Farina & Siang - [2023] FedCFamC2F 665

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farina & Siang [2023] FedCFamC2F 665

File number(s): PAC 5556 of 2014

Judgment of: JUDGE NEWBRUN

Date of judgment: 1 June 2023

Catchwords: FAMILY LAW – PROPERTY– Just and equitable property Orders made.

Legislation: Family Law Act 1975 (Cth) ss 72(2), 79

Cases cited:
Bevan v Bevan (2013) 49 Fam LR 387

Lotta & Lotta [2017] FamCA 50

Robb & Robb (1995) FLC 92-555

Division: Division 2 Family Law

Number of paragraphs: 239

Date of hearing: 8–10 May 2023

Place: Parramatta

Counsel for the Applicant: Ms Gibbons

Solicitor for the Applicant: Stewart Law Pty Ltd

Counsel for the Respondent: Mr Breeze

Solicitor for the Respondent: Prime Lawyers
ORDERS

PAC 5556 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FARINA
Applicant

AND:
MS SIANG
Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

1 June 2023

THE COURT ORDERS THAT:
1.The wife shall pay to the husband the sum of $109,825 within 3 months.
2.Failing the wife’s compliance with the above Order, then the parties will do all acts and things necessary to list the property at B Street, Suburb C (‘the property’) for sale, in such manner and for such sum as agreed between the parties and failing agreement, as determined by the Real Estate Institute of NSW, and to sell the property for the best price reasonably obtainable.
3.That upon the sale of the property, the parties shall distribute the proceeds of sale in the following manner and priority:
(a)In discharge of the mortgage to Westpac Bank secured over the property;
(b)In payment of agent’s commission and expenses on the sale;
(c)In payment of the legal costs and disbursements and other agreed costs associated with the sale;
(d)In adjustment of rates, levies and taxes on the property;
(e)In payment of the balance remaining as follows:
(i)$109,825 to the husband less his half share of the expenses in (b)–(d) above,
(ii)$533,175 to the wife less her half share of the expenses in (b)–(d) above.

4.The husband shall do all reasonable acts and things to cause the Caveat secured by L Law Firm Barristers and Solicitors over the property to be removed. If, despite such reasonable action by the husband, such Caveat is not removed, the husband shall then contact the wife’s lawyers and inform them accordingly. If the wife has to issue a Lapsing Notice against L Law Firm Barristers and Solicitors to effect the Caveat’s removal, the husband shall pay 50 per cent of the legal fees associated with the Lapsing Notice proceedings.
5.Subject to the above Orders, the husband shall be solely responsible for the following liabilities and will keep the wife indemnified in relation to these liabilities:
(a)The mortgage secured over the M Street, Suburb N property through Company O, account …43;
(b)Child Support Agency arrears in relation to the children, X and Y;
(c)Any tax liability owed to Australia Taxation Office;
(d)Unpaid legal fees owed to L Law Firm Barristers and Solicitors;…

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 Farina & Siang

Details

AGLC: Farina & Siang [2023] FedCFamC2F 665
Case: [2023] FedCFamC2F 665
Decision Date

CaseChat Overview and Summary

The matter of Farina & Siang was a final property hearing before Judge Newbrun in the Federal Circuit and Family Court of Australia (Division 2). The husband sought orders for the sale of a property at B Street, Suburb C and for the proceeds of sale to be divided equally. The wife sought orders that the husband retain his property at M Street, Suburb N and that the wife retain her property at B Street, Suburb C. The Court was required to determine the property interests of the parties in accordance with the Family Law Act 1975. The Court considered the contributions of the parties during their marriage, their respective assets and liabilities, and the principles of justice and equity. The Court found that the husband had contributed significantly to the renovation of the property at B Street, Suburb C and that the parties had contributed approximately equally during their marriage. The Court assessed the wife’s contribution at 55% and the husband’s contribution at 45% of the net assets. The Court rejected both parties’ submissions that they were entitled to an adjustment under s 75(2) of the Act. The Court concluded that it was just and equitable to order the sale of the property at B Street, Suburb C, with the net proceeds to be distributed in accordance with the Court’s contribution assessment. The wife was ordered to pay the husband $109,825 within 3 months, failing which the property was to be sold and the proceeds distributed between the parties. The Court made further orders in relation to the distribution of the parties’ respective properties and liabilities.

Orders