Hoskins and Hoskins - [2017] FCCA 1125

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSKINS & HOSKINS

[2017] FCCA 1125

Catchwords:
FAMILY LAW – Property – long marriage – litigation guardian for applicant – applicant’s inheritance – contributions of parties – monies from applicant’s father – applicant’s abuse of drugs and alcohol over years – lengthy period since separation – s.75(2) considerations equal – orders just and equitable.

Legislation:

Family Law Act 1975 (Cth), s.79

Federal Circuit Court Rules 2001 (Cth), r.11
Evidence Act1995 (Cth), ss.12, 13

Cases cited:

L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114
Forster & Forster [2012] FamCAFC 47
Jinson & Fletcher [2015] FamCA 890

Price & Underwood (Divorce Appeal) [2009] FamCAFC 127

Stanford v Stanford [2012] HCA 52

Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey& Attorney General for the Commonwealth of Australia [2003] FamCA 395A
Bonnici & Bonnici (1992) FLC 92-272
Burke & Burke (1993) FLC 92-356
Wall & Wall (2002) FLC 93-110
Jarrott & Jarrott (No.2) (2012) FamCA FC 72
In the Marriage ofJames(1978) 4 Fam LR 401
Gosper & Gosper (1987) 90 FLR
Kessey & Kessey (1994) 18 Fam LR
Pellegrino & Pellegrino (1997) 22 Fam LR 474
Cuneo & Cuneo [2006] FamCA 158
Verley & Verley (No.2) [2008] FamCA 326

Applicant:

MR HOSKINS

Respondent:

MS HOSKINS

File Number:

DGC 3108 of 2015

Judgment of:

Judge O'Sullivan

Hearing date:

12 April 2017

Date of Last Submission:

12 April 2017

Delivered at:

Melbourne

Delivered on:

30 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr Moisidis

Solicitors for the Applicant:

Waters Lawyers

Counsel for the Respondent:

Mr Sweeney

Solicitors for the Respondent:

MDL Law

ORDERS

The parties forthwith shall sign all documents and do all things necessary to sell the real property situate at Property A, being more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the sale”) and the proceeds of the sale shall be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrances affecting the property;
(c)thirdly from the balance 65% to the respondent and 35% to the applicant.
In the event the parties are unable to agree upon the selling agent or conveyancer regarding the sale, the President of the Real Estate Institute or his nominee shall appoint a selling agent or conveyancer.
In the event the parties are unable to agree upon the method of sale or sale price regarding the sale, the method of sale or sale price shall be determined by the selling agent.
Order 2 of the interim orders dated 1 February 2017 be discharged and the applicant retain to the exclusion of the respondent the $126,448.80 currently held on trust by Waters Lawyers Pty Ltd.
That unless otherwise specified in these orders and save for the purpose of enforcing such 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…

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 Hoskins and Hoskins

Details

AGLC: Hoskins and Hoskins [2017] FCCA 1125
Case: [2017] FCCA 1125
Decision Date: 30 May 2017

CaseChat Overview and Summary

The parties to this proceeding were Mr. Hoskins (the applicant) and Ms. Hoskins (the respondent). The dispute concerned the division of property, specifically the former matrimonial home. The matter was heard by Judge O'Sullivan.

The court was required to determine how the proceeds of the sale of the former matrimonial home should be divided between the parties. Additionally, the court needed to decide the fate of a sum of money held on trust, which represented the applicant's inheritance, and to make orders regarding the division of other property and liabilities.

Judge O'Sullivan ordered that the former matrimonial home be sold. The proceeds were to be applied first to the costs of sale, then to discharge any mortgage or encumbrances. The remaining balance was to be divided with 65% to the respondent and 35% to the applicant. In the event of disagreement on the selling agent or conveyancer, the President of the Real Estate Institute would appoint them. If the parties could not agree on the method or price of sale, the selling agent would determine these aspects. The court also ordered that a sum of $126,448.80, held on trust, be retained by the applicant. Further orders specified that each party would retain other property in their possession, forego claims to each other's superannuation, retain their respective bank accounts and insurance policies, and be solely liable for liabilities in their own name or encumbering property they received. Any joint tenancies were expressly severed. All other extant applications were dismissed.

Orders

Orders of the court

The parties forthwith shall sign all documents and do all things necessary to sell the real property situate at Property A, being more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the sale”) and the proceeds of the sale shall be applied as follows:

(a) firstly, to pay all costs, commissions and expenses of the sale;

(b) secondly, to discharge the mortgage and any other encumbrances affecting the property;

In the event the parties are unable to agree upon the selling agent or conveyancer regarding the sale, the President of the Real Estate Institute or his nominee shall appoint a selling agent or conveyancer.

In the event the parties are unable to agree upon the method of sale or sale price regarding the sale, the method of sale or sale price shall be determined by the selling agent.

Order 2 of the interim orders dated 1 February 2017 be discharged and the applicant retain to the exclusion of the respondent the $126,448.80 currently held on trust by Waters Lawyers Pty Ltd.

That unless otherwise specified in these orders and save for the purpose of enforcing such 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 (the property in the real property being deemed to be in the possession of the respondent);

(b) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other but for the these orders;

(d) insurance policies remain the sole property of the beneficiary named therein;

(e) each party be solely liable for and indemnify the other against any liability in their sole name or a liability encumbering any item of property to which that party is entitled pursuant to these orders;

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

All extant applications be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant’s sister (Ms L), the litigation guardian, swore an affidavit on 21 February 2017. In that affidavit Ms L (omitting those matters which were the subject of agreed objections) deposed:“1. I am the litigation guardian and Sister of the Applicant, Mr Hoskins (“Mr Hoskins”)2. The Respondent Wife is Ms Hoskins (“Ms Hoskins”).3. With the Court's permission I am conducting this litigation on Mr Hoskins's behalf.…Relevant Evidence7. I am aware Mr Hoskins and Ms Hoskins purchased the former matrimonial home during 1989. This is evidenced by a Title search obtained by my Solicitors on Mr Hoskins's behalf.Now produced and shown to me and marked “L3” is a true copy of the said title search of Property A.8. …My father said words to the effect, “I have paid Mr Hoskins’s mortgage”.9. My father Mr R died on (omitted) 2014 leaving a will dated (omitted) 2009. There was a dispute between the beneficiaries regarding the will. The Estate was finalised by way of a Deed entered into by the beneficiaries dated (omitted) 2016. As a result of the Deed, Mr Hoskins's entitlement was $126,448.10. Waters Lawyers Pty Ltd is currently holding in their trust account Mr Hoskins's entitlements from the Estate of Mr R……12. Prior to Mr Hoskins entering the Bridge program I supported him by allowing him to live with me. However, I found the arrangement unsustainable and Mr Hoskins too difficult to manage...13 During 2016 Mr Hoskins completed 10 days of detox at the (omitted) and Alcohol Service (formerly (omitted)). He is now residing at a Salvation Army rehabilitation program in (omitted) known as the Bridge program. …15. I can attest to the fact that Mr Hoskins is not currently drinking. The change in Mr Hoskins when he is not drinking is remarkable. He looks healthy again. I have hope for his future.16. I will continue to assist Mr Hoskins as best I can. However, there are limits on what I can do. I cannot provide a permanent place for him to live.…18. Therefore, on behalf of Mr Hoskins, I seek orders for the former matrimonial home at Property A, be sold by private sale. I seek the Court determine Mr Hoskins's share of the sale proceeds.…” As noted earlier, Ms L was not required for cross examination and I accept her evidence. The respondent swore affidavits on 21 January 2016, 13 February 2017 and 29 March 2017 on which she relied. In her affidavit sworn 21 January 2016, the respondent (again omitting those matters which were the subject of agreed objections) deposed:1. I am the Respondent Wife in the proceedings before the Federal Circuit Court at Dandenong.2. I was born on (omitted) 1960.3. The Applicant Husband is Mr Hoskins.4. Mr Hoskins was born on (omitted) 1958.5. Mr Hoskins and I met in 1981.6. We were married on (omitted) 1983.7. We separated on 18 February 2007.8. There are 3 children of the marriage namely:(a) Ms E born (omitted) 1983 and now aged 32;(b) Ms J born (omitted) 1989 and now aged 25;(c) Ms O born (omitted) 1996 and now aged 19.9. The children have all attained the age of 18. Ms E and Ms J are married with their own children. Ms O is in a long-term relationship and resides with her partner.10. Mr Hoskins was a (occupation omitted). He was the primary income earner. I worked in a (employer omitted) in (omitted) until I was five months pregnant with Ms E. I then did not work for an income until 2007 which I obtained a job at the (employer omitted). I am still there.11. As Mr Hoskins’s addiction to alcohol and drugs increased his work decreased.12. We purchased our first home in (omitted) in 1984. We lost this home due to bank foreclosure in approximately 1986 as a direct result of Mr Hoskins’s drug and alcohol addiction. We separated for a period of time, subsequently attended counselling together and Mr Hoskins engaged with a drug addiction doctor, which ultimately resulted in Mr Hoskins making a full recovery. We resumed our marriage and living together in 1987. Ms E lived with me during the separation period.13. In or around the year 2000 Mr Hoskins recommenced drinking and would become intoxicated. In about 2004 he would not come home some nights. By 2006 he was staying away for one to two weeks at a time. Ultimately Mr Hoskins relapsed back into heroin.14. When intoxicated he would become verbally aggressive and intimidating. Over time Mr Hoskins became quite scary to live with.15. We separated on 18 February 2007.16. Although we separated on 18 February 2007, I tried to support Mr Hoskins through rehabilitation programs wanting to see him well and return to his role of a functioning father and husband. Unfortunately I was unable to hep Mr Hoskins despite approximately 2 years, 2007-2009, of me checking him into rehabs, organising facilities to check into, arranging support and counselling for us all and visiting him in rehab regularly. I was also assisting the children through the grief of losing their father to addictions whilst going through my own grief of losing my husband.17. Mr Hoskins’s behaviours became increasingly worrying when he would arrive unannounced, behave erratically, be incoherent and ranting, which resulted in myself and subsequently my daughter Ms J having to take out Intervention Orders to feel safe. There is a current Intervention Order made on 6 December 2011 until further order. Annexed hereto and marked with the letters “H-1” is a true and correct copy of such order.18. Given all the circumstances I felt fearful to commence divorce proceedings as I was concerned with losing a family home for my children and I.19. Mr Hoskins and I purchased the former marital home located at Property A, in (omitted) 1989.20. Mr Hoskins’s father financed the mortgage and we were of the understanding that we would repay him. After making 2 repayments of our loan directly to him, Mr Hoskins’s late father, Mr R, came over to our home one night and said to both of us words to the effect of “I don’t need or want your money, go and arrange for me to pay the loan out in full”.21. Subsequently the loan was paid out in full. This was a gift to both Mr Hoskins and myself as a family.22. Since separation I have continued to maintain the property, both inside and out, performing all regular maintenance duties and keeping the property in good order. I believe I have maintained the value of the home and increased the value of it. I have saved for, and been able to pay for, new carpets ((omitted) 2009), roof tiling ((omitted) 2010), new fencing ((omitted) 2009), Awning blind ((omitted) 2009), security doors ((omitted) 2009), plumbing ((omitted) 2011), etc. I have paid all Council rates and maintained annual insurance ($1,760).23. I presently suffer from hip bursitis. I continually suffer from pain in this regard on a day to day basis. I need to work and earn what I can, however the pain in combination of my age, limits the amount of time I am able.24. I am presently in a stressful financial position and barely able to make ends meet. I am not in a position to obtain any loan to buy Mr Hoskins’s share of the home. I have had meetings with the bank and been advised accordingly. I hope to be able to buy a cheaper house or unit with my share of the settlement proceeds.25. Mr Hoskins is a beneficiary to his father’s Will. Mr Hoskins says that he will receive about $120,000. Annexed hereto and marked with the letters “H-2” is a copy of the Will and the Inventory of Assets and Liabilities. I understand that there is some dispute in relation to the Will which needs to be resolved. But if the Will remains as it is and the assets realised what is referred to in the Inventory then Mr Hoskins may receive about $180,000.26. In all the circumstances I seek to retain the former marital home and Mr Hoskins retain his inheritance.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.