FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Franklyn & Franklyn [2023] FedCFamC2F 353
File number(s): DUC 63 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – Final Property – matter remitted for hearing – short relationship – significant intermingling of funds – add-backs– waste – assessment of contributions – whether adjustment just and equitable Legislation: Family Law Act 1975 (Cth) ss. 75(2), 79 Cases cited: Bevan & Bevan [2013] FamCAFC 116
Chapman & Chapman [2014] FamCAFC 91
Franklyn & Franklyn [2021] FCCA 588
Franklyn & Franklyn (No. 1) [2021] FamCAFC 112
Inthe Marriage of Briese (1985) 10 Fam LR 642 ; [1986] FLC 91-713
In the Marriage of Weir (1992) 16 FamLR 154
Kennon & Kennon (1997) FLC 92-757
Livesey v Jenkins [1985] 1 All ER 106
Oriolo v Oriolo (1985) 10 Fam LR 665 ; [1985] FLC 91-653
Robb & Robb (1995) FLC 92-555
Russell & Russell [1999] FamCA 1875
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Trevi & Trevi [2018] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 157 Date of last submission/s: 21 September 2022 Date of hearing: 25 and 27 July 2022; 12 August 2022; and 21 September 2022 Place: Parramatta Counsel for the Applicant: Mr Othen Solicitor for the Applicant: Matthews Folbigg Pty Ltd The Respondent: In person ORDERS
DUC 63 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FRANKLYN
Applicant
AND: MS FRANKLYN
Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS THAT:
1.The interim orders made on 10 May 2018 are discharged.
2.Forthwith, the respondent (“wife”) is to do all acts and things necessary so as to cause the removal of the caveat lodged in her name in respect of any interest claimed over the property ‘C Property’, J Street, Suburb K NSW being the whole of land contained in Folio Identifier Lot … DP… (“C Property”).
3.Within 90 days of the date of these orders:
(a)The applicant (“husband”) is to make a cash payment to the respondent wife, in the sum of $801,657;
(b)The husband is to do all acts and things necessary to pay out any and all mortgages and any and all loans in the parties’ joint names held with the L Bank; and
(c)Upon the husband complying with order (b) above, the parties are to do all acts and things necessary to cause the discharge of any and all mortgages and/or securities held in the parties’ joint names with the L Bank.
4.Simultaneously with compliance with order 3, the wife shall transfer to the husband:
(a)The whole of her right, title and interest in C Property; and
(b)Any interest that she has which may remain in the Franklyn Partnership (“partnership”).
5.In the event that the husband fails to comply with order 3(a), then within 7 days of default, the husband shall:
(a)Transfer to the wife…
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- Franklyn & Franklyn [2023] FedCFamC2F 353
- Case
- [2023] FedCFamC2F 353
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CaseChat Overview and Summary
The Court determined that the husband's contributions to the relationship were approximately 55-60%, while the wife's contributions were around 40-45%. This was based on the value of the assets each party brought into the relationship, as well as their financial contributions during the relationship. The wife made significant capital contributions to the partnership, while both parties contributed to the running of the farm and the upbringing of their child. The Court found that the husband had the benefit of most of the farming assets, income, and real property post-separation. The wife had the benefit of an inheritance, the sale proceeds of an investment property, and some equipment for her business.
Considering the parties' future needs, the Court made a modest adjustment in favour of the wife, given her health conditions and limited capacity to earn an income. Based on the findings of contributions and future needs, the Court assessed a 55% adjustment in favour of the husband and a 45% adjustment in favour of the wife. This resulted in the husband receiving assets to the value of $1,244,594, and the wife receiving $1,018,304. The Court also made orders for the payment of $801,657 by the husband to the wife, contingent upon the refinancing of secured loans and the removal of caveats.
If the husband fails to make the payment within 90 days, the wife will retain C Property and the husband will make an additional cash payment of $101,657. If the husband fails to comply with other orders, there are provisions for the sale of B Property and O Property. The Court concluded that the overall adjustment was just and equitable, considering the parties' circumstances. The Court also made orders for the distribution of costs in the proceedings.
Orders
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Background
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Legal Principle Established
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