HADSALL & HADSALL - [2020] FCCA 1891

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADSALL & HADSALL

[2020] FCCA 1891

Catchwords:
FAMILY LAW – Long marriage – parties separate in 1999 – after separation wife retains control of and possession of most of husband’s disability pension until 2014 – significant inheritances by the wife post separation through her inheritances – husband seeking to secure permanent housing in modest former matrimonial home in his senior years – husband now aged 77 and the is wife aged 70 – husband has poor medical and psychiatric health – wife in a current de facto relationship – consideration of proper approach given inheritances and 20 years passing between separation and trial – balancing just and equitable considerations – wife seeks to retain all of her inherited property and 40% of the former matrimonial home and half the husband’s pension – husband seeks to retain the former matrimonial property and his disability pension.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79

Cases cited:

Calvin & McTier [2017] FamCAFC 125

C & C (2005) 33 Fam LR 414

In the Marriage of Hickey (2003) FLC 93-143

Ferraro and Ferraro (1993) FLC 92-335

Bevan & Bevan [2013] FamCAFC 116

Stanford & Stanford (2012) FLC 93-495

Holland & Holland [2017] FamCAFC 166

Norbis v Norbis (1986) FLC 91-712

Cahill v Cahill [2003] FamCA 172

Jones &Jones (1009) FLC 92-143

Thynne and Madison [2007] FamCA 558

Zaruba & Zaruba [2017] FamCAFC 91

Bonnici & Bonnici (1992) FLC 92-272

Dickons & Dickons (2012) 50 FamLR 244

Applicant:

MS HADSALL

Respondent:

MR HADSALL

File Number:

BRC 9285 of 2017

Judgment of:

Judge Willis

Hearing dates:

6 & 7 November 2019 & 26 June 2020

Date of Last Submission:

7 November 2019

Further submissions, 26 June 2020

Delivered at:

Cairns

Delivered on:

23 July 2020

REPRESENTATION

Counsel for the Applicant:

Mr Gardiner

Solicitors for the Applicant:

Bradley Munt & Co

Counsel for the Respondent:

Mr Jacobs

Solicitors for the Respondent:

Danielle D Hodgens Lawyer

ORDERS

By way of full and final property settlement, the husband is to pay to the wife the sum of $69,154.00 with respect to her interest in the property at B Street, Suburb C, Queensland being the whole of the land more particularly described as Lot ... on RP ..., Title Reference ... (“the former matrimonial home”).
The said sum of $69,154.00 is to be paid by the husband to the wife by way of:
(a)An initial payment of $10,000.00 within 21 days of the date of these orders followed by consecutive monthly payments on the first day of each month in the sum of $1,478.85 until such time as the said $69,154.00 has been paid to the wife in full NOTING THAT the husband is permitted to make any earlier repayments or earlier repayment in full at his discretion.
(b)In the event that the husband pre-deceases the wife, should any funds remain owing to the wife, the former matrimonial home is to be sold and the debt for the balance owing is to be paid to…

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 HADSALL & HADSALL

Details

AGLC: HADSALL & HADSALL [2020] FCCA 1891
Case: [2020] FCCA 1891
Decision Date: 23 July 2020

CaseChat Overview and Summary

In Hadsall & Hadsall, Judge Willis of the Federal Circuit Court of Australia made orders concerning the property settlement between a husband and wife. The dispute centred on the division of the former matrimonial home and other assets and liabilities.

The court was required to determine the terms of a full and final property settlement, including the valuation and distribution of the former matrimonial home, the payment of a sum to the wife in respect of her interest in that property, and the allocation of other assets and liabilities between the parties. The court also addressed the potential for future liabilities and the enforcement of its orders.

The court ordered that the husband pay the wife a sum of $69,154.00 for her interest in the former matrimonial home. This payment was to be made through an initial deposit of $10,000.00, followed by monthly instalments, with the husband permitted to make earlier or full repayment at his discretion. The orders stipulated that the wife would transfer her interest in the home upon the initial payment, and the husband would indemnify her against all associated liabilities. Other property was to be divided equally, with each party retaining possession of their respective assets and being solely liable for any encumbrances. The court also made provision for the sale of the home should the husband predecease the wife and any balance remain owing.

The orders also established a process for any applications for costs, requiring written submissions from both parties addressing sections 117(1) and (2) of the Family Law Act 1975, along with evidence of any written offers. The court reserved its decision on costs pending these submissions and indicated that it would determine whether to proceed on the papers or list the matter for an oral hearing. All other outstanding applications were removed from the pending cases list, save for any costs applications.

Orders

Orders of the court

By way of full and final property settlement, the husband is to pay to the wife the sum of $69,154.00 with respect to her interest in the property at B Street, Suburb C, Queensland being the whole of the land more particularly described as Lot ... on RP ..., Title Reference ... (“the former matrimonial home”).

The said sum of $69,154.00 is to be paid by the husband to the wife by way of:

(a) An initial payment of $10,000.00 within 21 days of the date of these orders followed by consecutive monthly payments on the first day of each month in the sum of $1,478.85 until such time as the said $69,154.00 has been paid to the wife in full NOTING THAT the husband is permitted to make any earlier repayments or earlier repayment in full at his discretion.

(b) In the event that the husband pre-deceases the wife, should any funds remain owing to the wife, the former matrimonial home is to be sold and the debt for the balance owing is to be paid to the wife out of the sale proceeds.

Contemporaneously with the initial payment referred to in Order 2(a) herein the wife is to do all acts and things and sign all documents necessary to transfer to the husband, at the expense of the husband, all of her right, title and interest in the former matrimonial home. Thereafter, the husband will indemnify and keep the wife indemnified in respect of all liabilities associated with the former matrimonial home.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or 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 and/or control of such party as at the date of these orders. The chattels in the former matrimonial home are deemed to be in the possession of the husband;

(b) Each party forego any claims they may have to any superannuation or pension 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 property to which that party is entitled to pursuant to these orders;

That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of these orders. In the event that either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

Costs

Any party seeking costs is to file and serve written submissions addressing the relevant sections 117(1) and (2) of the Family Law Act and enclosing any relevant evidence of written offers and provide a minute of Orders sought on the relevant scale, within 21 days of today’s date.

The Respondent to an Application for costs is to file and serve written submissions in response addressing the relevant sections 117(1) and (2) of the Family Law Act and enclosing any relevant evidence of written offers and provide a minute of Orders sought on the relevant scale, within 21 days of being served.

After each party has provided their written submissions, within 7 days of the final submissions, each party is to indicate if they require an oral hearing or if they are content to have the matter heard on the papers and in Chambers.

The Court will then consider whether or not the submissions are sufficient to proceed to determine the costs application on the papers in Chambers or alternatively if the matter will be listed for oral submissions.

Other Orders

10.

Save and except for any costs applications, all outstanding applications be removed from the pending cases list.

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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