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Ferman & Lapham

Ferman & Lapham

Case [2022] FedCFamC2F 415 5 April 2022

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ferman & Lapham [2022] FedCFamC2F 415

File number(s): NCC 1719 of 2017

Judgment of: JUDGE KEARNEY

Date of judgment: 5 April 2022

Catchwords: FAMILY LAW – property adjustment and spousal maintenance – de facto relationship of about four years – global approach to considering contributions – holistic approach to property adjustment which is just and equitable – overarching purpose

Legislation:
Family Law Act 1975 (Cth) ss 90SF, 90SM

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190 & 191

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Benson & Drury [2020] FamCAFC 303

Bevan & Bevan [2013] FamCAFC 116

Fields & Smith [2015] FamCAFC 57

Grier & Malphas [2016] FamCAFC 84

Hall & Hall [2016] HCA 23

In the Marriage of Weir (1992) 16 Fam LR 15

Koch & Kest [2021] FamCA 408

Pierce v Pierce [1998] FamCA 74

Stanford v Stanford [2012] HCA 52

Wallis & Manning [2017] FamCAFC 14

Division: Division 2 Family Law

Number of paragraphs: 360

Date of last submission/s: 24 February 2022

Date of hearing: 21-24 February 2022

Place: Newcastle

Counsel for the Applicant: Mr Rugendyke

Solicitor for the Applicant: Joplin Family Lawyers

Counsel for the Respondent: Mr Page QC and Mr Kelly

Solicitor for the Respondent: Catherine Henry Partners

ORDERS

NCC 1719 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FERMAN

Applicant

AND:
MR LAPHAM

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

5 APRIL 2022

THE COURT ORDERS THAT:
1.By way of property adjustment, no later than 5 July 2022, MR LAPHAM (‘the de facto husband’) shall pay to MR LAPHAM (‘the de facto wife’) the sum of four hundred and eleven thousand, six hundred dollars ($411,400) by way of Joplin Lawyers Trust Account BSB …, …87.
2.In the event the de facto husband does not make the payment to the de facto wife in accordance with Order 1, the following will apply:
(a)The de facto wife is appointed as the sole trustee in relation to the sale of the properties at D Street, Suburb E (title reference …), F Street, Town G (title reference …) and H Street, Suburb J (title reference … ) all in the State of New South Wales (‘the properties’).
(b)The de facto wife shall take all steps and execute all necessary documents to cause the properties to be listed with a real estate agent and sold by private treaty.
(c)The properties shall be sold for a price agreed between the de facto wife and the agent.
(d)The proceeds from the sale of the properties shall be distributed in the following manner and priority:
(i)Payment of agents’ commission, fees and expenses (if any) due on the sale;
(ii)Payment of any legal costs and other usual conveyancing adjustments of the sale;
(iii)Payment of the mortgage and other encumbrances affecting the property;
(iv)Payment as to the balance then remaining –
1.to the de facto wife an…

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 Ferman & Lapham

Details

AGLC: Ferman & Lapham [2022] FedCFamC2F 415
Case: [2022] FedCFamC2F 415
Decision Date

CaseChat Overview and Summary

The case of Ferman & Lapham involved a dispute between the de facto wife and the de facto husband regarding property adjustment and spousal maintenance. The de facto wife sought a property adjustment order, a lump sum spousal maintenance payment, and an injunction to prevent the de facto husband from further encumbering certain properties. The de facto husband, on the other hand, sought a property adjustment order, dismissal of the spousal maintenance application, and declarations regarding the retention of their respective property interests. The court was required to decide on the appropriate property adjustment, the amount of spousal maintenance, and the allocation of costs.

In its judgment, the court determined that the de facto relationship had endured for about four years, and a global approach to considering the parties' contributions was more convenient. The court found that the de facto husband had made significant financial and non-financial contributions to the relationship, while the de facto wife's contributions were limited. The court ordered a property adjustment of 85% to the de facto husband and 15% to the de facto wife. The court also awarded a lump sum spousal maintenance payment of $47,000 to the de facto wife.

The court further decided to list a costs hearing to address the parties' competing claims for costs, taking a holistic approach to ensure an efficient use of resources. The court also made observations on the overarching purpose of civil practice and procedure provisions, emphasizing the importance of conducting proceedings in a manner consistent with the overarching purpose to facilitate just, quick, inexpensive, and efficient resolution of disputes.

Orders