FEATHERSTONE & REYNOLDS - [2019] FCCA 3655

FEDERAL CIRCUIT COURT OF AUSTRALIA

FEATHERSTONE & REYNOLDS

[2019] FCCA 3655

Catchwords:
FAMILY LAW – Application for division of property – application out of time – application allowed – disputed de facto relationship – de facto relationship found – small pool – disability support pension – superannuation – contributions – adjustment factors – poor health of both parties – just and equitable – division of 12.5% in favour of the applicant.

Legislation:

Family Law Act 1975 (Cth), ss.4AA , 44, 90SB, 90SF, 90SM

Applicant:

MS FEATHERSTONE

Respondent:

MR REYNOLDS

File Number:

MLC 2003 of 2019

Judgment of:

Judge Riethmuller

Hearing dates:

15 and 16 August 2019

Date of Last Submission:

16 August 2019

Delivered at:

Melbourne

Delivered on:

13 December 2019

REPRESENTATION

The Applicant appeared in person.

The Respondent appeared in person.

ORDERS

Pursuant to section 90RD of the Family Law Act 1975 the Court declares the applicant and respondent were in a de facto relationship.
Pursuant to section 44(6) of the Family Law Act 1975 the applicant is granted leave to apply for property settlement orders after the end of the standard application period.
The respondent pay to the applicant either:
(a)12.5 per cent of the net proceeds of the sale of the property at B Street, Town C, provided the payment is made by 30 June 2020; or
(b)the sum of $20,625.
The applicant be granted a charge over the property securing her interest therein, pursuant to these orders.
The applicant not be at liberty to execute order 3(b) until the earlier of 1 July 2020 or the sale of the property at B Street, Town C.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the party occupying the property at the date of these orders).
(b)Insurance policies remain the sole property of the owner/beneficiary named thereon/in;
(c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders and;
(d)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All extant applications be dismissed and the matter be removed from the list of pending cases.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SHEPPARTON

MLC 2003 of 2019

MS FEATHERSTONE

Applicant

And

MR REYNOLDS

Respondent

REASONS FOR JUDGMENT

Background

The applicant brings proceedings seeking orders for the division of property pursuant to the Family Law Act1975 (Cth) (‘the Act’) as a result of a period of time…

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 FEATHERSTONE & REYNOLDS

Details

AGLC: FEATHERSTONE & REYNOLDS [2019] FCCA 3655
Case: [2019] FCCA 3655
Decision Date: 13 December 2019

CaseChat Overview and Summary

In FEATHERSTONE & REYNOLDS, heard by Judge Riethmuller, the applicant sought orders for property settlement following the breakdown of a de facto relationship. A key issue was whether the applicant should be granted leave to bring her application out of time, as the standard period for such applications had expired. The respondent disputed the existence of a de facto relationship.

The court was required to determine two primary legal issues: first, whether a de facto relationship existed between the parties, and second, if so, whether to grant the applicant leave to proceed with her property settlement application out of time. If leave was granted, the court would then need to consider the division of the parties' limited property pool, taking into account their respective contributions and circumstances, including their poor health and the applicant's disability support pension.

Judge Riethmuller found that a de facto relationship did exist between the parties and granted the applicant leave to proceed with her application out of time, pursuant to sections 90RD and 44(6) of the Family Law Act 1975 respectively. In determining the property division, the court considered the small pool of assets and the parties' respective contributions and health issues. The court ordered that the respondent pay the applicant 12.5 per cent of the net proceeds of the sale of a property located at B Street, Town C, by 30 June 2020, or alternatively, the sum of $20,625. The applicant was granted a charge over the property to secure her interest. The court also made orders regarding the division of other property, superannuation, and liabilities, severing any joint tenancies.

Orders

Orders of the court

Pursuant to section 90RD of the Family Law Act 1975 the Court declares the applicant and respondent were in a de facto relationship.

Pursuant to section 44(6) of the Family Law Act 1975 the applicant is granted leave to apply for property settlement orders after the end of the standard application period.

The respondent pay to the applicant either:

(a) 12.5 per cent of the net proceeds of the sale of the property at B Street, Town C, provided the payment is made by 30 June 2020; or

(b) the sum of $20,625.

The applicant be granted a charge over the property securing her interest therein, pursuant to these orders.

The applicant not be at liberty to execute order 3(b) until the earlier of 1 July 2020 or the sale of the property at B Street, Town C.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these orders:

(a) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the party occupying the property at the date of these orders).

(b) Insurance policies remain the sole property of the owner/beneficiary named thereon/in;

(c) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders and;

(d) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

All extant applications be dismissed and the matter be removed from the list of pending cases.

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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