FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eden & Eden (No 2) [2024] FedCFamC2F 1291
File number(s): SYC 5080 of 2017 Judgment of: JUDGE STREET Date of judgment: 18 September 2024 Catchwords: FAMILY LAW - PROPERTY – de facto relationship – 20 years – 2 daughters – relationship ended March 2009 - ongoing financial connection with joint property- de facto husband acquired whole of joint property as a result of debtor’s petition by de facto wife- proceedings commenced 2017 – unfortunate procedural history- alteration of property interests under s90SM – orders for payment of $75,000 and otherwise sale of property Legislation: Family LawAct 1975 (Cth) Cases cited: AJO & GRO (2005) FLC 93-218
Dickons & Dickons [2012] FamCAFC 154
DJM v JLM (1998) FLC 92-816
Dovgan & Dovgan [2021] FamCA 306
Estate of Gardner [2019] NSWSC 1324
Fairbairn v Radecki [2022] HCA18
Fitzmaurice & Woolridge [2020] FamCAFC 64
Hickey and Hickey and Attorney-General (Cth) (Intervener) [2003] FamCA 395
Jabour & Jabour [2019] FamCAFC 78
Kowaliw & Kowaliw (1981) FLC 91-092
Townsend & Townsend (1995) FLC 92-569
Division: Division 2 Family Law Number of paragraphs: 197 Date of hearing: 3 September 2024 and 4 September 2024 Place: Sydney Solicitor for the Applicant: Mr M Di Lizio of Di Lizio & Associates Counsel for the Respondent: Ms E Clifton Solicitor for the Respondent: Blumberg Family Lawyers ORDERS
SYC 5080 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EDEN
Applicant
AND: MR EDEN
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
4 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to Part VIIIAB of the Family Law Act 1975 (Cth), the Court declares that the applicant and the respondent were in a de facto relationship from 1989 until March 2009.
2.The Court declares that is just and equitable that there be an alteration of property interests between the applicant and the respondent.
3.Pursuant to section 90SM of the Family Law Act 1975 (Cth), that the alteration of property interests be affected by the respondent paying the applicant the sum of $75,000.00 within 90 days.
4.If Order 3 is not complied with, the Property situated at B Street, Town C, NSW and more particularly described in Certificate of Title Folio Identifier … (“the property) be sold at auction within 60 days.
5.The respondent be responsible for the conduct of the sale of the property.
6.The respondent must do all acts and things and sign all necessary documents to effect the sale of the property as follows:
a.The property is to be listed for sale with such real estate agent selected by the respondent alone within 14 days of the failure to comply with Order 3.
b.The respondent is to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonable requested by the agent and ensuring that…
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CaseChat Overview and Summary
The court found that Ms Eden and Mr Eden had been in a de facto relationship as defined by the Family Law Act. The court also found that an alteration of property interests was just and equitable, considering the length of their relationship and their ongoing financial connection. The court ordered Mr Eden to pay Ms Eden $75,000 within 90 days, or alternatively, the joint property would be sold, and the proceeds would be distributed according to the court's directions. The court specified the procedure for the sale of the property, including the selection of a real estate agent, the conduct of the sale, and the distribution of the sale proceeds. The court reserved its written reasons for judgment and set a timeline for any appeal or costs dispute to commence only after the publication of the written reasons.
The court's orders include the declaration of the de facto relationship, the alteration of property interests, a payment order of $75,000, a sale order if the payment is not made, and detailed instructions for the sale process. The court also reserved its written reasons and outlined the procedure for any costs dispute. The orders ensure that the property interests are adjusted fairly, taking into account the duration of the relationship and the financial ties that remained after its end.
Orders
Orders of the court
SYC 5080 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS EDEN
Applicant
AND:
MR EDEN
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
4 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. Pursuant to Part VIIIAB of the Family Law Act 1975 (Cth), the Court declares that the applicant and the respondent were in a de facto relationship from 1989 until March 2009.
2. The Court declares that is just and equitable that there be an alteration of property interests between the applicant and the respondent.
3. Pursuant to section 90SM of the Family Law Act 1975 (Cth), that the alteration of property interests be affected by the respondent paying the applicant the sum of $75,000.00 within 90 days.
4. If Order 3 is not complied with, the Property situated at B Street, Town C, NSW and more particularly described in Certificate of Title Folio Identifier … (“the property) be sold at auction within 60 days.
5. The respondent be responsible for the conduct of the sale of the property.
6. The respondent must do all acts and things and sign all necessary documents to effect the sale of the property as follows:
a. The property is to be listed for sale with such real estate agent selected by the respondent alone within 14 days of the failure to comply with Order 3.
b. The respondent is to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonable requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
c. The reserve price for the property shall be the price nominated by the real estate agent selected by the respondent;
d. An independent solicitor or conveyancer is to have the conduct of the sale on behalf of the parties, and is to be selected by the respondent;
e. The respondent is authorised to negotiate with the highest bidder at the auction, in the event the reserve price is not reached, and is authorised to sell the property and enter a contract of sale with the proposed purchaser even if the property does not reach the reserve price.
7. Upon sale of the property, the proceeds of sale shall be paid in the following manner and priority:
a. To discharge the mortgage to Commonwealth Bank of Australia;
b. Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
c. Payment of the legal costs relating to the sale; and
d. The balance to be divided:
i. $75,000 to the applicant; and
ii. The balance to the respondent
8. That the parties retain all their right title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.
9. That other than as otherwise set in the above orders the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name.
10. The Court reserves its written reasons.
11. Preserves the time for any appeal so that it is not to commence until the publication of the written reasons.
BY CONSENT, THE COURT ORDERS THAT:
12. The Court dispenses the need with an oral hearing in respect of any costs dispute, including any reserved costs and directs that after the publication of the Court’s written reasons, any application for costs or reserved costs be advanced by written submissions and any affidavit evidence filed and served by the party moving for the same within 14 days of the date of publication for written reasons and the opposing party have a further 14 days to file and serve any affidavit or submissions in relation to costs, and if there is a fresh issues raised, a further 7 days for reply by the party contending that a fresh issue has been raised.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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