Dobson & Singleton - [2022] FedCFamC2F 499

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dobson & Singleton [2022] FedCFamC2F 499

File number(s): ADC 5862 of 2020

Judgment of: JUDGE DICKSON

Date of judgment: 22 April 2022

Catchwords: FAMILY LAW – Property – final hearing – long de facto relationship – issue as to who should retain the former matrimonial home – issue of add backs of applicant’s redundancy and superannuation withdrawal – whether an amount owing to the applicant’s father should be treated as a loan or a contribution by the applicant – former matrimonial home and mortgage are already in the applicant’s sole name - applicant proposes to utilise funds from his father to pay the respondent an inflated settlement sum should he retain the former matrimonial home – where the respondent has not established that she can retain the former matrimonial home and take over the mortgage – where the monies from the applicant’s redundancy and superannuation withdrawal should be added back to the pool – where monies from applicant’s father are to be treated as a contribution and not a loan – where applicant receives a 5% adjustment for contributions – where applicant proposes to pay the respondent a settlement sum in excess of what the Court would have ordered in order to retain the property - just and equitable for the applicant to retain the former matrimonial home and pay the respondent a settlement sum as he proposes – where such an outcome equates to a 51.5/49.5% split in the respondent’s favour – equalisation of superannuation – just and equitable

Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 90SF, 90SM

Cases cited:
Biltoft & Biltoft [1995] FamCA 45, (1995) FLC 92-614, 19 Fam LR 39

Jabour & Jabour [2019] FamCAFC 78, (2019) FLC 93-898, (2019) 59 Fam LR 475

NHC & RCH (2004) FLC 93-204

Ogilvie & Adams [1981] VR 1041

Stanford & Stanford (2012) 247 CLR 108

Trevi & Trevi (2018) FLC 93-858

Williams & Williams [2007] FamCA 313

Division: Division 2 Family Law

Number of paragraphs: 247

Date of last submission/s: 2 March 2022

Date of hearing: 1-2 March 2022

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Scales & Partners

Counsel for the Respondent: Mr Anderson

Solicitor for the Respondent: Nicole Kelly Legal
ORDERS

ADC 5862 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DOBSON

Applicant

AND:
MS SINGLETON

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

22 APRIL 2022

THE COURT ORDERS THAT:
1.The applicant do pay to the respondent the sum of FOUR HUNDRED AND FIFTY THOUSAND DOLLARS AND ZERO CENTS ($450,000.00) within sixty (60) days of the date of these orders (‘the settlement date’).
2.Contemporaneously with the payment of $450,000.00 referred to in paragraph 1 herein the respondent shall do all such things at her sole expense to withdraw the Caveat lodged by her over the property situate at B Street, Town C (‘the said B Street, Town C property’).
3.The respondent…

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 Dobson & Singleton

Details

AGLC: Dobson & Singleton [2022] FedCFamC2F 499
Case: [2022] FedCFamC2F 499
Decision Date

CaseChat Overview and Summary

This case concerns a competing application for property settlement between Mr Dobson and Ms Singleton, who were in a de facto relationship for 28 years and share a son, Mr K. The parties have separated and the proceedings concern the division of their property pool. The key issues the court had to determine were whether the applicant should retain the former matrimonial home, the percentage adjustment to the division of the parties’ net non-superannuation assets, whether $10,000 from the applicant’s redundancy should be added back to the pool, whether $20,000 withdrawn from the applicant’s superannuation should be added back to the superannuation balance, and whether the amount owing to the applicant’s father in the sum of $113,240.00 should be treated as a loan owing by the parties or the applicant alone, or whether such sum was a gift and should be assessed as a contribution. The applicant argued that it was just and equitable for him to retain the former matrimonial home and pay the respondent a settlement sum of $450,000.00. The respondent argued that she should retain the former matrimonial home and that no settlement sum was then payable to the applicant. The court held that it was just and equitable to permit the applicant to retain the former matrimonial home and pay the respondent a settlement sum of $450,000.00. The court held that the parties’ net non-superannuation assets should be divided 55% to the applicant and 45% to the respondent. However, given that the applicant was prepared to pay a premium to secure the former matrimonial home by paying the respondent a settlement sum of $450,000.00, the court proposed making orders in those terms. The court also held that the parties superannuation entitlements will be equalised, but adding back the sum of $20,000 as sought by the respondent.

Orders