FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Earlman & Blazena [2023] FedCFamC2F 922
File number: MLC 125 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 27 July 2023 Catchwords: FAMILY LAW – Property settlement – De facto relationship – Relationship of approximately eight years –Financial and non-financial contributions during the relationship – De facto Wife received Total Permanent Disablement (TPD) Payment – Whether TPD Payment should be characterised as a contribution of the de facto Wife – Property wholly purchased with proceeds from TPD Payment – De facto Wife’s future needs given serious health conditions Legislation: Family Law Act 1975 (Cth) ss. 90SF, 90SM, 106A Cases cited: Aleksovski v Aleksovksi (1996) 135 FLR 131
Beckett & Beckett [2017] FCCA 608
Clauson & Clauson (1995) FLC 92-595
Jabour v Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78
JEL & DDF (2001) FLC 93-075
Singersons & Joans [2014] FamCAFC 238
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Wallis & Manning (2017) FLC93-759; [2017] FamCAFC 14
Division: Division 2 Family Law Number of paragraphs: 71 Date of last submissions: 12 July 2023 Date of hearing: 12 July 2023 Place: Melbourne Applicant: In person Counsel for the Respondent: Mr McGann Solicitor for the Respondent: Griese Lawyers ORDERS
MLC 125 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EARLMAN
Applicant
AND: MS BLAZENA
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
27 JULY 2023
THE COURT ORDERS THAT:
1.The Respondent retain for her sole use and benefit to the exclusion of the Applicant, all of her right title and interest in the real property situated at and known as C Street, Town D, Victoria registered in her name and more particularly described in certificate of title VOLUME … FOLIO … (Town D property).
2.The Applicant, within 21 days of the date of these orders, at his expense, do all necessary acts and things and sign all necessary documents including any deed or instrument as may be required to withdraw Caveat Number … (Caveat) lodged on the Town D property.
3.The Respondent, within 21 days of the date of these orders, at her expense, do all necessary acts and things and sign all documents including any deed or instrument as may be required to transfer registration and ownership of the Motor Vehicle 1 to the Applicant and provide the Applicant with copies of all documents in her possession (if any) relating to the registration or ownership of Motor Vehicle 1.
4.The Respondent retain for her sole use and benefit to the exclusion of the Applicant, all of her right title and interest in Motor Vehicle 2.
5.The Applicant retain for his sole use and benefit to the exclusion of the Respondent all superannuation currently in his name.
6.Pursuant to s. 106A of the Family Law Act 1975 (Cth), should either party fail to execute a deed or instrument necessary to…
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CaseChat Overview and Summary
The court held that the TPD payment should not be considered a contribution by Ms Blazena, given her serious health conditions and the circumstances under which the payment was received. The court further found that the house, purchased with the TPD payment, should remain in Ms Blazena’s sole use and benefit, given her future needs and health conditions. The vehicles were divided such that the respondent retained one, while the applicant retained the other. The applicant was to retain his superannuation, while the respondent retained hers. The court also authorised the execution of necessary documents by a Judicial Registrar or Mr Michael Griese of Griese Lawyers if either party failed to comply with the orders.
The court's orders specified that Ms Blazena would retain the property at C Street, Town D, Victoria, and the applicant must withdraw the caveat lodged on it. Ms Blazena must transfer ownership of one vehicle to the applicant and retain another. The applicant must retain his superannuation, while the respondent retains hers. Both parties were to forgo claims to each other’s superannuation or related benefits. The form of the order was subject to entry in the Court’s records and potential review for minor errors or variations.
Orders
Orders of the court
MLC 125 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR EARLMAN
Applicant
AND:
MS BLAZENA
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
27 JULY 2023
THE COURT ORDERS THAT:
1. The Respondent retain for her sole use and benefit to the exclusion of the Applicant, all of her right title and interest in the real property situated at and known as C Street, Town D, Victoria registered in her name and more particularly described in certificate of title VOLUME … FOLIO … (Town D property).
2. The Applicant, within 21 days of the date of these orders, at his expense, do all necessary acts and things and sign all necessary documents including any deed or instrument as may be required to withdraw Caveat Number … (Caveat) lodged on the Town D property.
3. The Respondent, within 21 days of the date of these orders, at her expense, do all necessary acts and things and sign all documents including any deed or instrument as may be required to transfer registration and ownership of the Motor Vehicle 1 to the Applicant and provide the Applicant with copies of all documents in her possession (if any) relating to the registration or ownership of Motor Vehicle 1.
4. The Respondent retain for her sole use and benefit to the exclusion of the Applicant, all of her right title and interest in Motor Vehicle 2.
5. The Applicant retain for his sole use and benefit to the exclusion of the Respondent all superannuation currently in his name.
6. Pursuant to s. 106A of the Family Law Act 1975 (Cth), should either party fail to execute a deed or instrument necessary to comply with these Orders if practicable to do so, a Judicial Registrar of this Court is hereby authorised to execute the deed or instrument in the name of that person and do all acts and things necessary to give validity and operation to the deed or instrument.
7. Further to Order 6, if the Applicant fails to execute a deed or instrument necessary to comply with the Order to withdraw the Caveat in accordance with Order 2 if practicable to do so Mr Michael Griese of Griese Lawyers (Mr Griese) be engaged to execute such document or instrument and do all such things as may be necessary to withdraw the Caveat provided first that Mr Griese has filed an affidavit in this Court as to the Applicant’s failure to withdraw the Caveat in accordance with Order 2, and such affidavit to be sufficient proof of the Applicant’s non-compliance.
8. Unless otherwise specified in these orders:
(a) each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these orders; and
(b) each party forgo any claims he or she may have to any superannuation or related benefits (including the TPD Payment) belonging to or earned by the other.
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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