HARDING & NORTH - [2016] FCCA 1673

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARDING & NORTH

[2016] FCCA 1673

Catchwords:
FAMILY LAW – Property – Application for property settlement – just and equitable – contributions of the parties – whether adjustment should be made under Family Law Act 1975 (Cth), s.90SF(3) – de facto relationship – 12 year relationship – Respondent diagnosed with post-traumatic stress disorder and major depressive disorder – Respondent diagnosed as being unable to work again – Respondent aged 46 years – significant adjustment under s.90SF(3).

FAMILY LAW – Property – just and equitable – where final orders varied to avoid an unjust and inequitable outcome for the Applicant.

PRACTICE AND PROCEDURE – Application – Application defective – Application must precisely and briefly state the Orders sought – where Application did not comply with Rule 4.02.

PRACTICE AND PROCEDURE – Discovery – application for discovery – discovery not allowed unless the Court declares it appropriate to allow discovery in the interests of the administration of justice.

COSTS – Application for costs – parties to pay their own costs.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79, 90SF, 90SM, 117

Federal Circuit Court of Australia Act (1999) (Cth) s. 45
Federal Circuit Court Rules 2001 r. 4.02

Cases cited:

Hickey & Hickey (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395

Levavasseur & Tait [2012] FMCAfam 614

Stanford v Stanford (2012) 47 Fam LR 481; FLC 93-518; [2012] HCA 52

Applicant:

MR HARDING

Respondent:

MR NORTH

File Number:

SYC 1651 of 2014

Judgment of:

Judge Scarlett

Hearing date:

12-13 November 2014

Date of Last Submission:

13 November 2014

Delivered at:

Sydney

Delivered on:

6 July 2016

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

The Applicant is to retain and stand entitled to the exclusion of any other person the following items of personal property standing in his own name or in his possession:
(a)His Holden (omitted) motor car;
(b)His household items in his possession; and
(c)All cash in his bank account at the (omitted) Bank or any other bank.
The Applicant is to retain and stand entitled to the exclusion of any other person all his entitlement to superannuation with (omitted) superannuation.
The Applicant is to be solely responsible for and indemnify the Respondent and keep him indemnified against the following debts and liabilities in his name:
(a)All amounts owing to (omitted) MasterCard;
(b)All amounts owing by way of loan or other liability to the (omitted) Bank;
(c)All amounts owing to (omitted) Visa;
(d)All amounts owing to (omitted) Card;
(e)All amounts owing by way of loan or other liability to the (omitted) Bank also known as the (omitted) Bank:
(f)All amounts owing to the New South Wales State Debt Recovery Office;
(g)All amounts owing to the Australian Taxation Office;
(h)All amounts owing to Michael Wayne Tiyce trading as Tiyce & Lawyers in respect of legal costs and fees and interest thereon.
The Respondent is to retain and stand entitled to the exclusion of any other person the following items of personal property standing in…

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 HARDING & NORTH

Details

AGLC: HARDING & NORTH [2016] FCCA 1673
Case: [2016] FCCA 1673
Decision Date: 6 July 2016

CaseChat Overview and Summary

In the matter of Harding & North, Judge Scarlett of the Family Court of Australia considered an application for property settlement following a twelve-year de facto relationship. The dispute concerned the division of the parties' assets and liabilities, with a particular focus on the impact of the respondent's diagnosed post-traumatic stress disorder and major depressive disorder, which rendered him unable to work.

The court was required to determine whether the property settlement could be considered just and equitable, and specifically, whether an adjustment should be made under section 90SF(3) of the *Family Law Act 1975* (Cth) to account for the respondent's circumstances. The court also addressed procedural issues concerning the applicant's defective application and an application for discovery.

Judge Scarlett reasoned that the respondent's significant health issues and consequent inability to work necessitated a substantial adjustment to achieve a just and equitable outcome. The court applied the principles of property adjustment under the *Family Law Act*, considering the contributions of both parties and the future needs arising from the respondent's medical condition. The court found that the respondent's inability to work was a critical factor in determining the appropriate division of property.

The court ordered that the applicant retain specific personal property, including his motor vehicle, household items, and all cash in his bank accounts, as well as his superannuation entitlements. The applicant was also to be solely responsible for a list of specified debts. Conversely, the respondent was to retain his motor vehicle, household items, and cash in his bank accounts, along with his superannuation entitlements, and was to be solely responsible for a separate list of debts. The parties were ordered to pay their own costs, and all other applications were dismissed.

Orders

Orders of the court

The Applicant is to retain and stand entitled to the exclusion of any other person the following items of personal property standing in his own name or in his possession:

(a) His Holden (omitted) motor car;

(b) His household items in his possession; and

The Applicant is to retain and stand entitled to the exclusion of any other person all his entitlement to superannuation with (omitted) superannuation.

The Applicant is to be solely responsible for and indemnify the Respondent and keep him indemnified against the following debts and liabilities in his name:

(a) All amounts owing to (omitted) MasterCard;

(b) All amounts owing by way of loan or other liability to the (omitted) Bank;

(d) All amounts owing to (omitted) Card;

(e) All amounts owing by way of loan or other liability to the (omitted) Bank also known as the (omitted) Bank:

(f) All amounts owing to the New South Wales State Debt Recovery Office;

(g) All amounts owing to the Australian Taxation Office;

(h) All amounts owing to Michael Wayne Tiyce trading as Tiyce & Lawyers in respect of legal costs and fees and interest thereon.

The Respondent is to retain and stand entitled to the exclusion of any other person the following items of personal property standing in his own name or in his possession:

(a) His Mercedes Benz motor car;

(b) His household items in his possession; and

The Respondent is to retain and stand entitled to the exclusion of any other person all his entitlement to superannuation with (omitted) Super.

The Respondent is to be solely responsible for and indemnify the Applicant and keep him indemnified against the following debts and liabilities in his name:

(a) All amounts owing to (omitted) MasterCard;

(b) All amounts owing to (omitted) Visa Card;

(d) All amounts owing to Meyer Partners Family Lawyers in respect of legal costs and fees and interest thereon;

(e) All amounts owing for arrears of rent, utility bills, mobile telephone bills and any other debts standing in the name of the Respondent.

The parties are to pay their own costs.

All other Applications are 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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