FAMILY LAW – PROPERTY – Both parties wish to retain the matrimonial home – possibility of selling the former matrimonial home for a greater amount than it is valued in the proceedings – range of possible valuations – addbacks – parties signed a Heads of Agreement – whether court bound by prior agreement of the parties.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS FARNHAM
Applicant
AND:
MR FARNHAM
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Ms FARNHAM (“the Wife”) and Mr FARNHAM (“the Husband”) will immediately do all acts and things necessary to sell the property situated and known as B Street, Town C in Tasmania and comprised in Certificate of Title Volume … Folio … (“the B Street, Town C property”) and to that end:
a.Both parties will list the B Street, Town C property with D Real Estate for a price not less than $450,000.00;
b.Both parties will follow the reasonable advice of the Real Estate Agent engaged to sell the B Street, Town C property;
c.The Husband will, at his expense, (noting that such expense will be reimbursed to him from the proceeds of sale of the B Street, Town C property), undertake in a timely fashion all reasonable maintenance, repairs and improvements to the presentation of the B Street, Town C property as recommended by D Real Estate and agreed to by the Wife;
d.The Husband will make the B Street, Town C property available for inspection by potential purchasers at times nominated by D Real Estate, including for open homes…
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.
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Details
AGLC
Farnham & Farnham [2022] FedCFamC2F 83
Case
[2022] FedCFamC2F 83
Decision Date
CaseChat Overview and Summary
Ms Farnham commenced proceedings against Mr Farnham in the Federal Circuit Court of Australia seeking a property settlement and parenting orders. The parenting orders were finalised by consent on 27 January 2021, leaving only the property settlement to be determined. The Court heard the matter over two days, on 14 July 2021 and 30 August 2021. Both parties made submissions as to the fate of the former matrimonial home at B Street, Town C, and as to whether there should be an adjustment of property interests pursuant to s 79 of the Family Law Act 1975 (Cth). The Court determined that the parties’ property interests should be adjusted, and ordered that the B Street, Town C property be sold. The Court further determined that the Wife should receive 55% of the non-superannuation property and an equal division of superannuation property. The Court ordered that the Husband retain the Kubota excavator, boat trailer, motors, motorbike and ATV with a total value of $21,950.00, while the Wife retains the Motor Vehicle 1 and chainsaw with a total value of $10,200.00. The Court ordered that the parties sell the Kubota ride-on mower, the tractor and implements, caravan, cows and the cattle scales, and that the proceeds be divided equally. The Court also ordered that $67,242.00 of the Husband’s superannuation interest be paid to the Wife.