FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaye & Tait [2023] FedCFamC2F 1590
File number(s): NCC 674 of 2023 Judgment of: JUDGE KEARNEY Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – Property – de facto – declarations satisfy jurisdiction - global approach adopted – where both the financial resource attributable to the de facto wife and the property pool is considered - 75:25 adjustment of the property pool in favour of the de facto husband – just and equitable Legislation: Family Law Act 1975 (Cth) Part VIIIAB ss 4AA, 4AB, 90RD(1), 90SM, 90XT, 106A Cases cited: Baumgartner v Baumgartner [1987] HCA 59; (1987) 154 CLR 137; (1987) 11 Fam LR 915
Benson & Drury [2020] FamCAFC 303; (2020) 62 Fam LR 1
Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387
Blandford & Esmore [2022] FedCFamC1A 67
C & C [2005] FamCA 429; (2005) FLC 93-220
Dickons & Dickons (2012) 50 Fam LR 24
Fields & Smith [2015] FamCAFC 57; (2015) 53 Fam LR 1
Gadhavi & Gadhavi [2023] FedCFamC1A 117; (2023) 67 Fam LR 174
Hall & Hall [2016] HCA 23
Hobson & Hobson [2020] FamCAFC 251
In the Marriage of Kowaliw [1981] FamCA 70; (1981) FLC 91-092
Jabour & Jabour [2019] FamCAFC 78
Jonah v White [2012] FamCAFC 200; 48 Fam LR 562
Lenehan & Lenehan [1987] FamCA 8; (1987) FLC 91-814
Lotta & Lotta [2017] FamCA 50
Lovine & Connor and Anor [2012] FamCAFC 168
Mallet v Mallet (1984) 156 CLR 605
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583; (1985) 11 Fam LR 930
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; 10 Fam LR 819
Petrellis & Petrellis [2023] FedCFamC1A 104
Petruski & Balewa [2013] FamCAFC 15
Pierce v Pierce [1998] FamCA 74; (1998) 24 Fam LR 377; (1999) FLC 92-844
Stanford & Stanford [2012] HCA 52; [2012] 247 CLR 108; (2012) 47 Fam LR 481
Wallis & Manning [2017] FamCAFC 14
Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 22 September 2023 Place: Newcastle Counsel for the Applicant: Ms Kate Hamilton Solicitor for the Applicant: Gillard Family Lawyers Counsel for the Respondent: Ms Catherine Spain Solicitor for the Respondent: Spire Law Pty Ltd ORDERS
NCC 674 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAYE
Applicant
AND: MR TAIT
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
8 DECEMBER 2023
THE COURT DECLARES THAT:
1.Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (‘the Act’):
(a)the applicant, MS KAYE (‘the de facto wife’) and the respondent, MR TAIT (‘the de facto husband’) were in a de facto relationship for more than two (2) years for the purposes of s 90SB(a);
(b)the de facto relationship ended in May 2020;
(c)the parties made substantial contributions to their property;…
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- Kaye & Tait [2023] FedCFamC2F 1590
- Case
- [2023] FedCFamC2F 1590
- Decision Date
CaseChat Overview and Summary
The court found that Kaye and Tait were in a de facto relationship for more than two years and that a failure to make an order would result in serious injustice. The court considered the contributions made by both parties to their property pool and the financial resources attributable to each. The court adopted a global approach and determined that a 75:25 adjustment in favour of Tait was just and equitable. The court ordered that Kaye receive $200,445.00 from Tait by 2 February 2024. The court also ordered the allocation of assets and liabilities between the parties and directed the sale of the Suburb C property if Tait did not pay the ordered amount by the due date.
The final orders included declarations regarding the de facto relationship, the allocation of property and liabilities, and specific orders for the payment of money and the sale of the Suburb C property. The court also made orders concerning the allocation of superannuation entitlements and the procedures for the sale of the Suburb C property. The court dismissed all other outstanding applications and set timelines for any future applications for costs.
Orders
Orders of the court
NCC 674 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KAYE
Applicant
AND:
MR TAIT
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
8 DECEMBER 2023
THE COURT DECLARES THAT:
1. Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (‘the Act’):
(a) the applicant, MS KAYE (‘the de facto wife’) and the respondent, MR TAIT (‘the de facto husband’) were in a de facto relationship for more than two (2) years for the purposes of s 90SB(a);
(b) the de facto relationship ended in May 2020;
(c) the parties made substantial contributions to their property; and
(d) a failure to make an Order pursuant to s 90SM and/or a declaration pursuant to s 90SL would result in serious injustice to the parties.
2. Pursuant to s 90RD(1) of the Act and for the purposes of s 90SK:
(a) The de facto wife was ordinarily resident in a participating jurisdiction (namely the State of New South Wales) at the time when the application for orders under s 90SM was made; and
(b) Both parties were ordinarily residents of the State of New South Wales during at least one-third of the de facto relationship.
THE COURT ORDERS THAT:
3. These Orders are made by way of alteration of property interests pursuant to s 90SM of the Act.
4. By Friday 2 February 2024, the de facto husband shall pay to the de facto wife the sum of $200,445.00.
5. Subject to these orders, the de facto wife shall retain for her sole use and benefit, and the de facto husband shall relinquish any claim to; all assets and/or financial resources owned or possessed by the de facto wife, or to which the de facto wife is legally or beneficially entitled, included but not limited to:
(a) Personal effects in her possession;
(b) Furniture in her possession;
(c) Contents of bank accounts in her sole name;
(d) Motor Vehicle 1; and
(e) Her Superannuation entitlements.
6. Subject to these orders, the de facto husband shall retain for his sole use and benefit, and the de facto wife shall relinquish any claim to; all assets and/or financial resources owned or possessed by the de facto husband, or to which the de facto husband is legally or beneficially entitled, included but not limited to:
(a) The property situated at B Street, Suburb C in the State of New South Wales (“the Suburb C property”);
(b) Motor Vehicle 2;
(c) Motor Vehicle 3;
(d) Personal effects in his possession;
(e) Furniture in his possession;
(f) Motor Vehicle 4 in his possession;
(g) Contents of bank accounts in his sole name; and
(h) His Superannuation entitlements.
7. The de facto wife shall be responsible for any liabilities incurred in her name and indemnify, and keep indemnified, the de facto husband against such liabilities including but not limited to:
(a) Car loan #...19;
(b) Student debt;
(c) Visa card #...94; and
(d) All other borrowings, personal loans, and credit card facilities and indemnify and keep indemnified, the Respondent against such liabilities.
8. The de facto husband shall be responsible for any liabilities incurred in his name and indemnify, and keep indemnified, the Applicant against such liabilities including but not limited to:
(a) Car loan;
(b) Mastercard;
(c) P Company Credit Card; and
(d) All other borrowings, personal loans, and credit card facilities and indemnify and keep indemnified, the Respondent against such liabilities.
Superannuation Orders
9. With respect to the de facto husband's interest in Super Fund 1 (“the Fund”), member number …:
(a) A base amount of $50,130 is allocated, as required by s90XT(4) of the Family Law Act 1975, to the de facto wife out of the de facto husband's interest in the Fund.
(b) In accordance with paragraph 90XT(1)(a) of the Family Law Act 1975:
(i) The de facto wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(ii) The de facto husband’s entitlement to payments out of his interest in the Fund and the entitlement of such other person to whom a splitable payment may be payable, is correspondingly reduced by force of this Order.
(c) The Trustee of the Fund, D Company (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(i) Calculate, in accordance with the requirements of the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, the entitlement created for the Applicant by Orders 9(a) and 9(b);
(ii) Pay the entitlement whenever the Trustee makes a splitable payment out of the de facto husband’s interest in the Fund.
(d) This Order has effect from the operative time, and the operative time for this Order is four (4) working days from the date of service of a copy of the Order upon the Trustee.
10. Order 9 binds the Trustee of the Fund.
Other orders
11. In the event that the de facto husband does not comply with Order 4 THEN, unless otherwise agreed between the parties in writing, both parties shall do all acts and things and execute all documents necessary to:
(a) Cause the Suburb C property to be listed for sale with a real estate agent by early 2024; and
(b) Sell the Suburb C property.
12. To give effect to Order 11(b):
(a) That until Friday 8 May 2024 or such other period as agreed in writing between the parties, the parties shall do all acts and things necessary to cause the Suburb C property to be listed for sale with a real estate agent by private treaty, and:
(i) The real estate agent shall be as agreed between the parties or, failing agreement, a real estate agent nominated by the New South Wales Chair of the Australian Property Institute or his or her nominee following a request by either party to make such nomination;
(ii) Any upfront expenses incurred with the real estate agent shall be paid equally by the parties.
(iii) The Solicitor acting on the sale shall be as agreed between the parties or, failing agreement, a solicitor nominated by the President of the City E Law Society or his/her nominee following a request by either party to make such nomination;
(iv) Any upfront expenses incurred with the solicitor shall be paid equally by the parties.
(v) The list price shall be as agreed by the parties, or failing agreement, nominated by the real estate agent following a request to make a nomination by either party;
(vi) The sale price shall be as agreed by the parties or, failing agreement, nominated by the real estate agent following a request to make such a nomination by either party;
(vii) The parties shall execute:
A. All documents requested by the real estate agent for the sale of the Suburb C property;
B. The contract for sale; and
C. All other documents necessary to complete the sale.
(viii) The parties shall co-operate in every way with the real estate agent in relation to the sale of the Suburb C property.
(b) If the Suburb C property has not been sold by private treaty by mid-2024 THEN, unless otherwise agreed in writing between the parties, both parties shall do all acts and things so as to sell the Suburb C property by public auction and:
(i) The auctioneer shall be as agreed between the parties or, failing agreement, an auctioneer nominated by the real estate agent following a request to make such a nomination by either party;
(ii) Any upfront expenses incurred with the auctioneer shall be paid equally by the parties.
(iii) The auction shall take place within 8 months of the date of these Orders;
(iv) The reserve price shall be as agreed by the parties or, failing agreement, nominated by the auctioneer following a request to make such a nomination by either party;
(v) The parties shall execute:
A. All documents requested by the auctioneer for the sale of the Suburb C property;
B. The contract for sale; and
C. All other documents necessary to complete the sale.
(vi) The parties shall co-operate in every way with the auctioneer in relation to the sale of the Suburb C property; and
(vii) The parties shall attend at the auction and negotiate with the highest bidder if the reserve price is not reached and, in the event that the parties cannot agree as to the acceptance or rejection of a price less than the reserve price, they shall accept the advice of the auctioneer as to the acceptance or rejection of such price.
(c) If the Suburb C property is not sold at the first auction then, unless otherwise agreed by the parties in writing, the parties shall resubmit the Suburb C property for auction within eight (8) weeks of the first auction and the provisions of Order 12(b) shall apply.
(d) If the Suburb C property is not sold at the second auction then, unless otherwise agreed by the parties in writing, the parties shall leave the Suburb C property on the market for sale by private treaty and liberty is reserved for either party to apply to the Court for further Orders relating to the sale of the Suburb C property.
(e) Until completion of sale of the Suburb C property the de facto husband shall:
(i) Make the following payments as they fall due:
A. Council and water rate instalments;
B. Household building insurance; and
C. The payments in respect of all mortgages secured on the Suburb C property.
(ii) Keep the Suburb C property in good repair (having regard to its present condition); and
(iii) Make a key available and permit inspection of the Suburb C property by agents and prospective purchasers at all reasonable times.
(f) Subject to the de facto husband complying with Order 12(e); he shall have the right to occupy the Suburb C property until completion of the sale of the Suburb C property.
13. The parties shall do all acts and execute all documents to cause the proceeds of sale of the Suburb C property to be applied in the following order:
(a) To discharge any mortgage secured on the Suburb C property;
(b) To pay the reasonable expenses of the sale, including agent’s commission and legal costs and disbursements;
(c) To pay rate adjustments;
(d) To pay the remainder of the sale proceeds (“the remainder”), subject to Order 12(e), as follows:
(i) to the de facto wife in accordance with her written direction and calculated by reference to the following formula:
(SP + WA + HA) x 25% = the de facto wife’s share
Where
SP = the remainder,
WA = De facto wife’s assets and financial resource already in her possession totalling $100,507,
HA = De facto husband’s assets already in his possession totalling $1,103,303; and
(ii) To pay the balance to the de facto husband.
14. If either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these Orders, all Senior Judicial Registrars, Judicial Registrars and Deputy Registrars of the Federal Circuit and Family Court of Australia are hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
15. Save for any prospective cost application/s, all outstanding applications are otherwise dismissed.
16. By 4.00pm on 12 January 2024, any party seeking an order for costs shall file and serve an Application in a Proceeding and supporting affidavit(s) and financial statement (if applicable).
17. By 4.00pm on 2 February 2024, the other party shall file and serve a Response to an Application in a Proceeding, with supporting affidavit(s) and financial statement (if applicable).
18. Should an application for costs be filed, THEN pursuant to rr 5.02(2)(c) and 5.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Family Law Rules’), the application will be listed for hearing before Judge Kearney in chambers with no appearances required.
THE COURT NOTES THAT:
A. In the event that a party fails to comply with the orders made regarding the costs hearing; THEN consideration will be given to the hearing proceeding on an undefended basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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