Forman and Petchey - [2018] FCCA 535

FEDERAL CIRCUIT COURT OF AUSTRALIA

FORMAN & PETCHEY

[2018] FCCA 535

Catchwords:
FAMILY LAW – De facto relationship – challenge to jurisdiction – applicant asserting de facto relationship on 1 March 2009 and respondent denying
– evidence overwhelming – jurisdictional objection clearly not established – consideration of competing proposals about property division – applicant’s proposal clearly just and equitable in the unusual circumstances of the case.

Legislation:

Family Law Act 1975, ss.4AA, 44(6)

Cases cited:
Fenton & Marvel [2013] FamCAFC 132
Stanford v Stanford [2012] HCA 52

Applicant:

MS FORMAN

Respondent:

MR PETCHEY

File Number:

DGC 931 of 2016

Judgment of:

Judge Burchardt

Hearing dates:

7 & 8 February 2018

Date of Last Submission:

8 February 2018

Delivered at:

Dandenong

Delivered on:

26 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Sheen

Solicitors for the Applicant:

Guthrie & Associates

The Respondent:

In person

ORDERS

The Respondent forthwith pay the Applicant the sum of $15,000.
Within 60 days of the date of these Orders:
(a)the Respondent do all things and sign any such documents as required to transfer to the Applicant the real property situate at Property A (“the Property A property”), at the cost of the Applicant (the transfer); and
(b)both parties sign the Discharge Authority for the (omitted) Bank Mortgage, and the Applicant refinance the mortgage and indemnify the Respondent in respect of any liability associated with the Property A property.
That pending the transfer and payment:
(a)the Applicant will have sole occupation of the Property A property and be responsible for the payment of Water rates and utilities as and when they fall due;
(b)the Respondent shall be responsible for the payment of the mortgage and the Council rates, including any arrears, as and when they fall due; and
(c)neither party will, without the written consent of the other, further encumber the property.
That within 28 days of the date of these Orders, the Respondent will organise for the collection of all items from within and surrounding the garage at the Property A property. The Respondent will be responsible for leaving the garage area at the Property A property in a clean and tidy manner. The Respondent must attend with a truck to remove the items and organise for the attendance of the Police. In the event that the Respondent fails to remove items within and surrounding the garage at the Property A property within 28 days, having been given the opportunity to do so, the Applicant may dispose of all items at her sole discretion.
The Respondent be liable for and indemnify the Applicant against all payments in respect of any liability registered in his name.
The Applicant be liable for and indemnify the Respondent against all payments in respect of any liability registered in her name.
That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these of any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including…

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 Forman and Petchey

Details

AGLC: Forman and Petchey [2018] FCCA 535
Case: [2018] FCCA 535
Decision Date: 26 March 2018

CaseChat Overview and Summary

This matter concerned an application before Judge Burchardt in the Federal Circuit Court of Australia. The dispute involved the division of property and liabilities between the Applicant and the Respondent, who were parties to a marriage. The court was required to make orders concerning the transfer of real property, financial settlements, and the allocation of various assets and debts.

The court was tasked with determining the terms of a property settlement, including the disposition of a specific property identified as "Property A". This involved deciding on the payment of a sum of money, the transfer of ownership of Property A, the refinancing of a mortgage, and the allocation of responsibility for rates and utilities. Furthermore, the court needed to address the division of other personal property, including items located in a garage, and to make provisions for the indemnification of each party against liabilities registered in the other's name. The court also considered the severance of any joint tenancies and the disposition of superannuation benefits.

In reaching its decision, the court made detailed orders to effect a final property settlement. The Respondent was ordered to pay a sum of $15,000 to the Applicant and to transfer ownership of Property A to the Applicant, subject to the Applicant refinancing the associated mortgage and indemnifying the Respondent. Pending the transfer, the Applicant was granted sole occupation of Property A and responsibility for its water rates and utilities, while the Respondent was to pay the mortgage and council rates. The court also stipulated that neither party could further encumber the property without the other's consent. Provisions were made for the Respondent to remove items from the garage, with the Applicant having discretion to dispose of them if the Respondent failed to comply. The orders further clarified the entitlement of each party to other property in their possession, the forfeiture of claims to each other's superannuation, and the severing of joint tenancies. The court also appointed a Registrar to execute documents in the event of a party's default and ordered the defaulting party to pay costs.

Orders

Orders of the court

The Respondent forthwith pay the Applicant the sum of $15,000.

Within 60 days of the date of these Orders:

(a) the Respondent do all things and sign any such documents as required to transfer to the Applicant the real property situate at Property A (“the Property A property”), at the cost of the Applicant (the transfer); and

(b) both parties sign the Discharge Authority for the (omitted) Bank Mortgage, and the Applicant refinance the mortgage and indemnify the Respondent in respect of any liability associated with the Property A property.

That pending the transfer and payment:

(a) the Applicant will have sole occupation of the Property A property and be responsible for the payment of Water rates and utilities as and when they fall due;

(b) the Respondent shall be responsible for the payment of the mortgage and the Council rates, including any arrears, as and when they fall due; and

That within 28 days of the date of these Orders, the Respondent will organise for the collection of all items from within and surrounding the garage at the Property A property. The Respondent will be responsible for leaving the garage area at the Property A property in a clean and tidy manner. The Respondent must attend with a truck to remove the items and organise for the attendance of the Police. In the event that the Respondent fails to remove items within and surrounding the garage at the Property A property within 28 days, having been given the opportunity to do so, the Applicant may dispose of all items at her sole discretion.

The Respondent be liable for and indemnify the Applicant against all payments in respect of any liability registered in his name.

The Applicant be liable for and indemnify the Respondent against all payments in respect of any liability registered in her name.

That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these of any subsequent Orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Applicant; and the chattels and items located in and surrounding the garage at the Property A property being deemed to be in possession of the Respondent);

(b) each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

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

(e)

any joint tenancy of the parties in any real or personal property

be expressly severed.

In the event that any party refuses or neglects to comply with any provision of these Orders:

(a) a Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders; and

(b) the defaulting party pay all reasonable costs incurred by the other party for the purpose of exercising this Order.

For the purpose of Order 7 hereof, an affidavit setting out the defaulting party’s failure to comply with the Orders shall be sufficient evidence of neglect and default.

10.

There be liberty to apply to the parties in respect of implementation of these orders.

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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