Hammond & Newtown - [2023] FedCFamC2F 165

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hammond & Newtown [2023] FedCFamC2F 165

File number(s): CAC 1748 of 2019

Judgment of: JUDGE MANSFIELD

Date of judgment: 23 February 2023

Catchwords: FAMILY LAW – PROPERTY – Final orders - Post trial application to re-open to adduce further valuation evidence permitted – Guiding principle of whether or not the interests of justice are better served by allowing or rejecting the application applied - EB v CT (No .2) [2008] QSC 306 followed - Contest over contributions and extent of future needs – Parties call for credit findings to be made – Sahrawi and Hadrami [2018] FamCAFC 170 considered –- Four step process followed – Necessary to adopt two pool approach to ensure that justice and equity is achieved.

Legislation:
Evidence Act 1995 (Cth) ss 79, 136

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.01

Cases cited:
Coghlan v Coghlan (2005) 33 Fam LR 414

Dickons & Dickons [2012] FamCAFC 154

Dovgan & Dovgan [2021] FamCA 306

EB v CT (No .2) [2008] QSC 306

Halstrom & Halstrom (2022) FLC 94-086

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

Kennon & Kennon (1997) FLC 92-757

Rosati v Rosati (1998) FLC 92-804

Sahrawi and Hadrami [2018] FamCAFC 170

Stanford v Stanford (2012) 247 CLR 108

Summitt & Summitt and Ors (Re-Opening) [2009] FamCA 365

Division: Division 2 Family Law

Number of paragraphs: 159

Date of last submission/s: 20 January 2023

Date of hearing: 16, 17 June and 24 October 2022

Place: Canberra

Counsel for the Applicant: Mr North and Mr Wong for the re-opening hearing

Solicitor for the Applicant: Watts McCray

Counsel for the Respondent: Mr Haddock

Solicitor for the Respondent: Dobinson Davey Clifford Simpson

Solicitor for the Respondent: Ms Simpson of Watts McCray for the re-opening hearing
ORDERS

CAC 1748 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HAMMOND

Applicant

AND:
MR NEWTOWN

Respondent

order made by:

JUDGE MANSFIELD

DATE OF ORDER:

23 FEBRUARY 2023

THE COURT ORDERS THAT:
Net proceeds of sale of the C Town property and capital gains tax
1.The amount held in the trust account of the Respondent Husband’s solicitors attributable to the net sale proceeds of the property at B Street, C Town NSW, more particularly described as Lot … in Deposited Plan …, EE Region, C Town, Title reference … (“the C Town property”) is to be released and paid forthwith as to 100% to the Respondent or as directed by the Respondent.
2.The Respondent indemnifies and keeps the Applicant Wife indemnified with respect to the capital gains tax assessed as owing on the sale of the C Town property

Cash Adjustment
3.Within 42 days of the date of this Order the Applicant Wife pay to the Respondent Husband the sum of $330,000.

The Suburb E Property
4.Contemporaneously upon compliance with Order 3, each party shall do all acts and things and sign all documents…

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 Hammond & Newtown

Details

AGLC: Hammond & Newtown [2023] FedCFamC2F 165
Case: [2023] FedCFamC2F 165
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) heard an application for final orders for property settlement between Ms Hammond (the Applicant) and Mr Newtown (the Respondent). The parties married in 2012, separated in 2014 and divorced in 2018. The Applicant wife sought a division of property of 70 per cent in her favour and the Respondent husband sought a division of property of 55 per cent in his favour. The Applicant also sought sole title to the Suburb E property, the Respondent to retain sole title to the C Town property and a cash adjustment of $521,865 from the husband to the wife. The Respondent sought the wife to obtain sole title to the Suburb E property, the C Town property to be sold and a cash adjustment of $270,000 from the wife to the husband. The Respondent also sought an order for the wife to indemnify him with respect to the capital gains tax liability on the sale of the C Town property. The Applicant opposed the husband’s application to re-open the proceedings to adduce further evidence as to the sale of the C Town property and the capital gains tax liability. The husband sought to re-open the proceedings on the basis that he had concerns the valuation of the C Town property was inflated and that he could not afford to retain it. The husband had reservations about the valuation and sought to sell the property which was his position at hearing. The wife did not proffer consent and expressed her scepticism about his motivation. The husband sought orders that accounted for the capital gains tax liability arising from the sale of the C Town property. The Court found that the husband’s application to re-open the proceedings was in the interests of justice. The Court found that the husband had not acted recklessly or negligently. The further evidence adduced thereafter had the consequence of decreasing the overall value of the property of the marriage to the objective disadvantage of both parties. The Court took into account the smaller than expected overall size of the pool when considering the parties’ contentions at trial about the assessments of contributions and future needs on a percentage basis. The Court found that the husband’s contributions should be loaded by five per cent and that the wife’s future needs should be adjusted by 10 per cent. The Court found that a division of 55 per cent to the wife and 45 per cent to the husband was just and equitable. The Court found that the wife’s entitlement to a superannuation splitting order of $155,000 would bring the wife’s entitlements to $385,288 and the husband’s to $314,879. The Court found that a cash adjustment of $330,000 to be paid by the wife to the husband and that the wife obtain sole title to the Suburb E property. The Court found that an overall division of 55/45 per cent in the wife’s favour was a just and equitable result.

Orders