FAMILY COURT OF AUSTRALIA
| HAKE & LAWFORD AND ORS | [2020] FamCA 906 |
| FAMILY LAW- PROPERTY SETTLEMENT – relationship of 17 years duration – documentary evidence of contributions poor – application undefended – no contradicting version of events given by first respondent – applicant and second plus third respondent resolving their differences – applicant proposing a division of assets on a percentage equating to 65% to the applicant and 35% to the first respondent – evidence of family violence – held, that percentage division is just and equitable – orders made as propounded by the applicant. |
| Bacall & Zagar [2020] FamCA 350 Breskvar v Wall (1971) 126 CLR 376 Stanford v Stanford (2012) 247 CLR 108 Wei & Wei [2020] FamCAFC 224 Wei & Wei (No. 3) [2020] FamCA 98 |
| Family Law Act 1975 (Cth) ss 90RD, 90SF, 90SM Family Law Rules 2004 (Cth) Residential Tenancies Act 1997 (Vic) Transfer of Land Act 1958 (Vic) |
| APPLICANT: | Ms Hake |
| FIRST RESPONDENT: | Mr Lawford |
| SECOND RESPONDENT: | Ms Nelson |
| THIRD RESPONDENT: | B Pty Ltd |
| FILE NUMBER: | MLC | 11655 | of | 2019 |
| DATE DELIVERED: | 28 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 22 September 2020 |
| DATE OF FURTHER EVIDENCE: | 23 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A. Barbayannis |
| SOLICITOR FOR THE APPLICANT: | Pearce Webster Dugdales |
| COUNSEL FOR THE FIRST RESPONDENT: | Not applicable |
| SOLICITOR FOR THE FIRST RESPONDENT: | Not Applicable |
| COUNSEL FOR THE SECOND RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE SECOND RESPONDENT: | Wightons Lawyers |
COUNSEL FOR THE THIRD RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE THIRD RESPONDENT | Wightons Lawyers |
Orders
Leave is granted to the applicant to proceed with her application as against the first named respondent on an undefended basis.
All previous orders are hereby discharged.
Pursuant to s 90RD of the Family Law Act 1975 (“the Act”) I declare that a de facto relationship existed between the applicant and the first named respondent from about 2002 to about September 2019.
The property known as and situated at C Street, Suburb D in the state of Victoria being the whole of the land more particularly described in certificate of title volume … Folio … (“the C Street property”) will remain on the market for sale with E Group or such other agent as nominated by the applicant, at such price as is determined by the applicant in conjunction with her selling agent.
The applicant have the conduct of the sale of the C Street property to the exclusion of the first named respondent.
The proceeds of sale of the C Street property, including the deposit, are applied as follows –
(a) first, to pay all selling agent’s costs and commission;
(b) secondly, to pay conveyancing costs and disbursements;
(c)thirdly, to discharge the mortgage to the ANZ Bank (“the mortgage”) registered dealing number …9S; and
(d)fourthly the balance to be paid to Pearce Webster Dugdales, solicitors, to be distributed as follows:
(i)to Ms F Lawford the sum of $210,000; and
(ii)as to the then remaining balance:
(1)65% thereof to…
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- Case
- [2020] FamCA 906
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were to declare the existence and duration of the de facto relationship, and to make orders for the division of property and the discharge of debts. The court also considered the impact of family violence on the relationship and the proposed property division.
Wilson J found that a de facto relationship existed between the applicant and the first respondent from approximately 2002 to September 2019. The court noted that documentary evidence of contributions was poor and that the application was undefended by the first respondent, who provided no contradicting version of events. The applicant proposed a division of assets whereby she would receive 65% and the first respondent 35%. The court accepted this proposed division as just and equitable, taking into account the evidence of family violence.
The court made orders including granting leave for the applicant to proceed on an undefended basis, discharging previous orders, and declaring the de facto relationship. The C Street property was to remain on the market for sale, with the applicant having conduct of the sale. The proceeds were to be applied to selling costs, conveyancing costs, the ANZ mortgage, and then distributed with $210,000 to Ms F Lawford, followed by 65% of the remaining balance to the applicant and 35% to the first respondent. The first respondent was ordered to withdraw any caveats lodged over the property, with the applicant authorised to execute documents for removal if he failed to do so. The applicant was granted sole occupation of the C Street property pending sale, responsible for rates and outgoings, while the first respondent was to pay $1,500 per month towards the mortgage. The applicant was to receive a specific motor vehicle, and each party was to retain other assets and chattels in their possession. The applicant was to indemnify the first respondent for debts in her sole name, and the first respondent was to indemnify the applicant for specific debts owed to the second and third respondents, and debts in his sole name. Finally, the first respondent was ordered to pay the applicant's costs.
Orders
Orders of the court
1.
Leave is granted to the applicant to proceed with her application as against the first named respondent on an undefended basis.
2.
All previous orders are hereby discharged.
3.
Pursuant to s 90RD of the Family Law Act 1975 (“the Act”) I declare that a de facto relationship existed between the applicant and the first named respondent from about 2002 to about September 2019.
4.
The property known as and situated at C Street, Suburb D in the state of Victoria being the whole of the land more particularly described in certificate of title volume … Folio … (“the C Street property”) will remain on the market for sale with E Group or such other agent as nominated by the applicant, at such price as is determined by the applicant in conjunction with her selling agent.
5.
The applicant have the conduct of the sale of the C Street property to the exclusion of the first named respondent.
6.
The proceeds of sale of the C Street property, including the deposit, are applied as follows –
(a) first, to pay all selling agent’s costs and commission;
(b) secondly, to pay conveyancing costs and disbursements;
(c) thirdly, to discharge the mortgage to the ANZ Bank (“the mortgage”) registered dealing number …9S; and
(d) fourthly the balance to be paid to Pearce Webster Dugdales, solicitors, to be distributed as follows:
(i) to Ms F Lawford the sum of $210,000; and
(ii) as to the then remaining balance:
(1) 65% thereof to the applicant; and
(2) 35% thereof to the first named respondent.
7.
On or before 4:00pm on 4 November 2020 the first named respondent at his expense shall withdraw all or any caveats registered over the C Street property by him or on his behalf including but not limited to Caveat Number ….
8.
In the event that the first named respondent fails to withdraw the caveat lodged by him or on his behalf on the property within 7 days, the applicant, pursuant to s 106A of the Family Law Act 1975, is appointed and authorised to executed any deed or instrument in the name of the first named respondent that may be required to cause the removal of the said caveat.
9.
The applicant and the first named respondent and each of them shall do all such acts and things and sign all such documents as are necessary to facilitate orders 4 to 6 hereof inclusive, and in the event the first named respondent refuses or fails to do all acts and things and execute all such documents as may be necessary to give effect to these orders within 7 days of being requested to do so in writing, the applicant be and is hereby authorised pursuant to s 106A(1) of the Act to execute all such documents in the name of the first named respondent and to do all acts and things necessary to give validity and operation to the said orders.
10.
Pending the completion of the C Street property sale and settlement and distribution of the proceeds of sale pursuant to order 6 hereof –
(a) the applicant shall have the sole right to occupy the C Street property; and
(b) the applicant shall pay all rates and outgoings of the C Street property as they fall due including the instalments on the mortgage save as provided for in order 10(c) hereof;
(c) the first named respondent pay the sum of $1,500 per calendar month towards the mortgage by depositing the said sum on or before the 21st day of each calendar month to ANZ Bank account BSB … account number …89.
11.
On or before 4:00pm on 4 November 2020 the first named respondent at the applicant’s expense shall do all such acts and things necessary to transfer or cause G Pty Ltd to transfer the motor vehicle 1 registration number … to the applicant.
12.
The applicant shall otherwise retain for her sole use and benefit absolutely –
(a) all or any bank accounts in her sole name –
(b) all shares or other investments in her sole name;
(c) the motor vehicle 1 registration … in her possession as at the date of the making of these orders; and
(d) the chattels and personal effects in her possession as at the date of the making of these orders.
13.
The first respondent shall otherwise retain for his sole use and benefit absolutely –
(a) all or any bank accounts in his sole name –
(b) all shares or other investments in her sole name;
(c) the motor vehicle(s) in his possession as at the date of the making of these orders;
(d) the chattels and personal effects in his possession as at the date of the making of these orders; and
(e) the artwork in his possession or the proceeds of sale of same.
14.
Save as provided for in these orders, the applicant shall indemnify the first named respondent and keep him indemnified in respect of all or any debts in her sole name.
15.
The first named respondent shall indemnify the applicant and keep her indemnified in respect of all or any debts:
(a) due to the second named respondent, MS NELSON, or due to the third named respondent B PTY LTD; and
(b) due by him or G PTY LTD; and
(c) all or any other debts in his sole name.
16.
The first named respondent pay the applicant’s costs of and incidental to her application.
17.
The application filed 16 October 2019 is otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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