Deen & Deen - [2023] FedCFamC2F 1106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deen & Deen [2023] FedCFamC2F 1106

File number(s): NCC 257 of 2019

2

Judgment of: JUDGE CARTY

Date of judgment: 25 August 2023

Catchwords: FAMILY LAW – PROPERTY –final orders sought pursuant to s.79 of the Act– duration of relationship- where the parties were in a de facto relationship prior to their marriage – whether the de facto relationship commenced in 2004 or in 2008 – agreed balance sheet – court satisfied in all the circumstances that it is just and equitable to make orders – each party made initial direct financial contributions – husband’s initial direct financial contribution significantly greater than the wife’s –consideration of global or separate pool approach to assessment of contributions – two pool approach convenient – assessment of contributions during relationship – consideration of what orders are appropriate to make

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth) ss 4AA, 75, 79, Part VIII

Cases cited:
Briginshaw & Briginshaw and Another (1938) 60 CLR 336

Crabtree & Crabtree (1963) 5 FLR 307

Dickons & Dickons [2012] FamCAFC 154; (2012) 50 FamLR 244

Fairbairn v Radecki [2022] HCA 18

Holland & Holland [2017]FamCAFC 166

In the Marriage of Olliver [1978] FamCA 24; (1978) FLC 90-499

Kowaliw (1981) FLC 91-092

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 (30 April 1986)

Stanford & Stanford [2012] HCA 52

Zaruba & Zaruba [2017] FamCAFC 91

Division: Division 2 Family Law

Number of paragraphs: 226

Date of last submission/s: 13 January 2023

Date of hearing: 28 & 29 January 2022

Place: Newcastle

Counsel for the Applicant: Mr Rugendyke

Solicitor for the Applicant: Byrnes Lawyers

Solicitor for the Respondent: Marsden Law Group
ORDERS

NCC 257 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DEEN

Applicant

AND:
MS DEEN

Respondent

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS THAT:
1.These Orders are made by way of declaration of property interests pursuant to Section 78 of the Family Law Act 1975 (“the Act”) and by way of alteration of property interests pursuant to Section 79 of the Act.

Payment to the Wife
2.Within 28 days of the date of these Orders the husband shall pay to the wife, or as she otherwise directs in writing, the sum of $631,700.51.

Wife to vacate the B Street, Suburb C property
3.Within 28 days of the date of these Orders and simultaneously with the husband complying with Order 2 hereto the wife shall vacate the property situate and known as B Street, Suburb C NSW being the whole of the land contained in folio identifier … (‘the Suburb C property’), and thereafter the wife is restrained from attending at the Suburb C property without the prior written consent of the husband.
4.The wife shall leave the Suburb C property in a clean and tidy condition.

The B Street, Suburb C property
5.By way of declaration of property…

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 Deen & Deen

Details

AGLC: Deen & Deen [2023] FedCFamC2F 1106
Case: [2023] FedCFamC2F 1106
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Deen & Deen was decided on 25 August 2023. The matter involved a property settlement following the breakdown of a marriage between Mr Deen (the husband) and Ms Deen (the wife). The husband sought a property settlement in which he would receive 72% of the net pool of assets, while the wife sought 45%. The court found that the parties were in a de facto relationship from 2008 until they married in 2011, and thereafter were married for 6 years and 4 months. The court determined that the husband was entitled to 69.5% of the net pool of assets, and the wife was entitled to 30.5%. The court adopted a two pool approach to assess the contributions of the parties. The court found that the husband's initial financial contributions were significantly greater than the wife's, and that the wife's contributions as a homemaker were substantial. The court also considered gifts made to the wife's daughter, gambling by the wife, and the husband's financial management skills. The court ordered that the husband pay the wife $631,700.51, and that the wife vacate the Suburb C property. The husband was to retain the Suburb C, Suburb G, Suburb J, Suburb L properties, various bank accounts, shares, and a motor vehicle. The wife was to retain the Suburb E property, her superannuation, various bank accounts, and a motor vehicle. The court also ordered that the husband transfer his interest in a burial plot to the wife. The court concluded that the orders were just and equitable, taking into account the contributions of the parties and the future financial circumstances of both parties.

Orders