Fleming and Fleming - [2017] FamCA 520

FAMILY COURT OF AUSTRALIA

FLEMING & FLEMING

[2017] FamCA 520

FAMILY LAW – PROPERTY SETTLEMENT – Where there was little disparity between the parties’ initial capital contributions – Where nothing differentiated their combined financial and non-financial contributions during the relationship – Where the dispute devolved to analysis of their respective access to matrimonial finances after separation – Where the wife applied joint funds towards advance payment of the mortgage over the former matrimonial home when she had the benefit of exclusive occupation of the home – Where the husband used joint funds to set up a separate household – Concluded none of the parties’ expenditure was unreasonable or profligate – Where the wife will have the more onerous responsibility for the care of the children until they attain their majority and financial independence – Where the wife’s future earning capacity is superior to the husband’s – Concluded the wife’s entitlement to property and superannuation is assessed at 55 per cent and the husband’s at 45 per cent

Family Law Act 1975 (Cth), ss 75, 79

Balfour v Balfour [1919] 2 KB 571
Chorn v Hopkins (2004) FLC 93-204
Cohen v Cohen (1929) 42 CLR 91
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Marriage of Coghlan (2005) 33 Fam LR 414
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Fleming

RESPONDENT:

Mr Fleming

FILE NUMBER:

SYC

2944

2013

DATE DELIVERED:

20 July 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

26 & 27 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Mervyn Finlay Thorburn & Marshall

Orders

The wife shall pay to the husband the sum of $675,746 within two months of the date hereof.
Subject to compliance with Order 1 hereof, and in consideration of that payment, the wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as F Street, Suburb G, NSW (“the property”), and the husband shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife contemporaneously with his receipt of payment pursuant to Order 1 hereof.
Subject to compliance with Order 2 hereof, and in consideration of that transfer, the wife shall do all acts and things necessary to discharge the mortgage in favour of the NAB registered against the title of the property (being dealing number …) and indemnify the husband against all rates, taxes, statutory charges, and other outgoings and liabilities affecting or relating to the property.
In default of Order 1 hereof, the parties shall do all such acts and things and sign all such documents as may be necessary to list the property for sale by public auction on the following terms:

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 Fleming and Fleming

Details

AGLC: Fleming and Fleming [2017] FamCA 520
Case: [2017] FamCA 520
Decision Date: 20 July 2017

CaseChat Overview and Summary

This matter came before Austin J of the Family Court of Australia concerning the division of property between a husband and wife. The primary dispute revolved around the ownership and disposition of a property located at F Street, Suburb G, NSW. The court was tasked with determining how this asset, along with other marital assets and liabilities, should be divided between the parties.

The court was required to determine the legal and beneficial ownership of the F Street property and to establish a mechanism for its transfer or sale. Furthermore, the court needed to address the discharge of a mortgage registered against the property and the allocation of other marital assets and debts between the parties. The orders also contemplated a default scenario where the property might need to be sold by public auction, and the subsequent distribution of sale proceeds.

Austin J ordered that the wife pay the husband a sum of $675,746 within two months. Upon this payment, the wife would become the sole legal and beneficial owner of the F Street property, and the husband was to transfer his interest accordingly. The wife was also to discharge the existing mortgage and indemnify the husband against all outgoings related to the property. In the event of the wife's default in payment, the property was to be listed for sale by public auction, with specific terms regarding the auctioneer, reserve price, and subsequent sales if the property remained unsold. The proceeds of any sale were to be applied first to sale costs and rates, then to discharge the mortgage, followed by a specific distribution to the wife and then a division of the remaining balance. All other assets were to remain with the party in possession, and each party was to be solely liable for their respective debts. The Registrar of the Family Court was empowered to execute documents on behalf of the parties if necessary.

Orders

Orders of the court

The wife shall pay to the husband the sum of $675,746 within two months of the date hereof.

Subject to compliance with Order 1 hereof, and in consideration of that payment, the wife is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising Folio Identifier …, being the property more commonly known as F Street, Suburb G, NSW (“the property”), and the husband shall do all such things and sign all such documents as may be necessary to transfer all his right, title, and interest in the property to the wife contemporaneously with his receipt of payment pursuant to Order 1 hereof.

Subject to compliance with Order 2 hereof, and in consideration of that transfer, the wife shall do all acts and things necessary to discharge the mortgage in favour of the NAB registered against the title of the property (being dealing number …) and indemnify the husband against all rates, taxes, statutory charges, and other outgoings and liabilities affecting or relating to the property.

In default of Order 1 hereof, the parties shall do all such acts and things and sign all such documents as may be necessary to list the property for sale by public auction on the following terms:

(a) The property shall be listed for auction sale within six weeks of the date of default;

(b) The auctioneer, in the event of disagreement between the parties, shall be the auctioneer chosen by ballot from the respective choices of the parties;

(c) The reserve price shall be as agreed between the parties, and in the event of disagreement between the parties, the reserve price nominated by the auctioneer;

(d) In the event the property is not sold by auction, or private negotiation within a further seven days, then the property shall be submitted to successive auctions within further six weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction;

(e) The wife is restrained from charging, mortgaging, or otherwise encumbering the property, save as to enable her compliance with Order 1 hereof.

Upon completion of the sale of the property pursuant to Order 4 hereof, the parties shall ensure the proceeds of sale are disbursed as follows:

(a) First, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property;

(b) Secondly, to discharge the mortgage registered over the property; and

(i) The sum of $111,968 to the wife;

(ii) 55 per cent of the remaining balance to the wife; and

(iii) The remainder to the husband.

Otherwise:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant; and

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of the orders made under Part VIII, the Registrar of the Family Court of Australia at Sydney is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.

Costs are reserved for 28 days.

Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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