HOWLETT & PIKE - [2010] FMCAfam 845

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOWLETT & PIKE

[2010] FMCAfam 845

FAMILY LAW – De facto property settlement – seven year relationship – no children – impact of initial contributions – assessment of financial contributions where one party applied the majority of their wage to reducing the mortgage whilst the other party paid for day to day living expenses – financial contributions of one party when the other party chose to be unemployed for long period of time – effect of a direct contribution by third party of building on the property which increased the property’s value but where third party chooses not to be party to proceedings, and does not pursue equitable rights – view of a party to the seriousness of de facto relationship not a relative factor in the alteration of property interests.

Family Law Act 1975 (Cth), ss.4AA, 39A & 39B, 90SF(3) (r), 90SL & 90SM

Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
Wright v Wright and Adams (1997) FLC 92-761

Applicant:

MS HOWLETT

Respondent:

MR PIKE

File Number:

DNC 251 of 2009

Judgment of:

Turner FM

Hearing dates:

9, 12 & 13 July 2010

Date of Last Submission:

13 July 2010

Delivered at:

Darwin

Delivered on:

11 August 2010

REPRESENTATION

Counsel for the Applicant:

Ms Holtham

Solicitors for the Applicant:

Holtham & Associates

Counsel for the Respondent:

Mr Peters

Solicitors for the Respondent:

Maleys Barristers & Solicitors

ORDERS

That within 45 days from the date hereof the Respondent pay to the Applicant the sum of $281,634.85.
That upon such payment of the sum of $281,634.85 the Applicant relinquish all of her interest in Property H in the Northern Territory of Australia being Lot [omitted] and being more particularly described in Certificate of Title Volume [omitted] (hereinafter referred to as ‘the property”) and the Respondent be entitled to retain the property for his sole use and benefit.
That in the event the Respondent does not pay the sum of $281,634.85 to the Applicant as ordered in Order 1 within 45 days, then the Respondent shall do all things and sign all such documents as are necessary so as to cause the property to be sold by private treaty, with the property to be listed with [omitted] in Darwin.
In the event that the property does not sell by private treaty within

3 months then the Respondent shall forthwith do all things and sign all documents necessary so as to cause the property to be offered for sale by public auction at a reserve price recommended by the auctioneer, and in particular is to:
(a)Place the property with an auctioneer recommended by [omitted], for the sale of the property by public auction at the earliest possible date;
(b)Execute all documents requested by the auctioneers for the sale of the property;
(c)Pay to the auctioneers any sums requested for advertising expenses in relation to the auction;
(d)Attend at the auction sale and negotiate with the highest bidder in the event that the reserve…

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 HOWLETT & PIKE

Details

AGLC: HOWLETT & PIKE [2010] FMCAfam 845
Case: [2010] FMCAfam 845
Decision Date: 11 August 2010

CaseChat Overview and Summary

The case of Howlett v Pike involved a dispute between two former de facto partners over the division of their property following the end of their relationship. The applicants, Howlett, sought a financial settlement, and the respondents, Pike, disputed the amount claimed. The case was heard in the Family Court of Australia. The central issue in this case was the equitable division of property acquired during the course of a seven-year de facto relationship, which produced no children. The court had to consider the financial contributions made by each party, the impact of the initial contributions, and the value added to the property by a third party.

In its reasoning, the court considered the substantial financial contributions made by each party to the relationship and the property. The applicants' contributions, primarily in the form of mortgage payments, were contrasted with the respondents' contributions to day-to-day expenses. The court also examined the value added to the property by a third party, which was not a party to the proceedings. The court determined that the seriousness of the relationship, as perceived by one party, was not a relevant factor in adjusting the property interests. The court's decision was grounded in a detailed assessment of the financial contributions and the value of the property.

The court ordered that the respondents pay the applicants a sum of $281,634.85 within 45 days, following which the applicants would relinquish their interest in the property. If the respondents failed to make the payment, the property was to be sold by private treaty, and if unsuccessful, by public auction. The court also outlined the division of other personal property between the parties, with specific items allocated to each. Additionally, the respondents were required to pay fixed costs of $1,500 within 45 days. The court's orders were designed to ensure an equitable division of the property, taking into account the financial contributions and the value of the assets involved.

Orders

Orders of the court

That within 45 days from the date hereof the Respondent pay to the Applicant the sum of $281,634.85.

That upon such payment of the sum of $281,634.85 the Applicant relinquish all of her interest in Property H in the Northern Territory of Australia being Lot [omitted] and being more particularly described in Certificate of Title Volume [omitted] (hereinafter referred to as ‘the property”) and the Respondent be entitled to retain the property for his sole use and benefit.

That in the event the Respondent does not pay the sum of $281,634.85 to the Applicant as ordered in Order 1 within 45 days, then the Respondent shall do all things and sign all such documents as are necessary so as to cause the property to be sold by private treaty, with the property to be listed with [omitted] in Darwin.

In the event that the property does not sell by private treaty within

3 months then the Respondent shall forthwith do all things and sign all documents necessary so as to cause the property to be offered for sale by public auction at a reserve price recommended by the auctioneer, and in particular is to:

(a) Place the property with an auctioneer recommended by [omitted], for the sale of the property by public auction at the earliest possible date;

(b) Execute all documents requested by the auctioneers for the sale of the property;

(d) Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;

(e) Execute a contract of sale;

(f) Co-operate in every way with the auctioneers in relation to the auction of the property;

(g) Execute all other documents necessary to complete the sale.

Pending sale of the property the Respondent is solely responsible for the payment of all rates charges and other outgoings associated with the property and must maintain the property.

Upon sale of the property the proceeds of the sale shall be disbursed in the following manner:

(a) In payment of reasonable legal expenses, agent’s commission, auction expenses (if any) and sale costs with respect to the sale of the property;

(b) The sum of $281,634.85 to the Applicant;

The Respondent to deliver to the Applicant within 14 days from the date hereof:

(a) Curtains hung by the Applicants mother;

(b) Outdoor table that was near the donga;

(d) Double bed that was in the donga;

That the Applicant retain for her sole use and enjoyment:

(a) Supreme Caravan ( with the Applicant to take all steps necessary to transfer the caravan into her name);

(b) Holden ute;

That the Respondent retain for his sole use and enjoyment:

(a) Commodore motor vehicle;

(b) Quintrex boat;

(d) Sale proceeds from the motorbike;

(e) Ride on mower;

(f) Slasher;

(g) Welder;

(h) Model helicopter/airplane;

(i) The benefit of any superannuation policies in the Respondent’s name.

10.

That otherwise each party retain all other property in their possession, and be responsible for any liabilities associated with such property.

11.

Each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to s.106 (A) of the Family Law Act 1975 is authorised to sign any such document on behalf of the defaulting party.

12.

That within 45 days from the date hereof the Respondent pay to the Applicant fixed costs in the sum of $1,500.00 for costs in respect to the oral application by the Respondent as to a Declaration as to the date of commencement of the de facto relationship.

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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