EDDINGS & TANNERT - [2020] FCCA 2416

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDDINGS & TANNERT

[2020] FCCA 2416

Catchwords:
FAMILY LAW – Property – de facto relationship – assessment of contributions.

Legislation:

Family Law Act 1975 (Cth), ss.90SF, 90SM

Cases cited:

Robb & Robb [1994] FamCA 136

Stanford & Stanford [2012] HCA 52

Bevan & Bevan [2013] FamCAFC 19

Chapman & Chapman [2014] 2014 FamCAFC 91

Russell & Russell (1999) FLC 92-877

Scott & Danton [2014] FamCAFC 203

Peters & Walker [2015] FamCA 732

Teal & Teal [2010] FamCAFC 120

Applicant:

MR EDDINGS

Respondent:

MS TANNERT

File Number:

DUC 448 of 2018

Judgment of:

Judge Obradovic

Hearing date:

18 and 19 June 2020

Date of Last Submission:

24 July 2020

Delivered at:

Parramatta

Delivered on:

16 September 2020

REPRESENTATION

Counsel for the Applicant:

Ms Otrebski

Solicitors for the Applicant:

Osborne Legal

Counsel for the Respondent:

Mr Battley

Solicitors for the Respondent:

Warwick McCarthy & Co

ORDERS

On or before the expiration of 42 days from the date hereof the following is to occur simultaneously: -
(a)Mr Eddings (“applicant”) and Ms Tannert (“respondent”) shall do all acts and sign all documents as are necessary to transfer to the respondent, all the applicant’s right, title and interest in the property situate at B Street, City C in the state of New South Wales (“B Street, City C property”).
(b)The respondent is to refinance, pay out in full, discharge and transfer into her sole name, the mortgage secured over the B Street, City C property. The applicant and the respondent are to sign an authority and any other document required by the mortgagee to release the mortgage.
(c)The respondent is to pay to the applicant the amount of $182,789.
Pending the transfer of the B Street, City C property in Order 1(a) the respondent shall have the sole right to occupy the property and during such right of occupation, the respondent shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the settlement date.
Other than as otherwise set out in these Orders, the parties are declared to have the sole right title and interest in any property which is, at the date hereof, in their possession, title or name and they shall be solely liable for and indemnify each other against any personal liabilities, including but not limited to:
(a)Any other Real Estate in their name;
(b)Motor vehicles in their possession or name;
(c)Furniture, chattels and personal effects in their name or possession;
(d)Bank accounts and monies invested in their names in financial institutions, shares, life insurance and superannuation interests;
(e)Any debts and/or liabilities in their name; and
(f)Any other business they may own or operate.
The parties and each of them is ordered to do all acts and things and sign all documents to give effect to these Orders and, in the event of either party failing, neglecting or refusing to do any act or thing or sign any document which is required to give such effect,…

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 EDDINGS & TANNERT

Details

AGLC: Eddings and Tannert [2020] FCCA 2416
Case: [2020] FCCA 2416
Decision Date: 16 September 2020

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Obradovic presided over a property settlement dispute between Mr Eddings, the applicant, and Ms Tannert, the respondent, concerning assets acquired during their de facto relationship. The core of the disagreement revolved around the assessment and division of these contributions.

The court was required to determine how the parties' respective contributions to the relationship, both financial and non-financial, should be weighed in the division of their property. This included assessing contributions to the acquisition, conservation, and improvement of assets, as well as contributions to the welfare of the family.

Judge Obradovic's reasoning focused on the principles of assessing contributions under the relevant family law legislation. The court considered the direct financial contributions of each party, such as the acquisition of the B Street, City C property, and also non-financial contributions, including homemaking and parenting. The court then applied these assessed contributions to determine a just and equitable distribution of the parties' net property pool.

The orders made by the court stipulated that the B Street, City C property was to be transferred to the respondent, Ms Tannert, who was also ordered to refinance the existing mortgage and pay the applicant, Mr Eddings, a sum of $182,789. Pending the property transfer, Ms Tannert was granted sole occupation and responsibility for the property's outgoings. The parties were otherwise to retain sole ownership of assets and liabilities in their respective names, with provisions made for the execution of documents to give effect to the orders.

Orders

Orders of the court

On or before the expiration of 42 days from the date hereof the following is to occur simultaneously: -

(a) Mr Eddings (“applicant”) and Ms Tannert (“respondent”) shall do all acts and sign all documents as are necessary to transfer to the respondent, all the applicant’s right, title and interest in the property situate at B Street, City C in the state of New South Wales (“B Street, City C property”).

(b) The respondent is to refinance, pay out in full, discharge and transfer into her sole name, the mortgage secured over the B Street, City C property. The applicant and the respondent are to sign an authority and any other document required by the mortgagee to release the mortgage.

Pending the transfer of the B Street, City C property in Order 1(a) the respondent shall have the sole right to occupy the property and during such right of occupation, the respondent shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the settlement date.

Other than as otherwise set out in these Orders, the parties are declared to have the sole right title and interest in any property which is, at the date hereof, in their possession, title or name and they shall be solely liable for and indemnify each other against any personal liabilities, including but not limited to:

(a) Any other Real Estate in their name;

(b) Motor vehicles in their possession or name;

(d) Bank accounts and monies invested in their names in financial institutions, shares, life insurance and superannuation interests;

(e) Any debts and/or liabilities in their name; and

(f) Any other business they may own or operate.

The parties and each of them is ordered to do all acts and things and sign all documents to give effect to these Orders and, in the event of either party failing, neglecting or refusing to do any act or thing or sign any document which is required to give such effect, the Registrar of the Federal Circuit Court is appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) as amended to do such act or thing or sign such document in the name of defaulting party and on that party’s behalf.

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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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