Gipps & Ning - [2023] FedCFamC2F 325

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gipps & Ning [2023] FedCFamC2F 325

File number(s): CAC 2087 of 2018

Judgment of: JUDGE HUGHES

Date of judgment: 23 March 2023

Catchwords: FAMILY LAW – property settlement – adjustment to husband for significant initial contribution – bigger adjustment to the wife for s.75(2) factors

Legislation: Family Law Act 1975 (Cth) ss 75 and 79

Division: Division 2 Family Law

Number of paragraphs: 102

Date of last submission/s: 19 July 2022

Date of hearing: 18 – 19 July 2022

Place: City G

Solicitor for the Applicant: Self-represented

Counsel for the Respondent: Mr Haddock

Solicitor for the Respondent: Law Firm T
ORDERS

CAC 2087 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GIPPS

Applicant

AND:
MS NING

Respondent

order made by:

JUDGE HUGHES

DATE OF ORDER:

23 March 2023

THE COURT ORDERS THAT:
1.Within 6 weeks of the date of these orders (“the due date”), the husband shall pay to the wife the sum of $189,346 (“the payment”), comprising the following:
(a)$182,359 by way of property settlement;
(b)$2,987 for costs ordered on 21 May 2020; and
(c)$4,000 for costs ordered on 17 May 2022.

2.The payment shall be made into a bank account nominated by the wife in writing within 7 days.
3.In the event the payment is not made in full by the due date and unless otherwise agreed in writing:
(a)The husband shall pay interest in accordance with rule 10.17 of the Federal Circuit and Family Court of Australia Rules 2021 on any outstanding amount, such interest to be calculated from the due date until the date of full payment.
(b)Within 6 weeks of the due date, the parties shall each do all acts and things and sign all documents necessary to sell the property situated at B Street, Suburb C in the Australian Capital Territory being the land more particularly described as Section … Block … on Deposited Plan … (“the property”) and for this purpose:
(i)the husband and wife are hereby appointed joint trustees for the sale of the property;
(ii)the parties shall agree upon a selling agent (“the agent”) and a conveyancing solicitor (“the conveyancer”) but, failing agreement within 14 days of the due date, the agent and conveyancer shall be as nominated by the wife;
(iii)the property shall be listed for sale by private treaty or auction by agreement between the parties in writing and, failing agreement, as recommended by the agent;
(iv)the listing or reserve price for the property shall be as agreed between the parties and, failing agreement within 21 days of the due date, the listing or reserve price shall be as nominated by the agent;
(v)the sale price for the property shall be as agreed between the parties and, failing agreement, the parties shall accept any offer to purchase the property that is at least 90 per cent of the listing or reserve price, or as recommended by the agent;
(vi)the husband shall co-operate in every way…

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 Gipps & Ning

Details

AGLC: Gipps & Ning [2023] FedCFamC2F 325
Case: [2023] FedCFamC2F 325
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Hughes handed down a decision on 23 March 2023 in Gipps & Ning, property proceedings after a relationship of at least eight years. The husband commenced the proceedings more than three years after separation and sought that the wife pay him $1.7 million within seven days, otherwise, he sought that the wife sell her property and pay him $1.9 million. The wife sought orders for the husband to pay her $235,000 within 28 days and, failing that, that the husband’s property be sold to facilitate the payment. The wife also sought a superannuation split of 100 per cent of the husband’s Super Fund 1 to her. The husband argued that the wife had a significant initial contribution comprising her share portfolio and, to a small extent, her parenting of the child alone for five months. The wife argued that the husband’s demand that she pay market rent and a 100 per cent administration fee to occupy the spare room in the former matrimonial home was bullying and exploitative, especially in circumstances in which she had, by agreement, given up her full-time employment to be a full-time homemaker and parent and had no income apart from her share dividends. The wife made significant post-separation contributions by continuing in her role as the primary caregiver of the children in these difficult circumstances and without any financial support from the husband until he began paying child support, which appears to be in 2016. The wife dealt with these circumstances by immediately commencing study and qualifying at the end of 2016 as a public servant. This generated a modest income for her but allowed her to be available for the children outside of school hours. The gift of $73,000 the wife received from her sister at the time of separation is a contribution on behalf of the wife. It allowed her to rent an apartment for herself and the children and facilitated the purchase of household furniture and the payment of daily living expenses, without which the currently available resources of the parties would likely have been diminished through a requirement for the husband to pay for these things, through spouse maintenance, interim property settlement or similar. The husband had the benefit of the sole use of the former matrimonial home post-separation while the wife paid rent and then purchased a home using borrowed funds. The husband made parenting contributions by spending substantial time with the children. He has also paid child support in accordance with the administrative assessment for much of the post-separation period, although his payments are in arrears. The wife paid child support to the husband during a post separation period when she was working and the husband had voluntarily stopped working. The wife sought an order for enforcement of two costs orders made against the husband during the course of proceedings which he has not paid. The husband sought an order which required the parties to enter into a binding Child Support Agreement. The court held that the weight of the significant initial contribution made by the husband is offset by the weight of the following: (a)the wife’s initial contribution comprising her share portfolio and, to a small extent, her parenting of the child X alone for five months; (b)the various contributions made by the wife during the eight year relationship; (c)the post-separation acquisition of property by the wife; and (d)the extra post-separation parenting contributions made by the wife. The court found that the net weight of the initial contribution of the husband warranted an adjustment in his favour of seven per cent of the value of the property pool. The court found that the wife’s contributions as homemaker and parent during the marriage were greater than the husband’s. The court found that the wife is likely to have to take unpaid leave in order to accompany Y to Sydney for treatment. The burden of this care will fall more heavily on the wife given the children live for more time with her than the husband. The court found that an adjustment to the wife of 15 per cent is warranted. This results in the wife taking 58 per cent of the value of the property pool and the husband taking 42 per cent. The court ordered that the husband pay the wife the sum of $182,359 by way of property settlement, plus $2,987 for costs ordered on 21 May 2020 and $4,000 for costs ordered on 17 May 2022. The court ordered that the husband sell the property situated at B Street, Suburb C in the Australian Capital Territory and that the proceeds of sale be distributed to discharge the mortgage, pay costs and to pay to the wife any amount outstanding on the payment, plus interest.

Orders