FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEAVE & PALLIN | [2020] FCCA 415 |
| Catchwords: FAMILY LAW – Property – initial contributions – husband’s post-separation contributions – extent of husband’s expenditure post-separation. |
| Legislation: Family Law Act 1975 (Cth), ss.4(1), 75(2), 79 |
| Cases cited: Aleksovski & Aleksovski (1996) FLC ¶92-705 Hickey & Hickey & A-G for the Commonwealth of Australia(Intervener) (2003) FLC ¶93-143 Jabour & Jabour [2019] FamCAFC 78 Rosati v Rosati (1998) FLC ¶92-804 Weir & Weir (1993) FLC ¶92-338 |
| Applicant: | MS DEAVE |
| Respondent: | MR PALLIN |
| File Number: | HBC 1195 of 2017 |
| Judgment of: | Judge Baker |
| Hearing dates: | 21–22 October 2019, 31 January 2020, 12 February 2020 |
| Date of Last Submission: | 12 February 2020 |
| Delivered at: | Hobart |
| Delivered on: | 11 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fitzgerald |
| Solicitors for the Applicant: | Fitzgerald & Browne |
| Counsel for the Respondent: | Mr Turnbull |
| Solicitors for the Respondent: | Jacobs Family Law |
ORDERS
Forthwith the wife shall place the property situated at A Street, Suburb B (“A Street, Suburb B”) on the market for sale and the following provisions shall apply:
(a)The sale price and marketing arrangements shall be agreed between the husband and wife and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania;
(b)The husband and wife both forthwith do all acts and things and sign all necessary documents to effect the sale of the property;
(c)Pending completion of any sale, the wife shall maintain the property and the chattels contained in the property in good order and condition, keep the property and chattels insured, pay the rates, land tax and other outgoings in relation to the property and continue to make regular payments of the mortgage owed in respect of the property;
(d)Upon completion of sale, the proceeds of sale shall be applied as follows:
(i)The payment of rates, water, land tax and other outgoings in the real estate agent’s fees and disbursements;
(ii)Payment of the conveyancing legal fees;
(iii)A sum set aside in trust for capital gains tax as calculated by the wife’s accountant;
(iv)Payment of all monies due under the ANZ mortgage secured on the said property; and
(v)Payment of all monies due under the ANZ supplementary loan.
Liberty to each party to apply in respect of the said sales.
Upon settlement of the sale of the A Street, Suburb B, the wife shall:
(a)Transfer to the husband all her right title and interest…
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- DEAVE & PALLIN [2020] FCCA 415
- Case
- [2020] FCCA 415
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the appropriate apportionment of the parties' assets, specifically considering the husband's financial contributions to a property after the separation of the parties. The court had to assess the significance of these post-separation expenditures in the overall division of the matrimonial property.
Judge Baker reasoned that while initial contributions are important, post-separation contributions, particularly those that preserve or enhance an asset, warrant consideration. The court applied principles of property adjustment under the Family Law Act 1975 (Cth), balancing the contributions of each party and their future needs. The court ordered the sale of a property known as "A Street, Suburb B," with the proceeds to be applied to various expenses including mortgage payments and taxes, before distribution. The wife was to transfer her interest in another property, "C Street, Suburb D," to the husband, who was then required to refinance the mortgage on that property. The wife was also ordered to pay the husband a sum to ensure he received 53 per cent of the non-superannuation property. Provisions were made for alternative arrangements should the husband be unable to refinance the mortgage on "C Street, Suburb D," including the potential sale of that property and a revised distribution of proceeds. Each party was to retain their respective bank accounts, superannuation, and chattels, and remain liable for their own debts.
Orders
Orders of the court
1.
Forthwith the wife shall place the property situated at A Street, Suburb B (“A Street, Suburb B”) on the market for sale and the following provisions shall apply:
(a) The sale price and marketing arrangements shall be agreed between the husband and wife and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania;
(b) The husband and wife both forthwith do all acts and things and sign all necessary documents to effect the sale of the property;
(c) Pending completion of any sale, the wife shall maintain the property and the chattels contained in the property in good order and condition, keep the property and chattels insured, pay the rates, land tax and other outgoings in relation to the property and continue to make regular payments of the mortgage owed in respect of the property;
(d) Upon completion of sale, the proceeds of sale shall be applied as follows:
(i) The payment of rates, water, land tax and other outgoings in the real estate agent’s fees and disbursements;
(ii) Payment of the conveyancing legal fees;
(iii) A sum set aside in trust for capital gains tax as calculated by the wife’s accountant;
(iv) Payment of all monies due under the ANZ mortgage secured on the said property; and
(v) Payment of all monies due under the ANZ supplementary loan.
2.
Liberty to each party to apply in respect of the said sales.
3.
Upon settlement of the sale of the A Street, Suburb B, the wife shall:
(a) Transfer to the husband all her right title and interest in the property situated at C Street, Suburb D (“C Street, Suburb D”); and
(b) Pay to the husband such sum so as to ensure that the husband receives a sum equal to 53 per cent of the non-superannuation property as set out in the Reasons for Judgment.
4.
Contemporaneously with the transfer and payment referred to in paragraph 3, the husband shall refinance the mortgage to ANZ secured over the property situated at C Street, Suburb D.
5.
Pending the settlement of the sale of A Street, Suburb B and the payment pursuant to paragraph 3, the husband shall maintain C Street, Suburb D in good order and condition, keep the property insured, pay the rates and other outgoings in relation to the property and continue to make regular payments of the mortgage and the ANZ supplementary loan owed in respect of the property.
6.
If the husband is unable to refinance the ANZ mortgage contemporaneously with the settlement of the sale of A Street, Suburb B, the husband shall transfer to the wife all his right title and interest in the property situated at C Street, Suburb D.
7.
Contemporaneously with the transfer referred to in paragraph 6, the wife shall do all such acts and things necessary to refinance the ANZ mortgage and shall indemnify the husband in respect thereof.
8.
Contemporaneously with the transfer referred to in paragraph 6, the wife shall pay to the husband such sum as to ensure that the husband receives a sum equal to 53 per cent of the non-superannuation property.
9.
In the event that the wife is unable to refinance the ANZ mortgage secured on C Street, Suburb D, the parties shall place the property on the market for sale and the following provisions shall apply:
(a) The sale price and marketing arrangements shall be agreed between the husband and wife and failing agreement as determined by a valuer nominated by the President of the Real Estate Institute of Tasmania;
(b) The husband and wife both forthwith do all acts and things and sign all necessary documents to effect the sale of the property;
(c) Pending completion of any sale, the husband shall maintain the property and the chattels contained in the property in good order and condition, keep the property and chattels insured, pay the rates, land tax and other outgoings in relation to the property and continue to make regular payments of the mortgage owed in respect of the property;
(d) Upon completion of sale, the proceeds of sale shall be applied as follows:
(i) The payment of rates, water, land tax and other outgoings in the real estate agent’s fees and disbursements;
(ii) Payment of the conveyancing legal fees;
(iii) Payment of all monies due under the ANZ mortgage secured on the said property; and
(iv) The balance paid to the parties in such sums so as to ensure that the husband receives a sum equal to 53 per cent of the non-superannuation property as set out in the Reasons for Judgment and the wife receives a sum equal to 47 per cent of the non-superannuation property.
10.
Each party will retain and the other party shall have no right, entitlement or interest to the following:
(a) All bank accounts in each party’s name;
(b) All superannuation benefits belonging to each party; and
(c) All goods and chattels, including motor vehicles, in each party’s possession.
11.
Each party is liable for any debts in that party’s name and shall indemnify the other party in respect thereof.
12.
Costs be reserved.
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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