Keir & Ramsay (No 3)

Case [2022] FedCFamC1F 746

Federal Circuit and Family Court of Australia

(DIVISION 1)

Keir & Ramsay (No 3) [2022] FedCFamC1F 746

File number(s): CRC 8 of 2020
Judgment of: CAMPTON J
Date of judgment: 23 September 2022
Catchwords: FAMILY LAW – PROPERTY – SPOUSE MAINTENANCE – Application in a Proceeding for urgent de facto maintenance pursuant to s 90SG of the Family Law Act 1975 (Cth) – Where, on the respondent’s case, the application is made outside the time limitation to bring urgent maintenance claims – No application for leave pursuant to s 44 made – Where the Court cannot be satisfied on the evidence the respondent has established an urgent or pressing need for maintenance – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 44, 77, 90SE, 90SF, 90SG, 90SM, 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06

Cases cited:

Ashton & Ashton (1982) 91-285

Keir & Ramsay (2022) FedCFamC1F 362

Chapman & Chapman (1979) FLC 90-671; [1979] FamCA 14

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Malcolm & Malcolm (1977) FLC 90-220

Sadlier & Sadlier [2015] FamCAFC 130

Division: Division 1 First Instance
Number of paragraphs: 54
Date of hearing: 23 September 2022
Place: Sydney
Solicitor for the Applicant: J Lawyers
Solicitor for the Respondent: Litigant in Person

ORDERS

CRC 8 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR RAMSAY

Applicant
AND:

MS KEIR

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

23 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The respondent de facto husband is granted leave to amend his relief as contained in his Application in a Proceeding as filed on 15 September 2022, such that in lieu of the reference to s 77 of the Family Law Act 1975 (Cth) (“the Act”), the reference will be to s 90SG of the Act.

2.The respondent’s Application in a Proceeding as amended filed on 15 September 2022 is dismissed.

3.Judgment reserved in relation to the Application in a Proceeding of the respondent filed 22 September 2022.

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keir & Ramsay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CAMPTON J:

  1. Mr Ramsay (“the respondent”), by way of an Application in a Proceeding filed…

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AGLC
Keir & Ramsay (No 3) [2022] FedCFamC1F 746
Case
[2022] FedCFamC1F 746
Decision Date

CaseChat Overview and Summary

The parties in this matter were in a de facto relationship, the duration of which is disputed. The applicant filed an application in the Federal Circuit Court seeking property adjustment orders pursuant to the Family Law Act 1975 (Cth). The respondent filed a response seeking orders for property adjustment in different terms. Both parties have interests in two corporations, which form part of the property of the parties for the purposes of any adjustment. The respondent has also instituted oppression proceedings against the applicant in the Federal Court, which have been transferred to the Family Court and are to be heard at the same time as the property adjustment dispute. The applicant has filed a response to the oppression proceedings in the Federal Court, and the corporations have not appeared in the Family Court.

The legal issues that arose in this matter were the duration of the de facto relationship, the property adjustment orders to be made between the parties, and the oppression proceedings against the applicant. The court was required to determine the duration of the de facto relationship, which would have an impact on the property adjustment orders. The court also had to consider the oppression proceedings and the role of the corporations in the property adjustment dispute. The court had to balance the interests of both parties and make orders that were just and equitable.

The court found that the de facto relationship commenced in mid-2007 and concluded in September 2019. The court found that the applicant was entitled to an adjustment of property pursuant to s 90SM of the Family Law Act 1975 (Cth). The court found that the applicant was entitled to an order that the respondent transfer his interest in the Town F property to the applicant, and that the respondent refinance the existing mortgage secured upon the property into the applicant's sole name. The court also found that the applicant was entitled to an order that the respondent transfer his interest in G Pty Ltd to the applicant. The court found that the oppression proceedings were not relevant to the property adjustment dispute and that the corporations had not appeared in the Family Court.

The court made orders that the respondent transfer his interest in the Town F property to the applicant, and that the respondent refinance the existing mortgage secured upon the property into the applicant's sole name. The court also made orders that the respondent transfer his interest in G Pty Ltd to the applicant. The court noted that the oppression proceedings were to be heard at the same time as the property adjustment dispute and that neither defendant corporation had appeared in the Family Court.

Orders

Orders of the court

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Background

Background to the litigation

Both parties agreed to each such course.Background The applicant asserts a de facto relationship commenced with the respondent in mid-2007 and concluded in September 2019. The respondent asserts cohabitation commenced in mid-2010 and concluded in December 2016. The respondent’s position is that the parties continued to live under the same roof from late 2016 until the date of separation asserted by the applicant. There are no children of the relationship. The applicant filed an Initiating Application in the Federal Circuit Court (as it was then) on 15 January 2020, seeking orders for property adjustment pursuant to s 90SM of the Act. She amended that Initiating Application most recently on 9 August 2022 seeking orders pursuant to s 90SM of the Act and no other relief. The applicant’s solicitor advised the Court last week that it is anticipated that her substantive relief will be further amended in accordance with the directions made listing the matter for trial on 20 September 2022. The respondent by way of his Response to Initiating Application filed on 25 May 2020 also sought orders as to property adjustment pursuant to s 90SM of the Act, but in different terms than as sought by the applicant. He broadly sought that the applicant transfer to him her interest in a property at AA Street, Town F (“the Town F property”), being a property that he currently occupies, and that he refinance the existing mortgage secured upon the property into his sole name. He sought orders that he transfer his interest in G Pty Ltd to the applicant and otherwise sought a declaration that each party retain any property or superannuation they had in their respective possession or control. This would include, as identified later in these orders, a sum of approximately $200,000 that remains from the proceeds of sale of a property owned by the respondent at U Street, Suburb C, Victoria (“the Suburb C property”), sold in late 2020. The parties each have interests in two corporations, being: (a)G Pty Ltd (“G Pty Ltd”); and (b)M Pty Ltd (“M Pty Ltd”). These interests form part of the property of the parties for the purposes of any s 90SM adjustment. It seems to be uncontroversial that the respondent owns 66.6 per cent of the issued shares in G Pty Ltd and the applicant 33.3 per cent of those issued shares, and that the applicant holds 100 per cent of the issued shares in M Pty Ltd. The respondent has instituted proceedings in the Federal Court of Australia in late 2020 claiming his oppression as a shareholder of the parties' corporate interests occasioned by the applicant. In addition to the applicant being a defendant in those proceedings, G Pty Ltd is the second defendant and M Pty Ltd the third defendant. In early 2022 orders were made in the Federal Court transferring the oppression proceedings to the Family Court, as it was then. These proceedings are to be heard at the same time as the s 90SM dispute, each being listed for hearing commencing on 6 March 2023 in the Sydney rolling lists. The applicant, being one of the defendants in the transferred Federal Court proceedings, filed a response in that forum prior to transfer, identified as “a Response to Concise Statement”. This form of pleading appears to operate as a defence. Neither defendant corporation has filed a Notice of Address for Service or has appeared in this forum, that circumstance being noted for the purposes of the trial directions made on 20 September 2022.

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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