EWING & BURST - [2015] FCCA 1035

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWING & BURST

[2015] FCCA 1035

Catchwords:
FAMILY LAW – Property – de facto relationship – dispute over the length of the relationship – where the de facto wife made no direct financial contributions – the future needs of the parties given a significant disparity in age – where the de facto wife will have the sole ongoing care of the child of the relationship given the de facto husband’s age and health.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 90SB, 90SF, 90SM, 90ST
Federal Circuit Court Rules 2001, r.11.12
Succession Act 2006 (NSW)

Aleksovski & Aleksovski (1996) FLC 92-705 (at 83,437)
Clune v Collins Angus and Robertson Publishers Pty Ltd (1992) 25 IPR 246 (Federal Court of Australia)
Dahl & Hamblin [2011] FamCAFC 202
Dickson & Dickson (1999) FLC 92-843
Fenton & Marvel [2013] FamCAFC 132
G & G (1984) FLC 91-582
Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
In the Marriage of Clauson (1995) FLC 92-595
Jones v Dunkel (1959) 101 CLR 298
Kennon v. Kennon (1997) FLC 92-757
Norbis & Norbis (1986) 161 CLR 513
Pavey & Pavey (1976) FLC 90-051
Pierce & Pierce (1999) FLC 92-844
Russell & Russell (1999) FLC 92-877
Sippel & Sippel [2004] FamCA 201
Stanford v Stanford [2012] HCA 52
Tomasetti & Tomasetti (2000) FLC 93-023

Applicant:

MS EWING

Respondent:

THE NEW SOUTH WALES TRUSTEE & GUARDIAN AS LITIGATION GUARDIAN FOR MR BURST

File Number:

CRC 206 of 2013

Judgment of:

Judge Kemp

Hearing dates:

15, 16 & 17 April 2015

Heard at:

Coffs Harbour

Date of Last Submission:

17 April 2015

Delivered at:

Sydney

Delivered on:

24 April 2015

REPRESENTATION

Counsel for the Applicant:

Ms Carty

Solicitors for the Applicant:

Burridge Harris & Flynn Solicitors

Counsel for the Respondent:

Mr S Priestley

Solicitors for the Respondent:

Conroy Stewart Spagnolo

THE COURT ORDERS THAT:

The Court declares that pursuant to s.90RD of the Family Law Act 1975 (“the Act”) a de facto relationship, as defined in s.4AA of the Act, existed between the applicant as the de facto wife (“the wife”) and the respondent as the de facto husband (“the husband”), from (omitted) 2005 to 8 September 2012, for a period of 7 years and 5 months.
Within 7 days of the date of these orders, the New South Wales Trustee & Guardian as litigation guardian for the husband, pay to the wife the sum of $18,500.00 out of the moneys held by it on behalf of the husband.
The parties and the New South Wales Trustee & Guardian as litigation guardian for the husband take all necessary steps and execute all necessary documents to cause the property situated at and known as Property D, New South Wales (“the Property D property”) to be sold by private treaty at the earliest possible date at a price agreed on between the parties and the New South Wales Trustee & Guardian as litigation guardian for the husband and, failing such agreement, as determined…

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 EWING & BURST

Details

AGLC: Ewing and Burst [2015] FCCA 1035
Case: [2015] FCCA 1035
Decision Date: 24 April 2015

CaseChat Overview and Summary

In the matter of EWING & BURST, the applicant (referred to as the wife) and the respondent (referred to as the husband), represented by his litigation guardian, the New South Wales Trustee & Guardian, brought proceedings before Judge Kemp of the Federal Circuit Court of Australia. The core of the dispute concerned the division of property following the dissolution of a de facto relationship.

The court was required to determine whether a de facto relationship existed between the parties and, if so, to make orders for the division of their property. Specifically, the court needed to ascertain the duration of the de facto relationship and to make appropriate orders regarding the distribution of assets, including a specific property and other personal effects.

The court declared that a de facto relationship, as defined by section 4AA of the *Family Law Act 1975* (Cth), existed between the wife and the husband for a period of 7 years and 5 months, concluding on 8 September 2012. Pursuant to section 90RD of the Act, the court ordered the husband's litigation guardian to pay the wife $18,500 from the husband's funds. Furthermore, the court ordered the sale of a property known as Property D, with the proceeds to be disbursed after sale expenses, with 43.7% allocated to the wife and the balance to the husband. Provisions were made for both private treaty and auction sales, including mechanisms for determining sale price and reserve price if agreement could not be reached. By consent, each party was to retain property currently in their possession, and the court made orders to facilitate the execution of necessary documents, including the appointment of the Registrar under section 106A of the Act if required. The court also stipulated a process for any application for costs, otherwise removing the matter from the active pending cases list.

Orders

Orders of the court

The Court declares that pursuant to s.90RD of the Family Law Act 1975 (“the Act”) a de facto relationship, as defined in s.4AA of the Act, existed between the applicant as the de facto wife (“the wife”) and the respondent as the de facto husband (“the husband”), from (omitted) 2005 to 8 September 2012, for a period of 7 years and 5 months.

Within 7 days of the date of these orders, the New South Wales Trustee & Guardian as litigation guardian for the husband, pay to the wife the sum of $18,500.00 out of the moneys held by it on behalf of the husband.

The parties and the New South Wales Trustee & Guardian as litigation guardian for the husband take all necessary steps and execute all necessary documents to cause the property situated at and known as Property D, New South Wales (“the Property D property”) to be sold by private treaty at the earliest possible date at a price agreed on between the parties and the New South Wales Trustee & Guardian as litigation guardian for the husband and, failing such agreement, as determined by the President of the New South Wales Division of the Australian Property Institute or nominee and that the proceeds of sale be disbursed as follows:

(a) Payment of agent’s commission, advertising expenses and legal expenses of the sale;

(b) 43.7% of the balance to the wife; and

That in the event that the Property D property fails to be sold by private treaty within a period of 3 months from the date of these orders then each party and the New South Wales Trustee & Guardian as litigation guardian for the husband take all necessary steps and execute all necessary documents to cause the Property D property to be sold at auction at the earliest possible date, with the reserve price to be agreed upon between the parties and the New South Wales Trustee & Guardian and, failing such agreement, as determined by the President of the New South Wales Division of the Australian Property Institute or nominee and that the proceeds of the said sale be disbursed as follows:

(a) Payment of agent’s commission, advertising expenses and legal expenses of the sale;

(b) 43.7% of the balance to the wife; and

By consent, except as otherwise provided in these orders, the husband and the wife are each entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

By consent, the husband and the wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

By consent, that each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of these orders and in the event that either party refuses or neglects to sign (within 14 days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to s.106A of the Act to execute such document on behalf of such party.

If either party seeks costs, then that party shall file and serve an appropriate application supported by any documentary material, within 28 days of today’s date, with a copy of the same to be forwarded to my Chambers. Any application made in accordance with this order be dealt with by way of written submissions, unless the parties wish to be heard orally. If no such application is made in accordance with this order, there be no order as to costs.

The matter is, otherwise, removed from the active pending cases list.

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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