Harry & Harry (No 4)

Case [2023] FedCFamC2F 1288


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Harry & Harry (No 4) [2023] FedCFamC2F 1288

File number(s): MLC 12354 of 2021
Judgment of: JUDGE GLASS
Date of judgment: 13 October 2023
Catchwords:

FAMILY LAW – PROPERTY – short relationship – where husband made significant initial contributions – where husband has inherited remainder interest in farming properties – where husband is solely responsible for the care of the parties’ four year old child

FAMILY LAW – SPOUSAL MAINTENANCE – where wife has not established her need or the husband’s capacity to maintain her  

Legislation:

Family Law Act 1975 (Cth) ss 4(1), 90XZD, 79(2), 79(4), 81, 74, 72(1), 75(3), 75(2), 106A

Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 7.06  

Cases cited:

Candle & Falkner (2021) FLC 94-069

Carson & Hillman [2019] FamCAFC 42

Chapman & Chapman (2014) FLC 93-592

NHC & RCH (2004) FLC 93-204

C & C (2005) FLC 93-220

C & C (2005) FLC 93-212

Kessey & Kessey (1994) FLC 92-495

Kramer & Another & Ward (2017) FLC 93-817

Mabb & Mabb & Another (2020) FLC 93-946

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Marchant & Marchant (2012) FLC 93-520

Martell & Martell [2023] FedCFamC1A 71

Palumbo & Mandel (2019) FLC 93-929

Phe & Leng (2019) FLC 93-887

Preston & Preston (2022) FLC 94-108

Russo & Wylie (2016) FLC 93-747

Stanford v Stanford (2012) 247 CLR 108

Samper & Samper (2021) FLC 94-041

Trevi & Trevi (2018) FLC 93-858

Weir & Weir (1993) FLC 92-338

Division: Division 2 Family Law
Number of paragraphs: 89
Date of last submission/s: 5 October 2023
Date of hearing: 4 – 5 October 2023
Place: Melbourne
Counsel for the Applicant: Ms Smallwood SC
Solicitor for the Applicant: Pearsons Lawyers
Solicitor for the Respondent: Self-Represented Litigant

ORDERS

MLC 12354 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR HARRY

Applicant

AND:

MS HARRY

Respondent

ORDER MADE BY:

JUDGE GLASS

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:

1.Within 60 days, the Wife:

(a)pay to the Husband the sum of $139,898; and

(b)discharge the mortgage secured against the property situate at L Street, City G, in the State of New South Wales, being the land more particularly described in Folio … (“L Street”).

2.In the event the Wife fails to comply with paragraph 1, the Husband and the Wife do all acts and things and sign documents as may be required to forthwith sell L Street to a non-party to the proceedings on terms agreed between them and failing agreement, as recommended by the selling agents.

3.The Husband and the Wife do all acts and things and sign documents as may be required to forthwith sell on terms agreed between them and failing agreement, as recommended by the respective selling agents, the following real properties:

(a)M Street, City G, in the State of New South Wales, being the land more particularly described in Certificate of Title Reference … ("M Street"); and

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AGLC
Harry & Harry (No 4) [2023] FedCFamC2F 1288
Case
[2023] FedCFamC2F 1288
Decision Date

CaseChat Overview and Summary

In the case of Harry & Harry (No 4), the Federal Circuit and Family Court of Australia (Division 2) was tasked with resolving the division of property and spousal maintenance between Mr Harry and Ms Harry. The court was required to consider the contributions made by each party, particularly the significant initial contributions made by Mr Harry, and the inherited remainder interest he holds in farming properties. Additionally, the court had to address the care responsibilities of the parties, with Mr Harry being solely responsible for their four-year-old child. The primary legal issues were the fair division of the matrimonial assets, including the sale of specified properties, and the determination of spousal maintenance. The court considered the contributions, care responsibilities, and the need for financial support by the wife. After evaluating the evidence, the court determined that the wife had not demonstrated a need for spousal maintenance, nor had she proven the husband's capacity to provide such maintenance.

The court reasoned that the husband's significant contributions to the relationship and the family, along with his sole care responsibility for their child, justified the property settlement in his favour. The court ordered that the wife pay the husband $139,898 and discharge a mortgage on a property located in City G, New South Wales. If the wife failed to comply, the court mandated the sale of this property and two other properties. The court appointed specific real estate agents and conveyancers for the sale of these properties and outlined detailed conditions for the sale process. The court also addressed the temporary occupation and financial responsibilities of each party pending the sale. The proceeds from the sale were to be applied to various costs and debts before any remaining balance was divided equally between the parties, with an additional adjustment for reimbursement of disbursements and other costs. The court further detailed the division of other personal and financial assets, ensuring each party retained exclusive use of their respective properties and financial resources. The court also addressed the responsibility for debts and liabilities associated with the retained properties. The court concluded by dismissing all remaining applications and appointing Mr Joseph Schepis of Pearsons Lawyers to enforce the orders if necessary.

Orders

Orders of the court

MLC 12354 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR HARRY

Applicant

AND:

MS HARRY

Respondent

ORDER MADE BY:

JUDGE GLASS

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:

1. Within 60 days, the Wife:

(a) pay to the Husband the sum of $139,898; and

(b) discharge the mortgage secured against the property situate at L Street, City G, in the State of New South Wales, being the land more particularly described in Folio … (“L Street”).

2. In the event the Wife fails to comply with paragraph 1, the Husband and the Wife do all acts and things and sign documents as may be required to forthwith sell L Street to a non-party to the proceedings on terms agreed between them and failing agreement, as recommended by the selling agents.

3. The Husband and the Wife do all acts and things and sign documents as may be required to forthwith sell on terms agreed between them and failing agreement, as recommended by the respective selling agents, the following real properties:

(a) M Street, City G, in the State of New South Wales, being the land more particularly described in Certificate of Title Reference … ("M Street"); and

(b) N Street, Town F in the State of Victoria, being the land more particularly described in Certificate of Title Volume … Folio … ("N Street").

4. For the purposes of the sale of the real properties:

(a) in relation to the sale of L Street, O Company be engaged as the selling agents and P Company of Town Q NSW be engaged as the conveyancers;

(b) in relation to the sale of M Street, R Company be engaged as the selling agents and S Company be engaged the conveyancers;

(c) in relation to the sale of N Street, T Company be engaged as the selling agent and U Pty Ltd be engaged as the conveyancer;

(d) the parties shall promptly follow all reasonable recommendations of the selling agent;

(e) both parties shall promptly execute the required documents and authorities as and when required;

(f) the settlement terms of the sale be no longer than 60 days unless otherwise agreed between the parties in writing through their respective lawyers or as recommended by the selling agent;

(g) the Wife vacate and provide vacant possession of L Street at least two weeks prior to settlement;

(h) the parties present the properties they occupy in a clean, tidy and presentable condition for all open inspections and auction dates; and

(i) each party will have liberty to apply in relation to the terms and conditions of the sale.

5. That pending the sale of the real properties, or in the case of L Street, the Wife’s compliance with paragraph 1:

(a) the Wife occupy L Street and pay the Commonwealth Bank of Australia mortgage, rates and all outgoings and insure it against loss and damage;

(b) the Husband have right to occupy and retain rental income from N Street and M Street, and that he pay the associated mortgage repayments, rates and outgoings, and insurances of N Street and M Street.

6. The proceeds of the sales of the real properties including M Street be applied as follows:

(a) firstly, to meet sale costs and expenses, including real estate agent's fees and commissions, and conveyancing costs and disbursements, save and except that U Solicitors be reimbursed disbursements and all out of pocket costs only;

(b) secondly, to discharge the registered mortgages secured against the properties, namely:

(i) CBA mortgage dealing number … for M Street;

(ii) CBA mortgage dealing number … for N Street; and

(iii) CBA mortgage dealing number … for L Street.

(c) thirdly, the sum of $100,000 be invested by the Husband's lawyers, Pearsons Lawyers of Suburb W in a joint interest-bearing trust account, and held and applied to cover the calculation and lodgement of necessary documents in relation to CGT and the payment of CGT when due and payable; and

(d) finally, any balance remaining thereafter be disbursed as to 50 per cent to the Husband and 50 per cent to the Wife, save and except for the adjustment in paragraph 11 hereunder.

7. The Husband otherwise retain for his sole and exclusive use, enjoyment and benefit, all other items of property (both real and personal and including choses-in action and financial resources) in his name, possession and/or control including but not limited to:

(a) his bank account(s) and savings;

(b) Y Pty Ltd;

(c) his interest in U Pty Ltd;

(d) Mr Harry Family Trust;

(e) his personal belongings and effects;

(f) his remainder interest in the estate of his late grandfather; and

(g) his Super Fund 1 contributions and entitlements.

8. The Wife relinquish any right, title or interest in the property to be retained by the Husband including any loan account(s) standing to her credit in the Mr Harry Family Trust and for this purpose she shall sign all document(s) that may be required and prepared at the Husband's expense.

9. The Husband shall be solely liable for and indemnify the Wife in relation to all debts and liabilities in his name or attaching to any item of property he is retaining pursuant to these Orders.

10. The Wife retain for her sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control including but not limited to:

(a) the part property payment made to her pursuant to paragraph 12 of the Orders made on 22 December 2021;

(b) Motor Vehicle 1;

(c) furniture, furnishings and household contents in her possession;

(d) her personal belongings and effects;

(e) her bank account(s) and savings; and

(f) her superannuation contributions and entitlements.

11. The Wife pay to the Husband contemporaneously with receiving her payment from the sale of real estate, the sum of $23,777.80 calculated as $20,350.30 reimbursement for disbursements, and $3,427.50 as per orders made 8th September 2022 and 11th April 2023 together with any further costs as determined by this Court.

12. Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;

(b) any joint bank accounts held by the parties be closed and the proceeds are to be retained by the Husband and each party retain bank accounts and savings in their respective sole name;

(c) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

(d) insurance policies remain the sole property of the owner named thereon;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

13. In the event the Wife refuses or neglects to do all acts and things and/or execute all necessary documentation to give effect to these Orders, then the Husband's solicitor, Mr Joesph Schepis of Pearsons Lawyers Pty Ltd, be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth), to do so in the name of the Wife, and he will do all acts and things necessary to give validity and operation to any deed or instrument required to give effect to the Orders.

14. All extant applications be dismissed.

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.

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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