HAWKE & KEMP - [2015] FamCA 524

FAMILY COURT OF AUSTRALIA

HAWKE & KEMP

[2015] FamCA 524

FAMILY LAW – PROPERTY SETTLEMENT – De Facto Relationship – Where, on the balance of probabilities, the parties were in a de facto relationship for a period of 10 years – Where a just and equitable result requires alteration of the parties’ property interests – Where the applicant’s superior capital contribution at the commencement of the parties’ relationship should be accorded appropriate weight – Where the applicant made other significant direct capital contributions – Where the respondent agreed he made no recognisable contribution to the applicant’s superannuation interest – Where some recognition must be given to the parties’ personal exertions for mutual benefit throughout their relationship – Respondent entitled to 20 per cent of the parties’ net assets and Applicant entitled to 80 per cent – Where the disparate financial circumstances of the parties and the capacity of the applicant to improve her financial position justify an adjustment of 5 per cent in favour of the Respondent, calculated on the aggregate value of the parties’ net assets and the real, not notional, capitalised value of the applicant’s superannuation interest

Family Law Act 1975 (Cth), ss 4AA, 44, 90SF, 90SM, 106A,

Beneke v Beneke (1996) FLC 92-698
Bevan & Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116
Browne v Green (1999) FLC 92-873
Dickson & Dickson (1999) FLC 92-843
Farmer v Bramley (2000) FLC 93-060
Hurst & Weber [2009] FamCAFC 137
Marriage of Coghlan (2005) 33 Fam LR 414
Marriage of Clauson (1995) 18 Fam LR 693
Marriage of Kennon (1997) 22 Fam LR 1
Marriage of Parshen (1996) 21 Fam LR 199

Pierce v Pierce (1999) FLC 92-844

Stanfordv Stanford (2012) 247 CLR 108
W & W [2000] FamCA 1302

APPLICANT:

Ms Hawke

RESPONDENT:

Mr Kemp

FILE NUMBER:

NCC 3033

of 2013

DATE DELIVERED:

6 July 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

22 & 23 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bates

SOLICITOR FOR THE APPLICANT:

Kinnear & Company

COUNSEL FOR THE RESPONDENT:

Mr Bateman

SOLICITOR FOR THE RESPONDENT:

Legal Minds

Orders

The parties shall forthwith do all such acts and things and sign all such documents as may be necessary to authorise and direct the applicant’s solicitors to disburse to the parties in equal shares the monies held on trust or in escrow by those solicitors for the parties.
The applicant shall pay to the respondent by way of property settlement pursuant to Part VIIIAB of the Family Law Act the sum of $204,654 within three months of the date of these orders.
In default of compliance with Order 2 hereof, the applicant shall forthwith do all such acts and things and sign all such documents as may be necessary to list for sale by public auction the following parcels of real property:
(a)The property commonly known as B Street, C Town, NSW;
(b)The property commonly known as D Street, C Town, NSW; and
(c)The property commonly…

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 HAWKE & KEMP

Details

AGLC: HAWKE & KEMP [2015] FamCA 524
Case: [2015] FamCA 524
Decision Date: 6 July 2015

CaseChat Overview and Summary

The case of *Hawke & Kemp* involved a dispute between the parties concerning property settlement. Austin J of the Family Court of Australia was required to determine the division of assets and liabilities between the parties.

The central legal issues before the court were how to effect a property settlement pursuant to Part VIIIAB of the *Family Law Act*, including the distribution of monies held in trust, the transfer of specific real property, and the allocation of responsibility for debts and taxes. The court also needed to consider mechanisms for enforcing its orders, including the appointment of the Registrar to execute documents if necessary.

Austin J ordered that monies held on trust by the applicant's solicitors be disbursed equally to the parties. The applicant was ordered to pay the respondent $204,654 within three months as a property settlement. In default of this payment, the applicant was directed to list three specified parcels of real property for sale by public auction within six weeks. The court provided detailed provisions for the conduct of these sales, including the applicant's choice of agent and solicitor, and the process for unsold properties. Upon completion of sales, proceeds were to be applied first to sale costs and outstanding rates, then to the respondent's settlement amount with accrued interest, and the balance to the applicant. Each party was declared the sole owner of other assets in their possession and solely liable for associated debts and any capital gains tax arising from property sales. The Registrar was empowered to execute documents on behalf of either party if they refused to do so. Costs were reserved for 28 days, and all other outstanding applications were dismissed.

Orders

Orders of the court

The parties shall forthwith do all such acts and things and sign all such documents as may be necessary to authorise and direct the applicant’s solicitors to disburse to the parties in equal shares the monies held on trust or in escrow by those solicitors for the parties.

The applicant shall pay to the respondent by way of property settlement pursuant to Part VIIIAB of the Family Law Act the sum of $204,654 within three months of the date of these orders.

In default of compliance with Order 2 hereof, the applicant shall forthwith do all such acts and things and sign all such documents as may be necessary to list for sale by public auction the following parcels of real property:

(a) The property commonly known as B Street, C Town, NSW;

(b) The property commonly known as D Street, C Town, NSW; and

For the purposes of implementation of Order 3 hereof:

(a)

The properties shall be listed by the applicant for auction sales within

6 weeks of the date of the applicant’s default under Order 2 hereof;

(b) The real estate agent and/or auctioneer shall be the real estate agent and/or auctioneer chosen by the applicant;

(d) In the event any property is not sold by auction, or through private negotiation within a further 7 days, then any unsold property shall be submitted to successive auctions within further 6 week periods until sold, otherwise on the same terms and conditions as applied to the first auction; and

(e) The applicant is restrained from charging, mortgaging, or otherwise encumbering any of the properties, other than for the purpose of raising finance to enable her compliance with Order 2 hereof.

Upon completion of the sales pursuant to Orders 3 and 4 hereof, the applicant shall do all such things reasonably necessary to ensure that her solicitor disburses the proceeds of sale as follows:

(a) First, to pay all costs, commissions, and expenses of the sales and to pay any Council and water rates outstanding in respect of the properties;

(b) Secondly, to pay to the respondent the sum of $204,654, together with any interest accrued thereon in accordance with the Family Law Rules from the due date for compliance with Order 2 hereof; and

Unless otherwise provided:

(a) Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder, investment accounts are deemed in the possession of the named investor, and superannuation entitlements are deemed in the possession of the superannuant; and

(b) Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for capital gains tax arising out of the sale of any real property pursuant to these orders.

In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders, the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act.

Costs are reserved for 28 days.

Any and all other outstanding 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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