Grady and Chilcott and Ors (No.2) - [2019] FCCA 2119

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRADY & CHILCOTT & ORS (No.2)

[2019] FCCA 2119

Catchwords:
FAMILY LAW – Dispute with respect to length of de facto relationship and whether the Court’s jurisdiction is enlivened – if jurisdiction is enlivened the assessment of contributions and whether there should be any adjustments – whether or not the first respondent holds part of his interest in several properties on trust for the second, third and fourth respondents.

Legislation:

Family Law Act 1975 (Cth), pts.VIIIA, VIIIAB, ss.4AA, 79, 79(2)
90SB(a), 90SD, 90SM(1); 90SM(3), 90SM(4), 90SF(3)

Cases cited:

De Angelis & De Angelis (1999) 30 Fam LR 304
Grady & Chilcott & Ors [2018] FCCA 1690
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Jonah & White [2012] FamCAFC 200
Kennon & Kennon (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC 91-092
Sinclair & Whittaker [2013] FamCAFC 129
Singh and Singh [2007] NSWSC 1357
Stanford & Stanford (2012) 247 CLR 108
Watson & Ling (2013) 49 Fam LR 303

Applicant:

MS GRADY

First Respondent:

MR CHILCOTT

Second Respondent:

MR A CHILCOTT

Third Respondent:

MR B CHILCOTT

Fourth Respondent:

MS C CHILCOTT

File Number:

MLC 1297 of 2014

Judgment of:

Judge Harland

Hearing dates:

5 November 2018, 13 and 14 February 2019

Date of Last Submission:

8 May 2019

Delivered at:

Melbourne

Delivered on:

5 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Starvis

Solicitors for the Applicant:

Anthonys Solicitors

Counsel for the First Respondent:

Mr Penno

Solicitors for the First Respondent:

Bevan-Rhys James

Counsel for the Second, Third and Fourth Respondents:

Mr Goddard

Solicitors for the Second, Third and Fourth Respondents:

Prior Law

ORDERS

Pursuant to s.90RD of the Family Law Act1975 a de facto relationship between MS GRADY and MR CHILCOTT existed between late 2005 and September 2013.
Pursuant to s.90SL of the Family Law Act 1975 each of the parties MS GRADY and MR CHILCOTT shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control in which either has an interest which are not otherwise dealt with in these orders.
That the response filed by the second, third and fourth respondents on 11 November 2018 be dismissed.
MS GRADY within 7 days forthwith remove any caveat lodged on her behalf on the title to Property B1, Property B2, Property B3 and Property A properties.
That all outstanding applications be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Grady & Chilcott & Ors (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1297 of 2014

MS GRADY

Applicant

And

MR…

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.

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Details

Case: [2019] FCCA 2119
Decision Date: 5 August 2019

CaseChat Overview and Summary

In *Grady and Chilcott and Ors (No.2)*, Judge Harland of the Family Court of Australia considered a dispute between Ms Grady and Mr Chilcott concerning their de facto relationship and the division of property. The proceedings also involved the second, third, and fourth respondents, with a key issue being whether Mr Chilcott held interests in several properties on trust for these other respondents.

The court was required to determine whether a de facto relationship existed between Ms Grady and Mr Chilcott and, if so, to assess their respective contributions to their property pool. A further question was whether any part of Mr Chilcott's interest in certain properties was held on trust for the second, third, and fourth respondents.

Applying the provisions of the *Family Law Act 1975*, the court found that a de facto relationship existed between Ms Grady and Mr Chilcott from late 2005 until September 2013. The court declared each party to be the sole owner at law and in equity of specified personal property, including furniture, cash, vehicles, and superannuation interests not otherwise dealt with. The applications filed by the second, third, and fourth respondents were dismissed, and Ms Grady was ordered to remove any caveats lodged on her behalf on the titles to specific properties within seven days. All other outstanding applications were also dismissed.

Orders

Orders of the court

Pursuant to s.90RD of the Family Law Act 1975 a de facto relationship between MS GRADY and MR CHILCOTT existed between late 2005 and September 2013.

Pursuant to s.90SL of the Family Law Act 1975 each of the parties MS GRADY and MR CHILCOTT shall be and hereby are declared to be the sole and absolute owners at law and in equity of:

(a) all items of furniture, furnishings, personalty, chattels and jewellery;

(b) all monies (whether held in cash or in deposit with any financial institution);

(d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;

in the possession, custody or control in which either has an interest which are not otherwise dealt with in these orders.

That the response filed by the second, third and fourth respondents on 11 November 2018 be dismissed.

MS GRADY within 7 days forthwith remove any caveat lodged on her behalf on the title to Property B1, Property B2, Property B3 and Property A properties.

That all outstanding applications be otherwise dismissed.

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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