FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lappin & Menz [2025] FedCFamC2F 321
File number(s): DUC 402 of 2023 Judgment of: JUDGE OBRADOVIC Date of judgment: 14 March 2025 Catchwords: FAMILY LAW – PROPERTY – De facto relationship of 12 years – Greater earning capacity – Carer responsibilities – Existing student loan – Applicant proposes 50/50 – Respondent proposes no adjustment or 15/85 – Just and equitable considerations Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM Cases cited: Bevan & Bevan [2013] FamCAFC 116
Chapman & Chapman [2014] FamCAFC 91
Costello & Langdon [2024] FedCFamC1A 168
Oamra & Williams [2021] FamCAFC 117
Peters & Walker [2015] FamCA 732
Robb & Robb (1995) FLC 92-555
Russell & Russell (1999) FLC 92-877
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Trevi & Trevi [2018] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 98 Date of hearing: 7 February 2025 Place: Dubbo Counsel for the Applicant: Mr J Kadar Solicitor for the Applicant: Baldock Stacy & Niven Counsel for the Respondent: Mr C Alexander Solicitor for the Respondent: Campbell Paton & Taylor
Table of Corrections 14 March 2025 At paragraph 78 the word “respondent’s” is replaced with the word “applicant’s”. ORDERS
DUC 402 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LAPPIN
Applicant
AND: MS MENZ
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS:
1.That within three months of the date of these orders, the respondent pay to the applicant the sum of $179,048.
2.That other than as provided in Order 1, each party shall be solely entitled to all assets both real and personal in his or her possession at the date of these orders.
3.That other than as provided for in these orders, each party shall be solely responsible for all liabilities in their respective names, and shall indemnify the other party from and in respect of all actions, claims, suits and demands as may be made in respect of such liabilities.
4.That in the event that the respondent does not make the payment in Order 1 by the specified date, then the respondent shall immediately do all things required to sell the property at B Street, City C (“City C property”) as follows:
(a)The City C property shall be listed for sale by way of private treaty with such real estate agent and solicitor/conveyancer as agreed to between the parties, and failing agreement:
(i)With an agent nominated by the President of the Real Institute of NSW; and
(ii)A solicitor/conveyancer nominated by the President of the NSW Law Society.
(b)In the event that the City C property is not sold by private treaty, pursuant to Order 4(a) above, within 6 months of the date of these Orders, then the respondent shall do all acts and things necessary to effect the sale of the City C property by auction within a further period of 6 weeks.
(c)In the event the City…
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CaseChat Overview and Summary
The court considered several factors, including the duration of the relationship, each party's financial contributions, and the carer responsibilities. Judge Obradovid acknowledged the significant contributions of Ms. Menz as the primary carer and the financial burden of her student loan. Despite Mr. Lappin's higher earning capacity, the court determined that a 50/50 split was not equitable given Ms. Menz's carer responsibilities and financial obligations. The court ultimately decided that a 60/40 split in favour of Ms. Menz was just and equitable, with specific orders for the sale of a property to facilitate the distribution of assets.
In summary, the court ordered that Ms. Menz pay Mr. Lappin $179,048 within three months or sell a specified property to meet this obligation. The property's proceeds were to be distributed to satisfy debts and then split between the parties, with Ms. Menz receiving 60% and Mr. Lappin receiving 40%. Additionally, a base amount of $60,957 was allocated to Mr. Lappin from Ms. Menz's superannuation, with further split payments to be made according to the Family Law Superannuation Regulations. These orders reflect the court's consideration of the parties' respective contributions and responsibilities throughout their relationship.
Orders
Orders of the court
DUC 402 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR LAPPIN
Applicant
AND:
MS MENZ
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS:
1. That within three months of the date of these orders, the respondent pay to the applicant the sum of $179,048.
2. That other than as provided in Order 1, each party shall be solely entitled to all assets both real and personal in his or her possession at the date of these orders.
3. That other than as provided for in these orders, each party shall be solely responsible for all liabilities in their respective names, and shall indemnify the other party from and in respect of all actions, claims, suits and demands as may be made in respect of such liabilities.
4. That in the event that the respondent does not make the payment in Order 1 by the specified date, then the respondent shall immediately do all things required to sell the property at B Street, City C (“City C property”) as follows:
(a) The City C property shall be listed for sale by way of private treaty with such real estate agent and solicitor/conveyancer as agreed to between the parties, and failing agreement:
(i) With an agent nominated by the President of the Real Institute of NSW; and
(ii) A solicitor/conveyancer nominated by the President of the NSW Law Society.
(b) In the event that the City C property is not sold by private treaty, pursuant to Order 4(a) above, within 6 months of the date of these Orders, then the respondent shall do all acts and things necessary to effect the sale of the City C property by auction within a further period of 6 weeks.
(c) In the event the City C property does not sell by auction, pursuant to Order 4(b) above, then the respondent shall continue to list the property for auction every 6 weeks, with a reserve price of 5% less than that which was set at auction previously, until such time as the property sells.
(d) The proceeds of sale of the City C property shall be paid in the following manner and priority:
(i) To discharge the mortgage to D Bank, Mortgage No. …;
(ii) Payment of any outstanding Land Tax, Council rates, water rates, and other levies and outgoings on the City C property;
(iii) Payment of the real estate agent’s fees and commission on the sale and legal costs associated with the sale; and
(iv) The balance:
A. As to 40% to the applicant; and
B. As to 60% to the respondent.
5. That the orders below have effect from the operative time.
6. That in accordance with s 90XT(4) of the Family Law Act 1975 (Cth) (“Act”), a base amount of $60,957 be allocated to the applicant out of the respondent’s interest in Super Fund 1 (Member No. …) noting that the respondent’s said interest is held under the member name “Ms Menz”.
7. That pursuant to s 90XT(1)(a) of the Act, whenever a splitable payment become payable in respect of the respondent’s interest in Super Fund 1, the trustee of Super Fund 1 shall pay to the applicant the entitlement calculated in accordance with Pt 6 of the Family Law Superannuation (Regulations) 2001 (Cth) using the base amount allocated in Order 6 and there shall be a corresponding reduction in the entitlement the respondent would have had in Super Fund 1 but for these orders.
8. That, having been accorded procedural fairness in relation to the making of this Order, this Order binds the trustee of the superannuation fund.
9. That the operative time for this order is 4 business days after the date of service of these orders on the trustee of the superannuation fund.
10. Pursuant to s 106A of the Act a Registrar of the Federal Circuit and Family Court of Australia is authorised to execute any document or do any such thing as is required to give effect to these orders in the event of a default of a party to execute such document or do such things as is necessary under these orders.
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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