LONGWORTH & DEANE - [2017] FamCA 870

FAMILY COURT OF AUSTRALIA

LONGWORTH & DEANE

[2017] FamCA 870

FAMILY LAW – PROPERTY – Application by the wife for an adjustment of property interests – Where the parties are aged 65 and 59 – Where the parties were in a relationship for 11 years and married for three years – Where there are no children of the relationship – Where the Court found that the debts that the wife asserted she owed to third parties would not be pursued by them – Where each party’s paid legal fees were added back to the property pool – Section 75(2) factors – Adjustment of 2.5 per cent to the husband for the wife’s greater future earning capacity – Overall property adjustment of 52.5 per cent to the husband and 47.4 per cent to the wife.

FAMILY LAW – PROPERTY – CONTRIBUTIONS – Where the parties contributed equally during the relationship – Where the wife asserted her contributions were made more onerous by reason of family violence – Where the Court found this case is not an exceptional case as required by Kennon & Kennon (1997) FLC 92-757.

Family Law Act 1975 (Cth) ss 75(2), 79(2)
Succession Act 2006 (NSW)

Kennon & Kennon (1997) FLC 92-757

APPLICANT:

Ms Longworth

RESPONDENT:

Mr Deane

FILE NUMBER:

SYC

3479

2013

DATE DELIVERED:

3 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

23, 24, 25 and 26 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC with Ms Sproston

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

Orders

IT IS ORDERED

That within 28 days of the date of these orders, the husband pay to the wife the sum of $161,243 by way of property settlement.
That simultaneously with the payment referred to in Order 1, the wife sign all documents required to transfer to the husband her interest in the property known as B Street, C Town being Lot … in Community Plan … (“the property”).
That simultaneously with the payment referred to in Order 1, the husband do all things required to discharge the mortgage over the property to E Bank and procure the release of the wife from any obligation pursuant to that mortgage.
That the wife do all things required to transfer to the husband her interest in the E Bank … Account; The NAB Business Cash Maximiser account no …82 and to transfer to the husband, should he require her to do so, any share held by her in D Pty Ltd and resign as a director.
That in the event the husband has not paid the sum in Order 1 by the due date, then each of the parties shall do all acts and things required to sell the property and to disburse the proceeds of sale in the following priority:
(a) In payment of the mortgage;
(b) In payment of agent’s costs and solicitor’s costs of sale;
(c)In payment of…

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: LONGWORTH & DEANE [2017] FamCA 870
Case: [2017] FamCA 870
Decision Date: 3 November 2017

CaseChat Overview and Summary

In the matter of *Longworth & Deane*, Rees J of the Family Court of Australia considered an application by the wife for an adjustment of property interests. The parties, aged 65 and 59 respectively, had been in a relationship for 11 years and married for three years, with no children of the relationship. The court noted that debts asserted by the wife to third parties would not be pursued, and that each party's paid legal fees were added back to the property pool.

The primary legal issues before the court were the appropriate division of the parties' property pool, including the consideration of section 75(2) factors, and whether the wife's contributions were made more onerous by reason of family violence. The court was required to determine if the circumstances met the exceptional threshold established in *Kennon & Kennon* for such a consideration.

Rees J found that the parties had contributed equally during the relationship. The court determined that the case was not exceptional enough to warrant an adjustment under *Kennon & Kennon* due to family violence. Applying section 75(2) factors, the court made an adjustment of 2.5 per cent in favour of the husband, reflecting the wife's greater future earning capacity. This resulted in an overall property adjustment of 52.5 per cent to the husband and 47.5 per cent to the wife.

The court ordered that within 28 days, the husband pay the wife $161,243 by way of property settlement. Simultaneously, the wife was to transfer her interest in the property at B Street, C Town to the husband, and the husband was to discharge the mortgage over the property and procure the wife's release from that obligation. The wife was also to transfer her interest in certain bank accounts and shares to the husband. In the event the husband failed to make the payment by the due date, the parties were to sell the property, with proceeds to be disbursed in a specified priority order, including payment of the sum owed to the wife with interest. Otherwise, each party was to retain property in their possession.

Orders

Orders of the court

IT IS ORDERED

That within 28 days of the date of these orders, the husband pay to the wife the sum of $161,243 by way of property settlement.

That simultaneously with the payment referred to in Order 1, the wife sign all documents required to transfer to the husband her interest in the property known as B Street, C Town being Lot … in Community Plan … (“the property”).

That simultaneously with the payment referred to in Order 1, the husband do all things required to discharge the mortgage over the property to E Bank and procure the release of the wife from any obligation pursuant to that mortgage.

That the wife do all things required to transfer to the husband her interest in the E Bank … Account; The NAB Business Cash Maximiser account no …82 and to transfer to the husband, should he require her to do so, any share held by her in D Pty Ltd and resign as a director.

That in the event the husband has not paid the sum in Order 1 by the due date, then each of the parties shall do all acts and things required to sell the property and to disburse the proceeds of sale in the following priority:

(a) In payment of the mortgage;

(b) In payment of agent’s costs and solicitor’s costs of sale;

(c) In payment of the sum of $161,243, together with interest as prescribed by the Family Law Rules 2004 (Cth) from the due date to the date of payment, to the wife;

(d) In payment of the balance to the husband.

That, subject to these orders, each party shall be entitled to retain all property in her or his possession at the date of these orders.

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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