Elders & Hewitt (No 4) - [2022] FedCFamC2F 686

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Elders & Hewitt (No 4) [2022] FedCFamC2F 686

File number(s): DNC 584 of 2020

Judgment of: JUDGE YOUNG

Date of judgment: 30 May 2022

Catchwords: FAMILY LAW - where the property pool is relatively limited - where the husband is incarcerated - where prolonged and serious family violence made the contributions of the wife more arduous - Court satisfied it is appropriate to make adjustment in favour of the wife

Legislation:
Child Support (Assessment) Act 1989

Evidence Act 1995 (Cth) s 157

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Barbey & Tuttle [2013] FamCAFC 44

Kennon v Kennon (1997) FLC 92-757

Division: Division 2 Family Law

Number of paragraphs: 55

Date of hearing: 25 March 2022

Place: Darwin

Counsel for the Applicant: Mr Williams

Solicitor for the Applicant: Ms Collier of Collier Lawyers

Counsel for the Respondent: Mr Lipert

Solicitor for the Respondent: Ms Gray of Gray’s Legal
ORDERS

DNC 584 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ELDERS

Applicant

AND:
MR HEWITT

Respondent

ORDER MADE BY:

JUDGE YOUNG

DATE OF ORDER:

30 MAY 2022

THE COURT ORDERS THAT:
1.The Applicant retain as her property absolutely:
(a)The property at, and nett proceeds of the sale of, B Street, City C QLD;
(b)The property at, and nett proceeds of the sale, of D Street, Town E QLD;
(c)The 5 shipping containers and contents currently located at F Street, Town G QLD;

2.To give effect to Order 1(a) and (b) the Applicant and the Respondent shall forthwith do all acts and things and sign all necessary documents to effect the sale of the properties at B Street, City C QLD and D Street, Town E QLD (“the Properties”) by private treaty or auction as follows:
(a)Within 14 days of the date of these Orders, unless already listed, the Properties shall be listed with a sales agent nominated by the applicant.
(b)The listing price (if applicable) or reserve shall be nominated by the applicant.
(c)The applicant shall accept any offer that is at least 90% of the listing price or reserve.

3.Pursuant to s106A of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all documents on behalf of the Respondent to give effect to the sale of the Properties, notwithstanding the Respondent has not been first requested to sign any documentation.
4.Upon settlement of the sale of the Properties, the proceeds of sale shall be distributed as follows:
(a)All costs and expenses of sale, including legal costs and disbursements, agent’s commission, conveyancer’s fees (including repayment of any such expenses as have been paid by either or both of the parties);
(b)The amount required to discharge any mortgage currently encumbering the Properties;
(c)The amounts required to pay all municipal and water rates outstanding with respect to the Properties;
(d)The balance…

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 Elders & Hewitt (No 4)

Details

AGLC: Elders & Hewitt (No 4) [2022] FedCFamC2F 686
Case: [2022] FedCFamC2F 686
Decision Date

CaseChat Overview and Summary

This case involved an application brought by the wife for alteration of property interests under section 90SM of the Family Law Act 1975. The wife sought to retain ownership of certain properties and chattels while the husband opposed her application. The court was required to determine the value of the assets in the property pool, the contributions of the parties during the relationship, and the appropriate division of the property in light of the relevant s 90SF(3) factors. The court found the wife to be a credible witness and accepted her evidence about the value of the assets and her contributions during the relationship. The court rejected the husband’s evidence as lacking credibility and inconsistent. The court found that the wife’s contributions during the relationship were made significantly more arduous by the husband’s prolonged and serious family violence. The court took into account the future needs of the children and the husband’s ability to contribute to those needs while he is incarcerated. The court made orders that the wife retain ownership of the properties and chattels she sought to retain and that the husband contribute a substantial sum towards the future support of the children. The court ordered that the whole of the non-superannuation property be transferred to the wife and that the proceeds of sale after payment of the liabilities be retained by her. The court also ordered that the husband retain his superannuation interests. The effect of the adjustment was that the wife received 93.1% of the non-superannuation property and the husband received 6.9%. The court was satisfied that this result was just and equitable.

Orders