Jenkins and Anor and Cowper - [2015] FCCA 357

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENKINS & ANOR & COWPER

[2015] FCCA 357

Catchwords:
FAMILY LAW – Property – de facto relationship – dispute as to the length of the relationship – contributions – property adjustment – just and equitable.

Legislation:
Family Law Act 1975, ss.4AA, 90SB, 90SF, 90SM

Cases cited:
Fenton & Marvel [2013] FamCAFC 132
Dahl & Hambly [2011] FamCAFC 202
Pavey & Pavey (1976) FLC 90-051
Greenwood v Merkel [2004] NSWSC 43
Hayes v Marquis [2008] NSWCA 10
Stanford v Stanford [2012] HCA 52
Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
C & C (2005) FLC 93-220
HDM & MM & SJM [2006] FamCA 47
Kowaliw & Kowaliw (1981) FLC 91-092
Weir & Weir (1993) FLC 92-338
Luciano & Luciano (2000) FamCA 401 (non-reportable), O’Ryan
Aleksovski & Aleksovski (1996) FLC 92-705
Sippel & Sippel [2004] FamCA 201
Norbis & Norbis (1986) 161 CLR 513
Parshen & Parshen (1996) FLC 92-720
Pierce & Pierce (1999) FLC 92-844
Tomasetti & Tomasetti (2000) FLC 93-023
Russell & Russell (1999) FLC 92-877
Dickson & Dickson (1999) FLC 92-843

First Applicant:

Second Applicant:

MS JENKINS

(BUSINESS OMITTED) PTY LTD (ACN (omitted))

Respondent:

MR COWPER

File Number:

SYC 7499 of 2010

Judgment of:

Judge Kemp

Hearing dates:

21, 22, 23 and 24 May 2012 and 26, 27 and 28 March 2013 and 9, 10, 11 and 12 September 2014

Date of Last Submission:

12 September 2014

Delivered at:

Sydney

Delivered on:

27 February 2015

REPRESENTATION

Counsel for the First and Second Applicants:

Ms Winfield

Solicitors for the First and Second Applicants:

Katie Smith Solicitor

Counsel for the Respondent:

Ms Cotter-Moroz and then self-represented

Solicitors for the Respondent:

LAC Lawyers and then self-represented

ORDERS

The Court declares that pursuant to s.90RD of the Family Law Act 1975 (“the Act”) a de facto relationship, as defined in s.4AA of the Act, existed between the first applicant and the respondent during the following periods:
(a)August 1995 to December 1997 [2 years 4 months];
(b)July 1999 to October 1999 [3 months]; and
(c)February 2002 to February 2010 [8 years].
being for a period of 10 years and 7 months breaking down on 28 February 2010.
No later than 42 days from the date hereof, the respondent shall transfer to the first applicant the whole of his interest in and to the property situate at and known as Property H, NSW (“the Property H property”), being more particularly described as the whole of the land comprised in Certificate of Title Folio Identifier (omitted) and shall hand to the first applicant or her solicitors a duly executed Real Property Act Transfer in registrable form.
Simultaneously with compliance with order 2 above, the parties shall do all things and sign all documents so as to cause to be discharged the registered first mortgage secured over the Property H property in the joint names of the parties in favour of (omitted) bank.
Simultaneously with compliance with orders 2 and 3 above, the first applicant shall…

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.

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Details

Case: [2015] FCCA 357
Decision Date: 27 February 2015

CaseChat Overview and Summary

In *Jenkins and Anor and Cowper*, heard by Judge Kemp, the primary dispute concerned the division of property following the breakdown of a de facto relationship. The applicants sought declarations regarding the existence and duration of the de facto relationship and orders for the division of assets, specifically two properties. The respondent contested aspects of the relationship and the proposed property settlement.

The court was required to determine whether a de facto relationship, as defined by the *Family Law Act 1975* (Cth), existed between the first applicant and the respondent, and if so, for what periods. A further issue was the just and equitable division of the parties' property, including the allocation of two specific properties and the resolution of financial adjustments between them.

Judge Kemp declared that a de facto relationship existed between the first applicant and the respondent for a total of 10 years and 7 months, spanning three distinct periods between August 1995 and February 2010. The court then made orders for the division of property, requiring the respondent to transfer his interest in the Property H property to the first applicant, subject to the discharge of a mortgage. Simultaneously, the first applicant was to pay the respondent an adjustment sum and transfer her interest in the Property G property to the respondent. Provisions were also made for the sale of Property H if the initial transfer and payment were not completed, with the net proceeds to be distributed according to specific deductions, with the balance going to the respondent. The court also ordered the respondent to indemnify the first applicant for outgoings on Property G upon her compliance with the transfer order. Finally, the court made orders restraining the applicants from enforcing certain costs judgments and appointed the Registrar to execute documents if a party failed to comply with the orders.

Orders

Orders of the court

The Court declares that pursuant to s.90RD of the Family Law Act 1975 (“the Act”) a de facto relationship, as defined in s.4AA of the Act, existed between the first applicant and the respondent during the following periods:

(a) August 1995 to December 1997 [2 years 4 months];

(b) July 1999 to October 1999 [3 months]; and

being for a period of 10 years and 7 months breaking down on 28 February 2010.

No later than 42 days from the date hereof, the respondent shall transfer to the first applicant the whole of his interest in and to the property situate at and known as Property H, NSW (“the Property H property”), being more particularly described as the whole of the land comprised in Certificate of Title Folio Identifier (omitted) and shall hand to the first applicant or her solicitors a duly executed Real Property Act Transfer in registrable form.

Simultaneously with compliance with order 2 above, the parties shall do all things and sign all documents so as to cause to be discharged the registered first mortgage secured over the Property H property in the joint names of the parties in favour of (omitted) bank.

Simultaneously with compliance with orders 2 and 3 above, the first applicant shall pay to the respondent the sum of $71,863.18 (“the adjustment sum”) less the sum of $10,000.00, being $61,863.18 (“the settlement sum”).

Simultaneously with compliance with orders 2, 3 and 4 above, the first applicant shall transfer to the respondent the whole of her interest in and to the property situate at and known as Property G, NSW (“the Property G property”), being more particularly described as the whole of the land comprised in Certificate of Title Folio Identifier (omitted) and hand to the respondent or any solicitor retained by him, a duly executed Real Property Act transfer in registrable form.

That upon the first applicant’s compliance with order 5, the respondent shall indemnify the first applicant in relation to outgoings in respect of the Property G property, including all rates, taxes, charges and insurance and all fines levied by Council in respect of the said property.

If there is non-compliance with orders 2, 3 and 4 above, then within 70 days of the date of these orders, the first applicant and the respondent are to join in and do all acts and things and sign all necessary documents in order to effect a sale of the Property H property and pay the whole of the net proceeds of sale, as referred to in order 8 below.

That the following amounts be deducted from the purchase money on the sale of the Property H property:

(a) The costs, expenses and commission of the real estate agent or agents acting on the sale of the property.

(b) The costs, fees and disbursements of the lawyer or lawyers acting for the parties on the sale of the property.

(d) Adjustment of water rates and council rates.

(e) The balance to the respondent.

That pending settlement of the sale of the Property H property, the first applicant shall continue to manage the Property H property, collect the rent from the tenants of the Property H property and apply the rent in payment of all outgoings and expenses on the Property H property.

10.

That if there is non-compliance with orders 2, 3 and 4 above and orders 7 and 8 above are implemented, then within 90 days of the date of these orders the respondent is to pay the first applicant the sum of $368,136.82 plus the sum of $10,000.00, being $378,136.82.

11.

That both parties shall do all acts and things and execute all necessary documents and writings and give all consents necessary to give effect to these orders.

12.

The first applicant and second applicant are hereby restrained by themselves, their servants and agents from enforcing any costs judgment obtained against the respondent in the Supreme Court of New South Wales.

13.

That in the event that a party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the orders made, that the Registrar of the Court at Sydney be appointed pursuant to s.106A to execute the deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.

14.

That either party have leave to relist the matter on 7 days’ notice in respect of the implementation of all or any of these orders and in relation to any further machinery required to effect a sale of the Property H property.

15.

That, save as hereinbefore mentioned, and as between the parties each be declared the owner of all items of personalty, real estate, motor vehicles, choses in action, superannuation, bank accounts, business undertakings, related plant and equipment and any other such property in their name, control and possession as at the date hereof.

16.

If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.

17.

Save as to costs, all other applications be dismissed and the matter be removed from the active pending cases list.

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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