FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hainsworth & Pardue [2024] FedCFamC2F 121
File number(s): PAC 3782 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 5 February 2024 Catchwords: FAMILY LAW – PROPERTY – Section 90SM property adjustment –– just and equitable orders made – spousal maintenance order made. Legislation: Family Law Act1975 (Cth) ss 90SE, 90SF, 90SM Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 23 January 2024 Place: Parramatta Counsel for the Applicant: Mr Heazlewood Solicitor for the Applicant: Longton Legal Solicitor for the Respondent: Dean Lawyers ORDERS
PAC 3782 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HAINSWORTH
Applicant
AND: MS PARDUE
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
5 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The applicant within 3 days draws up two lists of items of household contents, furniture and personal effects, and the respondent within 3 days picks one list and retains the items on that list.
2.Upon compliance with Order 1 above, the respondent provides access to the applicant on a day and time as agreed between the parties, to allow him to enter the premises to collect the items on the list of items that he will retain.
3.On the making of these orders:
(a)The respondent shall vacate the property within 21 days;
(b)The respondent shall, subject to Orders 1 and 2 above, remove her items and possessions and those of the child X from the property;
(c)The applicant shall, subject to Orders 1 and 2 above, remove his items and possessions from the property;
(d)After the respondent vacates the property the applicant shall arrange to paint the interior of the premises and replace the floor coverings. The cost of the said works is to be as agreed between the parties, or failing agreement the applicant shall provide the respondent three quotations for each of the painting and replacement of floor coverings, and the respondent shall choose one quote for each work item. The costs shall be shared equally by the parties, be paid by the applicant in the first instance and adjusted on the sale of the property known as and situate at B Street, Suburb C in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier … (“the property”).
4.The parties forthwith do all acts and things and sign all documents necessary to list the property for sale by public auction on the following conditions:
(a)The parties shall appoint an agent as agreed and failing agreement the applicant shall nominate three agents within 4 days from the date hereof and the respondent shall select one to act as the agent on the sale within 3 days of receiving the applicant’s nominations in writing;
(b)The parties shall appoint Longton Legal to act as the conveyancer on the sale, and in the event that Longton…
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- Hainsworth & Pardue [2024] FedCFamC2F 121
- Case
- [2024] FedCFamC2F 121
- Decision Date
CaseChat Overview and Summary
The primary legal issues included the division of the matrimonial home, the allocation of personal property, the management of superannuation, and the payment of spousal maintenance. The court had to consider the principles set out in the Family Law Act 1975 (Cth) and ensure that the orders made were just and equitable. The court had to decide how to allocate the household contents, furniture, and personal effects, as well as the responsibility for removing items from the property and the subsequent sale of the property. Additionally, the court needed to determine how to deal with the applicant's superannuation fund and whether spousal maintenance should be awarded and, if so, the amount and duration.
The court held that it was just and equitable to make specific orders regarding the division of property and maintenance. The court ordered that the parties draw up two lists of household items and that the respondent select one. The court also ordered the respondent to vacate the property within 21 days, with the applicant to undertake specific renovations post-vacancy. The sale of the property was to be conducted by public auction, with costs and disbursements to be shared equally. The net proceeds from the sale were to be applied to specified debts and expenses before any remaining balance was divided between the parties. The court also ordered that the applicant's superannuation be split, with a specified amount to be paid to the respondent. The court declared the applicant as the sole owner of a particular motor vehicle and ordered the transfer of another vehicle to the respondent. The court further declared the parties as the sole owners of their respective personal property and financial resources. Finally, the court ordered the applicant to pay the respondent maintenance of $32 per week for 18 months. The court made detailed provisions for the enforcement of the orders and the execution of necessary documents.
In summary, the court's orders addressed the division of property, the management of superannuation, and the payment of spousal maintenance. The court provided a detailed framework for the implementation of these orders, ensuring that both parties understood their responsibilities and the consequences of non-compliance.
Orders
Orders of the court
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The applicant within 3 days draws up two lists of items of household contents, furniture and personal effects, and the respondent within 3 days picks one list and retains the items on that list.
2. Upon compliance with Order 1 above, the respondent provides access to the applicant on a day and time as agreed between the parties, to allow him to enter the premises to collect the items on the list of items that he will retain.
3. On the making of these orders:
(a) The respondent shall vacate the property within 21 days;
(b) The respondent shall, subject to Orders 1 and 2 above, remove her items and possessions and those of the child X from the property;
(c) The applicant shall, subject to Orders 1 and 2 above, remove his items and possessions from the property;
(d) After the respondent vacates the property the applicant shall arrange to paint the interior of the premises and replace the floor coverings. The cost of the said works is to be as agreed between the parties, or failing agreement the applicant shall provide the respondent three quotations for each of the painting and replacement of floor coverings, and the respondent shall choose one quote for each work item. The costs shall be shared equally by the parties, be paid by the applicant in the first instance and adjusted on the sale of the property known as and situate at B Street, Suburb C in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier … (“the property”).
4. The parties forthwith do all acts and things and sign all documents necessary to list the property for sale by public auction on the following conditions:
(a) The parties shall appoint an agent as agreed and failing agreement the applicant shall nominate three agents within 4 days from the date hereof and the respondent shall select one to act as the agent on the sale within 3 days of receiving the applicant’s nominations in writing;
(b) The parties shall appoint Longton Legal to act as the conveyancer on the sale, and in the event that Longton Legal declines to so act, the applicant shall nominate three conveyancers within 4 days from the date hereof and the respondent shall select one to act as the conveyancer on the sale within 3 days of receiving the applicant’s nominations in writing;
(c) The auction shall be listed no later than 6 weeks from the date of these Orders;
(d) The reserve price shall be set as agreed between the parties and failing agreement by the agent;
(e) Upon settlement of the sale of the property, the net proceeds of sale shall be disbursed in the following manner and priority:
(i) In payment of agent’s commission, advertising and marketing fees incurred in relation to the sale;
(ii) In payment of professional legal costs and disbursements incurred in relation to the sale;
(iii) In payment of the mortgage to D Company in order to discharge the mortgage;
(iv) In payment of the following debts owing by the applicant and payable to:
A. Westpac Mastercard account ending #...93, $14,737;
B. E Company Mastercard account ending #...58, $17,440;
C. F Company Rewards Card account ending #...93, $9,909;
D. F Company Rewards Card account ending #...17, $18,894;
E. G Company Credit Card account ending #...41, $4,997;
F. H Company Overdraft to F Company…#…86, $455;
G. J Bank…#…61, $100;
H. K Pty Ltd, $13,729;
(v) In payment to the applicant of 50 per cent of the cost of the works paid for by him in accordance with Order 3 above;
(vi) The balance then remaining to be divided $7,215 to the applicant and $36,518 to the respondent, or if no such balance is available, in accordance with the Court’s within Reasons for Judgment;
(f) Pending the settlement of the sale of the property, the parties be restrained from drawing down on the existing loan facility and further encumbering the property without the consent in writing of the other party.
5. The applicant’s superannuation entitlement with Super Fund 1, member number …67, be dealt with as follows:
(a) This Order has effect from the operative time;
(b) In accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of Mr Hainsworth from his interest in the Super Fund 1 (Member Number …), Ms Pardue is entitled to be paid an amount calculated within Pt 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $210,101 and there shall be a corresponding reduction in the amount Mr Hainsworth would be entitled to receive but for these Orders;
(c) That, having been accorded procedural fairness in relation to the making of this Order, the Order binds the trustee of Super Fund 1;
(d) The operative time for this Order is 7 business days from service of this Order upon the trustee;
6. The applicant be declared the sole legal and beneficial owner of Motor Vehicle 1 and indemnify and keep indemnified the respondent in respect to the car loan or any other liability in respect to the motor vehicle.
7. The parties forthwith do all acts and things and sign all documents necessary to transfer Motor Vehicle 2 to the respondent, with the costs of the motor vehicle transfer to be borne by the applicant;
8. Unless otherwise specified in these Orders, the applicant retain and be declared the sole legal and beneficial owner of all his right, title and interest in and to:
(a) All cash at bank and other monies invested by him;
(b) All personal effects in his possession;
(c) All other property and financial resources in his name, possession, or control or to which he is or may become entitled;
9. Unless otherwise specified in these Orders, the respondent retain and be declared the sole legal and beneficial owner of all her right, title and interest in and to:
(a) All cash at bank and other monies invested by her;
(b) All personal effects in her possession;
(c) All her superannuation benefits;
(d) All other property and financial resources in her name, possession, or control or to which she is or may become entitled;
10. Unless otherwise specified in these Orders, the applicant shall be solely responsible for all liabilities in his sole name or jointly with any other person or entity and the applicant shall indemnify and keep indemnified the respondent against any present or future liability in respect of any debt, debt balance in any loan account, credit account, personal loan or any other liability relating to the applicant in whatsoever kind or nature;
11. Unless otherwise specified in these Orders, the respondent shall be solely responsible for all liabilities in her sole name or jointly with any other person or entity and the respondent shall indemnify and keep indemnified the applicant against any present or future liability in respect of any debt, debt balance in any loan account, credit account, personal loan or any other liability relating to the respondent in whatsoever kind or nature;
12. Pursuant to s 90SE(1) of the Act the applicant shall forthwith pay maintenance to the respondent in the sum of $32 per week for a period of 18 months.
13. The parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
14. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Judicial Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Judicial Registrar being provided with verification of such refusal or failure by way of affidavit.
15. Liberty to apply on 7 days’ notice in relation to any issue relating to the facilitation or implementation of the above Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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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