FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lambeth & Quaid [2024] FedCFamC2F 659
File number(s): CAC 2164 of 2022 Judgment of: JUDGE W J NEVILLE Date of judgment: 30 May 2024 Catchwords: FAMILY LAW – PROPERTY – very short de facto relationship of approximately 2 years – difficulties in assessing contributions based on the limited evidence and especially because the Respondent de facto Husband did not give evidence due to mental health issues and was represented by his litigation guardian – precise arithmetical calculation of contributions to be balanced with considerations of justice and equity – each party to pay their own costs. Legislation: Family Law Act 1975 (Cth) ss.75(2)(o), 90SF(3)(r), 117 Cases cited: Anson v Meek (2017) 57 Fam LR 23; (2017) FLC 93-816
Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387
Chapman v Chapman (2015) 51 Fam LR 176
Dickons v Dickons (2014) 50 Fam LR 244
Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1
AJO & GRO (2005) 33 Fam LR 134
Division: Division 2 Family Law Number of paragraphs: 95 Date of last submission/s: 9 April 2024 Date of hearing: 2 April 2024 Place: Canberra Counsel for the Applicant Ms Davis Solicitor for the Applicant Gabbedy Milson Lee Counsel for the Respondent Ms Bromberger Solicitor for the Respondent Stanford Solicitors & Mediators ORDERS
CAC 2164 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LAMBETH
ApplicantAND: MR QUAID
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
30 MAY 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Forthwith and from the date of these Orders:
(a)The Respondent shall be solely responsible for all outgoings associated with the property situated at B STREET, SUBURB C more particularly described in Certificate of Title Volume … Folio …, (“the Suburb C Property”), including but not limited to utilities, rates, insurances etc. and shall indemnify the Applicant in relation to same;
(b)The Respondent shall be solely responsible for all of the loan repayments as they fall due and shall indemnify the Applicant in relation to same; and
(c)The Respondent shall have right to occupy the Suburb C property including to the exclusion of the Applicant.
2.Within 30 days from the date of these Orders:
(a)The parties shall take all steps and sign all necessary documents to arrange the Suburb C property to be sold;
(b)The sale of proceeds from the Suburb C property shall be paid in the following manner and priority:
(i)Payment of the agent’s commission and advertising or other expenses, if any including but not limited to rates and other outgoings, payable on the sale;
(ii)Payment of the legal costs and outlays relating to the sale;
(iii)Payment of any expenses to be reimbursed to an auctioneer (if any);
(iv)Payment of the amount owing at the time on the loan and to discharge the mortgage;
(v)To pay the Applicant 16% of the net asset…
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CaseChat Overview and Summary
The court faced a challenge in precisely quantifying the contributions given the limited evidence, particularly as Mr Quaid did not provide evidence due to his mental health issues. The court had to weigh the financial contributions against broader principles of fairness and equity. The court concluded that Ms Lambeth was to be solely responsible for the outgoings associated with the Suburb C property and that Mr Quaid was to have the right to occupy the property to the exclusion of Ms Lambeth. The court also ordered that the property be sold, with the proceeds to be distributed according to a specified priority, including payments to cover outgoings, legal costs, loan repayments, and a specified percentage to Ms Lambeth.
The court's reasoning was grounded in the need to achieve a just outcome given the circumstances and the evidence available. It determined that the contributions should be balanced with considerations of fairness, particularly as Mr Quaid's mental health issues prevented him from fully participating in the proceedings. The court also emphasized that each party was to bear their own costs. The final orders included directives for the sale of the Suburb C property, the division of the sale proceeds, and the allocation of responsibilities for outgoings and occupation of the property. Each party was also to retain their personal property and forego claims to the other's superannuation benefits and insurance policies.
Orders
Orders of the court
CAC 2164 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS LAMBETH
Applicant
AND:
MR QUAID
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
30 MAY 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1. Forthwith and from the date of these Orders:
(a) The Respondent shall be solely responsible for all outgoings associated with the property situated at B STREET, SUBURB C more particularly described in Certificate of Title Volume … Folio …, (“the Suburb C Property”), including but not limited to utilities, rates, insurances etc. and shall indemnify the Applicant in relation to same;
(b) The Respondent shall be solely responsible for all of the loan repayments as they fall due and shall indemnify the Applicant in relation to same; and
(c) The Respondent shall have right to occupy the Suburb C property including to the exclusion of the Applicant.
2. Within 30 days from the date of these Orders:
(a) The parties shall take all steps and sign all necessary documents to arrange the Suburb C property to be sold;
(b) The sale of proceeds from the Suburb C property shall be paid in the following manner and priority:
(i) Payment of the agent’s commission and advertising or other expenses, if any including but not limited to rates and other outgoings, payable on the sale;
(ii) Payment of the legal costs and outlays relating to the sale;
(iii) Payment of any expenses to be reimbursed to an auctioneer (if any);
(iv) Payment of the amount owing at the time on the loan and to discharge the mortgage;
(v) To pay the Applicant 16% of the net asset pool; and
(vi) The net balance to the Respondent.
3. For the purpose of Order 2(a), the parties effect the sale of the Suburb C property on such terms and conditions as agreed between them in writing, and failing agreement, as follows:
(a) The parties place the Suburb C property for sale with D Company, Suburb C / Suburb E as the agent having carriage of the sale (“the Agent”);
(b) The parties engage F Conveyancing to be the conveyancing solicitor for the sale or the Suburb C property (“the conveyancing solicitor”);
(c) The terms and conditions of the sale of the Suburb C property shall be as agreed between the parties in writing within 14 days from the date of these Orders unless otherwise agreed in writing, and failing agreement, as recommended by the Agent;
(d) The parties shall promptly sign all documents necessary to facilitate the sale of the Suburb C property including but not limited to the Agency Agreement, a Contract for Sale, a Transfer of Land and a Discharge of Mortgage;
(e) The list price for the Suburb C property be such amount as is agreed between the parties in writing and failing agreement, as recommended by the Agent;
(f) The sale price for the Suburb C property be such amount as is agreed between the parties in writing and failing agreement, the parties shall accept any offer to purchase the Suburb C property that is no less than 95% of the list price determined under Order 3(e);
(g) The parties shall cooperate with the Agent in relation to the marketing of the Suburb C property for sale, including making the keys readily available, allowing inspection of the Suburb C property at all times as reasonably requested by the Agent.
4. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent:
(a) Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders;
(b) Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c) Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other;
(d) All insurance policies are to become the sole property of the owner named herein;
(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f) Any joint tenancy of the Applicant and Respondent in any real or personal estate is hereby expressly severed.
5. In the event that the Suburb C property does not sell at auction within 120 days, absent any other agreement in writing between the parties, the parties may approach a Registrar of the Court to determine any other process to ensure the sale of the Suburb C property.
6. Pursuant to Order 5 herein, the parties may proceed on the basis of each filing and serving a single Affidavit to update the Court, of no more than 4 pages, accompanied by Written Submissions from each party of no more than 2 pages.
7. In the event that either party refuses or neglects to execute any deed or instruction, a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the deed or instrument to effect compliance with the orders herein.
8. Pursuant to Section 117(1) of the Family Law Act 1975 (Cth), each party is to bear their own costs of and incidental to these proceedings.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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