parties will each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

13.

There be liberty to each party and the trustee of the fund to apply regarding the implementation of these orders affecting the interests of the Respondent and the Applicant in the fund.

14.

That in the event that the Respondent refuses or neglects to execute a Deed and/or instrument in compliance with the provisions of the paragraphs of this Order, the Applicant is hereby appointed pursuant to Section 106A of the Family Law Act 197 to execute all Deeds, documents and/or instruments in the name of the Respondent and do all acts and things to give validity and operation to the Deeds, documents and/or instruments.

15.

That the Respondent provide to the Applicant copies of his taxation financial documentation and tax returns for the financial years 2016/2017 to 2019/2020 within 14 days of request.

16.

That unless specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders.

(b) Monies standing to the credit of the parties in any bank account are to become the property of that party in whose name the account is registered and the parties shall do all necessary acts and things to close any joint accounts and the balance in any such joint account be divided equally;

(d) Insurance policies remain the sole property of the owner/beneficiary named therein;

(e) Each party be liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

(f) Each party be responsible for and indemnify the other for their individual debts; and

(g) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

17.

There be liberty to the parties to apply in respect of implementation of these orders.

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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