Farmer and Panshin - [2013] FMCAfam 188

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARMER & PANSHIN

[2013] FMCAfam 188

FAMILY LAW – Property – de facto – partly undefended hearing – adjournment applications – assess contribution and future needs.

Family Law Act 1975, ss.4AA, 79A, 90SF, 90SM, 90SN
Federal Magistrates Court Rules, rr.13.03A, 13.03B, 13.03C, 16.05

Angelini & Angelini [2011] FamCAFC 190
Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175
Burke & Burke (1993) FLC 92-356
Hauff & Hauff (1986) FLC 91-747
Kennon & Kennon (1997) FLC 92-757
Farmer & Panshin [2012] FMCAfam 691
Panshin & Farmer [2012] FMCAfam 1107
Panshin & Farmer [2012] FamCAFC 197
Panshin & Farmer [2013] FMCAfam 96
Panshin & Farmer [2013] FamCAFC 16
Zane & Allen [2008] Fam CAFC 115

Applicant:

MS FARMER

Respondent:

MS PANSHIN

File Number:

SYC 2252 of 2011

Judgment of:

Altobelli FM

Hearing dates:

5 & 6 July 2012 and 15 February 2013

Date of Last Submission:

15 February 2013

Delivered at:

Sydney

Delivered on:

7 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

Stidwill Solicitors

Mr Ang on the first two days of hearing

No appearance by the Respondent on the third day of hearing

ORDERS

Subject to order 2 below, the applicant and respondent to forthwith do all things necessary to distribute the sale proceeds of the property at Property C as follows:
(a)To the applicant $50,506.60;
(b)To the respondent $76,993.40;
(c)To the applicant 39.6% of the amount then remaining, if any;
(d)To the respondent, the balance.
Order 1 is stayed for a period of seven (7) days to enable the respondent to bring an application under Federal Magistrate Court Rules r.16.05(2) if she so desires.
Each party otherwise retains sole ownership of all other property in their possession or control including their respective superannuation entitlements.
Any application for costs arising out of these proceedings proceed by way of written submissions not exceeding 750 words, with the applicant for costs to file and serve the same within 21 days, and the respondent within 21 days thereafter.
In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these Orders a Registrar of the Federal Magistrates Court in Sydney is hereby appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

IT IS NOTED that publication of this judgment under the pseudonym Farmer & Panshin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2252 of 2011

MS FARMER

Applicant

And

MS PANSHIN

Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application for alteration of property interests pursuant to s.90SM of the Family Law Act. The applicant is 35 years old and is an [occupation omitted]. The respondent is 42 years old and describes herself as a [occupation omitted]. They were…

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 Farmer and Panshin

Details

AGLC: Farmer and Panshin [2013] FMCAfam 188
Case: [2013] FMCAfam 188
Decision Date

CaseChat Overview and Summary

The parties, Ms Farmer and Ms Panshin, were in a de facto relationship which ended in December 2010. The applicant applied for an alteration of property interests pursuant to s.90SM of the Family Law Act. The legal issues the court needed to decide included when the relationship commenced, what assets were at cohabitation, and how contributions and future needs should be assessed under ss.90SM and 90SF. The matter proceeded to a final hearing on an undefended basis. The court declined to grant an adjournment application by the respondent and granted leave for the applicant to proceed on an undefended basis. The court found that the relationship commenced in October 2005, and assessed contributions and future needs based on the evidence presented. The court ordered the distribution of the sale proceeds of the property at [C] as follows: $50,506.60 to the applicant and $76,993.40 to the respondent. Each party otherwise retains sole ownership of all other property in their possession or control including their respective superannuation entitlements. Any application for costs arising out of these proceedings proceed by way of written submissions not exceeding 750 words. In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these Orders a Registrar of the Federal Magistrates Court in Sydney is hereby appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

Orders