Franklyn & Franklyn - [2023] FedCFamC2F 353

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…

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 Franklyn & Franklyn

Details

AGLC: Franklyn & Franklyn [2023] FedCFamC2F 353
Case: [2023] FedCFamC2F 353
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 2, presided over the case of Franklyn & Franklyn. The central issue was the determination of property adjustment orders following the separation of the husband and wife. This case was a continuation of a series of disputes, appeals, and hearings between the parties. The Court had to decide on the appropriate division of assets, taking into account contributions made by both parties and their future needs. The Court found that the husband had made non-compliant disclosures, which affected the assessment of contributions and the overall adjustment.

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