HARLEY & JACOBS - [2019] FCCA 458

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARLEY & JACOBS

[2019] FCCA 458

Catchwords:
FAMILY LAW – Property – addbacks sought – monies accrued on mortgage post-separation – legal fees – initial contribution – respondent’s earning capacity – recognition of an unsecured liability – contributions.

Legislation:

Family Law Act 1975 (Cth), ss.4, 79, 90SF, 90SM

Cases cited:

Af Petersens & Af Petersens (1981) FLC 91-095

Antmann & Antmann (1980) FLC 90-908

Bevan & Bevan (2013) FLC 93-545

Biltoft & Biltoft (1995) FLC 92-614

NHC & RCH (2004) FLC 93-204

Clives & Clives (2008) FLC 93-385

C & C (2005) FLC 93-220

Kowaliw & Kowaliw (1981) FLC 91-092

Pierce & Pierce (1999) FLC 92-844

Selby & Robilliard [2018] FamCA 214

Shepherd v Shepherd (2016) FCCA 3038

Stanford & Stanford (2012) 247 CLR 108

Trevi & Trevi [2018] FamCAFC 173

Vass & Vass [2015] FamCAFC 51

[X]s & [X]s [2007] FamCA 313

Applicant:

MS HARLEY

Respondent:

MR JACOBS

File Number:

HBC 356 of 2017

Judgment of:

Judge Baker

Hearing dates:

28 September 2018

11-12 October 2018

6 November 2018

10-11 December 2018

25 January 2019

Date of Last Submission:

25 January 2019

Delivered at:

Hobart

Delivered on:

1 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Turnbull

Solicitors for the Applicant:

Jacobs Family Law

Counsel for the Respondent:

Mr Trezise of Counsel

Solicitors for the Respondent:

Simmons Wolfhagen

ORDERS

Within sixty (60) days of the date of this order the Mother shall transfer to the Father (“the transfer”) all her right title and interest in the real property situate at Property A in Tasmania and more particularly described in Certificate of Title Volume … Folio … (“the property”).
Contemporaneously with the transfer referred to in paragraph1, the Father shall:
(a)Discharge the mortgage to Commonwealth Bank of Australia (“the bank”), Mortgage No. … (“the mortgage”) registered on the title of the property and procure a release from the bank in favour of the Mother from any liability outstanding in respect of the mortgage; and
(b)Pay to the Mother a sum of $68,952.
If the Father is unable to comply with paragraphs 1 and 2, he shall immediately list for sale the property and for that purpose the following will apply:
(a)The selling agent shall be such agent or agents as the parties may from time to time agree or in default of agreement as hereinafter provided.
(b)The listed sale price and method of sale and manner of advertising for sale shall be as agreed by the parties and in default of agreement as hereinafter provided.
(c)The terms and conditions of sale, including the acceptance or rejection of any offer to purchase the property, shall be as agreed between the parties and in default of agreement as hereinafter provided.
(d)In default of agreement between the parties in respect of any of the matters referred to in sub-paragraphs (a) to (c) inclusive hereof:
(i)Either party may request the President of the Law Society of Tasmania or his nominee (hereinafter called ‘the Arbitrator’) to determine the matter 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 HARLEY & JACOBS

Details

AGLC: HARLEY & JACOBS [2019] FCCA 458
Case: [2019] FCCA 458
Decision Date: 1 March 2019

CaseChat Overview and Summary

This matter concerned property adjustment orders made by Judge Baker between the Mother and the Father. The dispute involved the division of assets, specifically concerning a jointly owned property, and the recognition of certain liabilities and contributions.

The court was required to determine how to address the equity in the jointly owned property, including the impact of post-separation mortgage accruals and legal fees. Further issues included the recognition of the Father's earning capacity, the treatment of an unsecured liability, and the overall assessment of the parties' contributions to the marriage and the acquisition, conservation, or improvement of the property.

Judge Baker ordered that the Mother transfer her interest in the real property to the Father, who was then to discharge the existing mortgage and pay the Mother a sum of $68,952. If the Father was unable to comply with these terms, the property was to be listed for sale, with the net proceeds to be applied first to pay the Mother the sum of $68,952, and the balance to the Father. The order also stipulated that the Father would be responsible for mortgage instalments and outgoings pending sale, and that each party would retain their respective sale proceeds from other properties and relinquish claims to various assets and financial resources held by the other, with each party being solely liable for their own debts and liabilities.

Orders

Orders of the court

Within sixty (60) days of the date of this order the Mother shall transfer to the Father (“the transfer”) all her right title and interest in the real property situate at Property A in Tasmania and more particularly described in Certificate of Title Volume … Folio … (“the property”).

Contemporaneously with the transfer referred to in paragraph1, the Father shall:

(a) Discharge the mortgage to Commonwealth Bank of Australia (“the bank”), Mortgage No. … (“the mortgage”) registered on the title of the property and procure a release from the bank in favour of the Mother from any liability outstanding in respect of the mortgage; and

(b) Pay to the Mother a sum of $68,952.

If the Father is unable to comply with paragraphs 1 and 2, he shall immediately list for sale the property and for that purpose the following will apply:

(a) The selling agent shall be such agent or agents as the parties may from time to time agree or in default of agreement as hereinafter provided.

(b) The listed sale price and method of sale and manner of advertising for sale shall be as agreed by the parties and in default of agreement as hereinafter provided.

(c) The terms and conditions of sale, including the acceptance or rejection of any offer to purchase the property, shall be as agreed between the parties and in default of agreement as hereinafter provided.

(d) In default of agreement between the parties in respect of any of the matters referred to in sub-paragraphs (a) to (c) inclusive hereof:

(i) Either party may request the President of the Law Society of Tasmania or his nominee (hereinafter called ‘the Arbitrator’) to determine the matter in dispute;

(ii) The cost of the Arbitrator’s determination shall be borne equally between the parties.

The parties shall do all such acts and things necessary and co-operate in every way with the selling agent, including signing all documentation requested by the agent in relation to the listing for the sale of the property.

If the property is sold pursuant to paragraph 3, after payment of agent’s commission and costs and legal costs on the sale, the net sale proceeds will be paid in the following priority:

(a) To effect a total cash payment to the Mother of $68,952.

(b) The balance to the Father.

Pending the sale or sales, the Father shall be responsible for the payment of the mortgage instalments, council rates and taxes, and all outgoings in respect of the property.

The Mother shall retain the net sale proceeds from the sale of Town E property.

Subject to the terms of this order, the Mother shall relinquish in favour of the Father any claim she may otherwise have to an interest in the following:

(a) Any savings, money in the bank, car sale proceeds, or investments of the Father;

(b) Any furniture, household effects, or any items of personalty in the possession of the Father;

(d) Any motor vehicles and motor bikes in the possession of the Father; and

(e) The Father’s sole trader business, known and trading as “Business 1”.

Subject to the terms of this order the Father shall relinquish in favour of the Mother any claim he may otherwise have to an interest in the following:

(a) Any savings, money in the bank or investments of the Mother;

(b) Any furniture, household effects, the dinghy or any items of personalty in the possession of the Mother;

(d) Any motor vehicles in the possession of the Mother.

10.

Unless otherwise specified in this order and except for the purposes of enforcing payment of any money due under these or any subsequent order, each party is solely entitled to all property and financial resources (and choses in action) in their possession on the date of this order to the exclusion of the other. For the purposes of this order:

(a) Banking and other accounts are deemed to be in the possession of the person whose name appears on the records of the relevant financial institution;

(b) Insurance policies are deemed to be in the possession of the policy holder named in the policy;

(c) Superannuation entitlements are deemed to be in the possession of the person named as the worker whose age or working future provides the conditions for payment out of such entitlements; and

(d) Each party is solely liable for and indemnifies the other against any liability encumbering any item of property or financial resource to which that party is entitled under these orders.

11.

Neither the Mother nor the Father shall incur in the name of the other any account debt or any other liability and subject to the provisions of this order each shall pay or discharge all accounts debts and other liabilities presently standing in their respective names or hereinafter incurred by either of them and shall at all times keep the other indemnified therefrom and from all claims actions and other expenses in connection therewith.

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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