HASKELL & NEWCOMBE - [2020] FCCA 1165

FEDERAL CIRCUIT COURT OF AUSTRALIA

HASKELL & NEWCOMBE

[2020] FCCA 1165

Catchwords:
FAMILY LAW – Property – long relationship – treatment of inheritance which forms a vast majority of the pool.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79, 79(2), 90SB(a), 90SD, 90SF, 90SF(3), 90SL, 90SM, 90SM(1), 90SM(3), 90SM(4), 106A
Family Law Rules 2004 (Cth), r.17.3

Cases cited:

Bevis & Bevis [2014] FamCAFC 147

Bonnici & Bonnici (1992) FLC 92-272

Dickons & Dickons (2012) 50 Fam LR 244

Farmer & Bramley [2000] FamCA 1615

G & G (1984) FLC 91-582

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

Horrigan & Horrigan [2020] FamCAFC 25

Hurst & Hurst [2018] FamCAFC 146

Jabour & Jabour [2019] FamCAFC 78

Pierce & Pierce (1999) FLC 92-844

Singerson & Joans [2014] FamCAFC 238

Stanford v Stanford (2012) 247 CLR 108

Watson & Ling (2013) 49 Fam LR 303

Applicant:

MR HASKELL

Respondent:

MS NEWCOMBE

File Number:

MLC 12433 of 2018

Judgment of:

Judge Harland

Hearing dates:

10 & 11 March 2020

Date of Last Submission:

11 March 2020

Delivered at:

Melbourne

Delivered on:

14 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Sweeney

Solicitors for the Applicant:

Lander & Rogers

Counsel for the Respondent:

Mr Arnold

Solicitors for the Respondent:

Rochelle Belcher

ORDERS

That within 60 days the parties do all acts and things and sign all documents necessary to cause the following to occur simultaneously:
(a)the respondent pay the applicant the sum of $702,226;
(b)each party shall do all such things and execute all documents necessary to transfer the property situate at and known as A Street, Suburb B, in the State of Victoria being the whole of the land contained in folio identifier Volume … Folio … and Volume … Folio … ("the A Street, Suburb B property") to the sole name of the respondent at the cost of the respondent;
(c)the applicant shall do all acts and things to cause the withdrawal of the caveat registered by him over the real property situate at and known as C Street, Suburb D, in the State of Victoria more particularly described in Certificate of Title Volume … Folio … ("the C Street, Suburb D property"); and
(d)the applicant pay out the Westpac personal loan.
That in the event the respondent is in default of Order 1(a) she is to pay interest on the amount in Order 1(a) or such part thereof which remains due to be paid to the applicant at the rate prescribed by r.17.3 of the Family Law Rules 2004 (Cth), provided the applicant has complied with his obligations under Order 1(c).
That pursuant to s.90SL of the Family Law Act the applicant shall be and hereby is declared to be the sole and absolute owner at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)the Motor Vehicle 1;
(d)the Motor Vehicle 2;
(e)all contributions to or benefits or entitlements arising from…

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 HASKELL & NEWCOMBE

Details

AGLC: HASKELL & NEWCOMBE [2020] FCCA 1165
Case: [2020] FCCA 1165
Decision Date: 14 May 2020

CaseChat Overview and Summary

In the matter of Haskell & Newcombe, heard by Judge Harland, the dispute concerned the division of property following a long-term relationship. The central issue revolved around the treatment of an inheritance that constituted the vast majority of the asset pool.

The court was required to determine how to fairly distribute the marital assets, particularly in light of the significant inheritance received by one party. This involved considering the contributions of each party to the relationship and the acquisition, conservation, and improvement of the property, as well as the future needs of each party.

Judge Harland reasoned that while the inheritance formed the bulk of the assets, the contributions of the other party to the relationship and the preservation of the asset pool warranted a significant adjustment in favour of that party. The court applied principles of equitable distribution under the *Family Law Act*, balancing the direct financial contributions with non-financial contributions and future needs. The court ordered that the respondent pay the applicant a sum of $702,226, and that the A Street, Suburb B property be transferred to the respondent's sole name. The applicant was also ordered to withdraw a caveat over the C Street, Suburb D property and to pay out a specific personal loan. Further orders declared each party the sole owner of various personalty, monies, vehicles, and superannuation entitlements not otherwise dealt with, and addressed the indemnification of debts. The court also made provision for the Registrar to execute documents if a party failed to do so.

Orders

Orders of the court

That within 60 days the parties do all acts and things and sign all documents necessary to cause the following to occur simultaneously:

(a) the respondent pay the applicant the sum of $702,226;

(b) each party shall do all such things and execute all documents necessary to transfer the property situate at and known as A Street, Suburb B, in the State of Victoria being the whole of the land contained in folio identifier Volume … Folio … and Volume … Folio … ("the A Street, Suburb B property") to the sole name of the respondent at the cost of the respondent;

(c) the applicant shall do all acts and things to cause the withdrawal of the caveat registered by him over the real property situate at and known as C Street, Suburb D, in the State of Victoria more particularly described in Certificate of Title Volume … Folio … ("the C Street, Suburb D property"); and

(d) the applicant pay out the Westpac personal loan.

That in the event the respondent is in default of Order 1(a) she is to pay interest on the amount in Order 1(a) or such part thereof which remains due to be paid to the applicant at the rate prescribed by r.17.3 of the Family Law Rules 2004 (Cth), provided the applicant has complied with his obligations under Order 1(c).

That pursuant to s.90SL of the Family Law Act the applicant shall be and hereby is declared to be the sole and absolute owner at law and in equity of:

(a) all items of furniture, furnishings, personalty, chattels and jewellery;

(b) all monies (whether held in cash or in deposit with any financial institution);

(d) the Motor Vehicle 2;

(e) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;

in the possession, custody or control or in which he has an interest which are not otherwise dealt with in these Orders.

That pursuant to s.90SL of the Family Law Act the respondent shall be and hereby is declared to be the sole and absolute owner at law and in equity of:

(a) all items of furniture, furnishings, personalty, chattels and jewellery;

(b) all monies (whether held in cash or in deposit with any financial institution);

(d) the Motor Vehicle 3;

(e) the Motor Vehicle 4;

all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant in the possession, custody or control or in which she has an interest which are not otherwise dealt with in these Orders.

That the applicant indemnify and keep the respondent indemnified in relation to the Westpac credit card debt in the applicant's sole name.

That the parties indemnify and keep the other indemnified in relation to all other debts in their sole names.

That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s.106A Family Law Act that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

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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