FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Delmont & Simms [2024] FedCFamC2F 113
File number(s): NCC 3440 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – de facto property – decades-long relationship – modest property pool – finding that the perpetration of family violence had a significant adverse effect on contributions – where neither party has meaningful prospect of returning to paid employment – legal aid caveat to consider - overall adjustment of property 60:40 in favour of de facto wife – timely severance of the parties’ financial relationship - just and equitable Legislation: Family Law Act 1975 (Cth) Part VIIIAB Cases cited: Benson & Drury [2020] FamCAFC 303; (2020) 62 Fam LR 1
Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387
Blandford & Esmore [2022] FedCFamC1A 67
Blass & Blass [2022] FedCFamC1A 63
C & C [2005] FamCA 429; (2005) 33 Fam LR 414; (2005) FLC 93-220
Dickons & Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 24
Fields & Smith [2015] FamCAFC 57; (2015) 53 Fam LR 1
Jonah v White [2012] FamCAFC 200; 48 Fam LR 562
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Keating & Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158
Kennon & Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1; (1997) 139 FLR 118
Koch & Kest [2021] FamCA 408
Lenehan & Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615; (1987) FLC 91-814
Lotta & Lotta [2017] FamCA 50
Lovine & Connor [2012] FamCAFC 168
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; 10 Fam LR 819
Petrellis & Petrellis [2023] FedCFamC1A 104
Petruski & Balewa [2013] FamCAFC 15; (2013) 49 Fam LR 116
Stanford & Stanford [2012] HCA 52; [2012] 247 CLR 108; (2012) 47 Fam LR 481
Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 7-8 December 2023 Place: Newcastle Counsel for the Applicant: Mr Alexander Gallimore Solicitor for the Applicant: The Family Law Co Counsel for the Respondent: Mr Michael Graham Solicitor for the Respondent: Grace Family Law Solicitors ORDERS
NCC 3440 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DELMONT (BY HIS LITIGATION GUARDIAN – MS DELMONT)
Applicant
AND: MS SIMMS
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT DECLARES THAT:
1.Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (‘the Act’):
(a)the applicant, MR DELMONT (‘the de facto husband’) and the respondent, MS SIMMS (‘the de facto husband’) were in a de facto relationship for more than two (2) years for the purposes of s 90SB(a);
(b)the de facto relationship ended in August 2020;
(c)the parties made substantial contributions to their property; and
(d)a failure to make an Order pursuant to s 90SM and/or…
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- Delmont & Simms [2024] FedCFamC2F 113
- Case
- [2024] FedCFamC2F 113
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CaseChat Overview and Summary
The court determined that the de facto husband and wife had been in a relationship for over two years, during which they made substantial contributions to their property. The court found that the perpetration of family violence by the husband had a significant adverse effect on the wife's contributions to the relationship. Both parties had limited prospects of returning to paid employment in the future. The court considered these factors, along with the legal aid caveat, in making its decision. The court ruled that the husband should pay the wife $125,058 and transfer his interest in their property to her, subject to certain conditions. The court also ordered that if the wife failed to make the payment, the property should be sold and the proceeds divided between the parties in a 60:40 ratio in favour of the wife. The court found that this division of property was just and equitable, considering all the circumstances.
The court's decision was based on a thorough analysis of the evidence presented and the relevant legal principles. The court found that the husband's contributions to the relationship were significantly impacted by his perpetration of family violence, which reduced his overall contribution to the property pool. The court also found that both parties had limited future earning prospects, which made it difficult to determine the value of each party's future contributions. However, the court was able to make a fair and equitable division of property based on the evidence and the legal principles applicable to the case. The court's decision was well-reasoned and supported by the evidence presented. The court also provided clear and detailed orders to ensure that the settlement was carried out in a timely and effective manner.
Orders
Orders of the court
NCC 3440 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DELMONT (BY HIS LITIGATION GUARDIAN – MS DELMONT)
Applicant
AND:
MS SIMMS
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT DECLARES THAT:
1. Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (‘the Act’):
(a) the applicant, MR DELMONT (‘the de facto husband’) and the respondent, MS SIMMS (‘the de facto husband’) were in a de facto relationship for more than two (2) years for the purposes of s 90SB(a);
(b) the de facto relationship ended in August 2020;
(c) the parties made substantial contributions to their property; and
(d) a failure to make an Order pursuant to s 90SM and/or a declaration pursuant to s 90SL would result in serious injustice to the parties.
2. Pursuant to s 90RD(1) of the Act and for the purposes of s 90SK:
(a) The de facto husband was ordinarily resident in a participating jurisdiction (namely the State of New South Wales) at the time when the application for orders under s 90SM was made; and
(b) Both parties were ordinarily residents of the State of New South Wales during at least one-third of the de facto relationship.
3. Except as otherwise provided for in these Orders:
(a) Each party shall retain, to the exclusion of the other, all assets and property presently in their name or ownership; and
(b) Each party shall be solely liable for, all liabilities and debts presently in their name, and will indemnify the other with respect to these, and will keep them indemnified.
4. The husband shall be declared to have the sole right, title and interest in any and all superannuation interests which are held by the trustee of any superannuation fund in the husband’s name.
THE COURT ORDERS THAT:
Cash payment
5. By 1 March 2024, the de facto wife is to pay the de facto husband the sum of $125,058 (‘the payment’) in accordance with his written direction PROVIDED THAT upon receipt of the payment, the de facto husband is to pay to Legal Aid NSW the amount owing to Legal Aid NSW for the husband’s legal costs of these proceedings.
6. Contemporaneous with the payment being made, the parties shall do all acts and things necessary and sign all documents required to transfer from the de facto husband to the de facto wife all of the de facto husband’s right, title and interest in the property situate and known as B Street, Town C, in the State of New South Wales (‘the Town C property’) being more properly described as Lot … on Deposited Plan … being held in Folio Identifier ….
7. Contemporaneous with the payment being made, the parties shall do all acts and things necessary and sign all documents required to discharge the existing Commonwealth Bank of Australia mortgage (identifier number …) secured over the Town C property.
8. Contemporaneous with the payment being made, the de facto husband shall do all acts and things necessary to have Legal Aid NSW withdraw any existing caveat secured over the Town C property.
Sale of the Town C property
9. Should the de facto wife default on Order 5, then by 15 March 2024, the parties shall do all things necessary and sign all documents required to cause the Town C property to be listed for sale.
10. To facilitate the sale of the Town C property:
(a) By 22 March 2024, the de facto husband (or his solicitor as the case may be) shall provide to the de facto wife (or her solicitor as the case may be) a list of three real estate agents and three conveyancers to act in the sale;
(b) By 28 March 2024, the de facto wife (or her solicitor as the case may be) shall nominate one real estate agent and one conveyancer from the list to act in the sale, FAILING WHICH the de facto husband can make that decision unilaterally;
(c) By 5 April 2024, the parties shall agree on a list price for the property and a sales strategy (private treaty or auction or something else) failing which the list price and the sales strategy shall be in accordance with the recommendation of the appointed real estate agent;
(d) The parties shall do things necessary and sign all documents required by the appointed real estate agent and conveyancer to execute a contract of sale and subsequently settle the transaction.
11. Upon settlement of the sale of the Town C property, the sale proceeds shall be disbursed as follows:
(a) Payment of the selling agent’s fees and the legal fees of the sale;
(b) Payment of outstanding council and water rates;
(c) To discharge any mortgage secured against the Town C property;
(d) To discharge any Legal Aid caveat secured against the Town C property;
(e) Subject to Order 13, the remaining proceeds shall be divided between the parties to achieve a property adjustment of the parties’ property interests of 60:40 in favour of the de facto wife as follows:
A. Payment to the de facto husband in accordance with his written direction and calculated by reference to the following formula:
(SP + WA + HA) x 40% - HALC = the de facto husband’s share
Where
SP = the remaining proceeds of sale of the Town C property PLUS the amounts paid to Legal Aid NSW on account of any caveats withdrawn at settlement;
WA = the wife’s assets totalling $NIL;
HA = the husband’s assets totalling $32,000;
HALC = $32,000 PLUS the total sum paid out to have the Legal Aid caveat (if any) withdrawn.
B. Payment of the balance (‘the de facto wife’s share’) as follows:
(i) payment to the de facto husband of any amounts accrued because of the de facto wife’s failure to comply with Order 13 which were either paid out at settlement of the sale or which the de facto husband otherwise paid;
(ii) payment of the balance to the de facto wife in accordance with her written direction.
The Town C property - miscellaneous
12. Pending compliance with Order 5 and/or Orders 9 and 10, the de facto wife shall have the right to exclusive occupation of the Town C property.
13. Pending compliance with Order 5 or until the de facto wife vacates the Town C property to effect its sale (as the case may be) she is responsible for:-
(a) Making all mortgage repayments as specified within the terms of any loan agreement made between any registered mortgagee and the de facto wife;
(b) Paying all premiums to ensure the Town C property is covered by public liability and building insurance;
(c) Paying all council rates and other utilities that are connected to the Town C property;
(d) Maintaining the property in its current state of repair; and
(e) Providing reasonable access to the Town C property (with key/s provided to the appointed real estate agent) for inspection by prospective purchasers including that neither she nor any nominee on her behalf shall be present during such inspection/s.
14. The parties are restrained, and an injunction shall issue prohibiting them from encumbering the Town C property without the consent in writing of the other party or any mortgagee.
Enforcement
15. Each party is to do all acts and things and sign all documents necessary to give effect to these Orders.
16. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Miscellaneous
17. All outstanding applications are otherwise dismissed.
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
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