Lillis and Lillis - [2019] FamCA 347

FAMILY COURT OF AUSTRALIA

LILLIS & LILLIS

[2019] FamCA 347

FAMILY LAW – PROPERTY SETTLEMENT – period of cohabitation for almost nine years –assessment of respective contributions – joint endeavour of the parties to become parents through IVF and surrogacy – property inherited post separation – consideration of s.75(2) of the Family Law Act 1975 (Cth) matters – just and equitable – orders made.

Family Law Act 1975 (Cth), ss 75(2), 79(2), 79(4)
Family Law Rules 2004 (Cth) r 17.03

Holland & Holland [2017] FamCAFC 166
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Lillis

FIRST RESPONDENT:

Mr Lillis

FILE NUMBER:

MLC

8058

2018

DATE DELIVERED:

13 June 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

13 February 2019, 15 February 2019, 12 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

Aughtersons

COUNSEL FOR THE RESPONDENT:

Mr Puckey

SOLICITOR FOR THE RESPONDENT:

Barbayannis Lawyers Pty Ltd

Orders

The Respondent husband pay to the Applicant wife the sum of $515,877.40 (‘the payment’) within 60 days of the date of these Orders (‘the date’).
In the event that the whole of the payment has not been made by the date, then the Respondent husband sell one or more of the real properties situate at NN Street Suburb M; C Street Suburb D; and/or W Street Suburb Z, all in the State of Victoria, as soon as possible out of Court (‘the sale’) and upon completion of the sale or sales, the proceeds of the sale or sales shall be applied as follows:-
(a)firstly, to pay all costs, commissions and expenses of the sale or sales;
(b)secondly, to discharge any mortgage and any other encumbrance affecting the real property or properties;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon calculated in accordance with r.17.03 of the Family Law Rules 2004 (Cth) from the date, to the Applicant wife; and
(d)fourthly, the balance to the Respondent husband.
The Applicant wife otherwise retain all assets in her possession and ownership including all real property registered in her name.
The Respondent husband otherwise retain all assets in his possession and ownership including all real property registered in his name and including his legal interest in W Street Suburb Z in the State of Victoria.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(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)each party otherwise forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner named thereon;
(d)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.
Otherwise all extant applications…

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.

Continue reading Lillis and Lillis

Details

AGLC: Lillis and Lillis [2019] FamCA 347
Case: [2019] FamCA 347
Decision Date: 13 June 2019

CaseChat Overview and Summary

In *Lillis and Lillis*, Hartnett J of the Family Court of Australia was required to determine the property settlement between a husband and wife. The dispute concerned the division of assets and liabilities acquired during the marriage.

The central legal issue before the court was how to equitably distribute the parties' property, including real estate and other assets, and to determine the quantum of any financial adjustment to be made between them. This involved assessing the contributions of each party to the marriage, both financial and non-financial, as well as considering future needs and other relevant factors under the *Family Law Act 1975* (Cth).

Hartnett J ordered the husband to pay the wife a sum of $515,877.40 within 60 days. In the event of non-payment, the husband was directed to sell specified properties located in Victoria, with the proceeds to be applied first to sale costs, then to discharge any mortgages or encumbrances, and thereafter to satisfy the outstanding payment to the wife, including interest. Any remaining balance was to be paid to the husband. The wife was to retain all assets in her possession, and the husband was to retain all assets in his possession, including his legal interest in one of the properties designated for potential sale. Each party was otherwise to retain sole entitlement to property in their possession and forego claims to the other's superannuation. All other extant applications were dismissed.

Orders

Orders of the court

The Respondent husband pay to the Applicant wife the sum of $515,877.40 (‘the payment’) within 60 days of the date of these Orders (‘the date’).

In the event that the whole of the payment has not been made by the date, then the Respondent husband sell one or more of the real properties situate at NN Street Suburb M; C Street Suburb D; and/or W Street Suburb Z, all in the State of Victoria, as soon as possible out of Court (‘the sale’) and upon completion of the sale or sales, the proceeds of the sale or sales shall be applied as follows:-

(a) firstly, to pay all costs, commissions and expenses of the sale or sales;

(b) secondly, to discharge any mortgage and any other encumbrance affecting the real property or properties;

(c) thirdly, so much of the payment as is then outstanding together with interest thereon calculated in accordance with r.17.03 of the Family Law Rules 2004 (Cth) from the date, to the Applicant wife; and

(d) fourthly, the balance to the Respondent husband.

The Applicant wife otherwise retain all assets in her possession and ownership including all real property registered in her name.

The Respondent husband otherwise retain all assets in his possession and ownership including all real property registered in his name and including his legal interest in W Street Suburb Z in the State of Victoria.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-

(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) each party otherwise forego any claims they may have to any superannuation benefits belonging to or earned by the other;

(d) 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.

Otherwise all extant applications are dismissed and the matter removed from the list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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