Keem & Polmear - [2023] FedCFamC2F 196

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keem & Polmear [2023] FedCFamC2F 196

File number(s): PAC 1498 of 2020

Judgment of: JUDGE NEWBRUN

Date of judgment: 23 February 2023

Catchwords: FAMILY LAW – PROPERTY– Just and equitable property Orders made.

Legislation: Family Law Act 1975 (Cth) ss 4AA, 90SF(3), 90SM(3)

Cases cited:
Bevan v Bevan (2013) 49 Fam LR 387

Black & Kellner (1992) 15 Fam LR 343

In the Marriage of SW and WH Weir (1992) 16 Fam LR 154

Lotta & Lotta [2017] FamCA 50

AJO & GRO (2005) 33 Fam LR 134

Division: Division 2 Family Law

Number of paragraphs: 89

Date of hearing: 9–10 February 2023

Place: Parramatta

Counsel for the Applicant: Mr Hogg

Solicitor for the Applicant: Maatouks Law Group

Respondent: The Respondent appeared in person
ORDERS

PAC 1498 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KEEM

Applicant

AND:
MR POLMEAR

Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

23 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Within 42 days of the date of these Orders, the de facto husband is to pay to the de facto wife’s solicitors’ trust account the sum of $465,458 on behalf of the de facto wife.
2.On payment of the above sum of $465,458 by the de facto husband in compliance with the above Order, the parties shall forthwith take all necessary steps to cause the total trust monies of $344,001 to be paid to the de facto wife (such trust monies held by Caldwell Martin Cox and Maatouks Law Group).
3.On compliance by the parties with the above Orders, the parties shall retain the assets in their respective names or possession to the exclusion of the other.
4.In the event that the de facto husband fails, neglects, or omits to comply with Order 1 above, then:
(a)The parties shall forthwith take all necessary steps to cause the above trust monies of $344,001 to be paid as follows:
(i)$189,200 to the de facto wife;
(ii)$154,800 to the de facto husband;

(b)The de facto husband shall forthwith do all acts and things and sign all documents necessary so as to effect the sale of R Street, Town Q NSW and better described as Lot … in DP … (“the R Street, Town Q property”) for the best price reasonably obtainable in the following manner:
(i)The de facto wife through her solicitor will provide to the de facto husband within 14 days, the names and expected costs associated with three real estate agents she proposes to sell the R Street, Town Q property, with the de facto husband to nominate one of the three real estate agents provided within a further 14 days;
(ii)The de facto wife through her solicitor will provide to the de facto husband within 14 days, the names and expected costs associates of three solicitors/conveyancers she proposes to act for the parties in relation to the sale of the R Street, Town Q…

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

AGLC: Keem & Polmear [2023] FedCFamC2F 196
Case: [2023] FedCFamC2F 196
Decision Date

CaseChat Overview and Summary

The parties in this case were a de facto couple who had been together for approximately 42 years. The de facto wife applied for property settlement orders under the Family Law Act 1975. The de facto husband opposed the application and sought to retain the family home. The Court was required to determine the just and equitable property settlement between the parties. In determining the appropriate property settlement, the Court considered the parties' contributions to their relationship and assets, the presence of any children of the relationship, and any other matters the Court considered relevant under s 79(4) of the Family Law Act. The Court found the parties' contributions to their relationship and assets to be roughly equal. The Court also found that the de facto husband had made premature distributions of assets from the proceeds of the sale of a previous family property, which should be taken into account in favour of the de facto wife. The Court made Orders for the de facto husband to pay the de facto wife $465,458 within 42 days. If the de facto husband failed to make this payment, the family home was to be sold and the net proceeds of sale were to be distributed between the parties. The de facto wife was to receive 55% of the net proceeds of sale, which was to be paid to her in cash. The de facto husband was to receive 45% of the net proceeds of sale. The de facto husband was also to retain the family home chattels and 45% of the trust monies. The de facto wife was to retain her car and 55% of the trust monies. The Court was satisfied that its Orders represented a just and equitable property settlement between the parties.

Orders