FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Lotte & Inger (No 2) [2024] FedCFamC1F 72
File number(s): BRC 14228 of 2021 Judgment of: HOGAN J Date of judgment: 13 February 2024 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where there is a period of cohabitation of approximately 18 years – Where the matrimonial home is the only asset for consideration –Where a litigation guardian was appointed for the Respondent – Where the Respondent has not meaningfully participated in the proceedings – Where the hearing proceeded on an undefended basis – Where the Applicant’s contributions have been made more arduous by the Respondent’s behaviour before and after separation Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth)
Cases cited: Lotte & Inger [2022] FedCFamC2F 559
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Kennon v Kennon (1997) FLC 92-757; [1985] FamCA 57
Lee Steere and Lee Steere (1985) FLC 91-626; [1985] FamCA 57
Mallet and Mallet (1984) 156 CLR 605; [1984] HCA 21
Pastrikos and Pastrikos (1980) FLC 90-897; [1979] FamCA 56
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Waters and Jurek (1995) FLC 92-635;[1995] FamCA 101
Weir & Weir (1992) 16 Fam LR 154; [1992] FamCA 69
Division: First Instance Number of paragraphs: 69 Date of hearing: 12 February 2024 Place: Brisbane Counsel for the Applicant: Ms Karaman Solicitor for the Applicant: McLaughlins Lawyers Litigation Guardian for the Respondent: Mr Nylander ORDERS
BRC 14228 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LOTTE
Applicant
AND: MR NYLANDER AS LITIGATION GUARDIAN FOR MR INGER
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
13 FEBRUARY 2024
IT IS ORDERED, BY WAY OF FINAL ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT 1975 (CTH), THAT:
1.Within thirty (30) days of the date of these orders, the Respondent pay the Applicant the sum of $405,000.00 by payment into the trust account of the Applicant’s solicitors, McLaughlins Lawyers.
2.Save for the purpose of using the Town D property as collateral for any borrowings needed to pay the Applicant the amount of $405,000.00, the Respondent is restrained and an injunction issue restraining him, his servants or agents, from dealing with or further encumbering the real property located at F Street, Town D in the State of Queensland, more particularly known as Lot … on SP … ("the Town D property").
3.In the event the Respondent fails, omits or neglects to comply with Order 1 above, then the Town D property shall be offered for sale by private treaty and, for the purpose of this:
(a)the Applicant shall be appointed as trustee for sale and shall hold the Town D property on trust for the parties (“the Trustee”); and
(b)the Town D property shall be sold pursuant…
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- AGLC
- Lotte & Inger (No 2) [2024] FedCFamC1F 72
- Case
- [2024] FedCFamC1F 72
- Decision Date
CaseChat Overview and Summary
The court found that Inger had made significant contributions to the family, including being the primary carer for Lotte during his recovery from an accident, managing the household and caring for the children, and contributing financially to the family. In contrast, Lotte exhibited controlling behavior, perpetrated physical and sexual violence, and emotional and psychological abuse against Inger. Given these findings, the court decided that it was appropriate to order that Lotte pay Inger $405,000 from the sale of the matrimonial home. The court also restrained Lotte from dealing with or further encumbering the property, except for using it as collateral for borrowings to pay Inger. If Lotte failed to make the payment, the property would be sold by private treaty, with Inger appointed as the trustee for the sale.
The court considered the relevant matters under s 75(2) of the Family Law Act 1975 (Cth) and concluded that it was appropriate for the parties to retain their respective properties. The court also considered the s 79(4) considerations, including the absence of a presumption of equality of contribution and the exercise of discretion based on common law and equity principles. The court accepted Inger's unchallenged evidence about her contributions and the impact of Lotte's conduct on her, as well as the evidence given by witnesses called in her case.
The final orders of the court included directing Lotte to pay Inger $405,000 within 30 days, restraining Lotte from dealing with the property except for using it as collateral for borrowings, and appointing Inger as the trustee for the sale of the property if Lotte failed to make the payment. The court also outlined the procedure for the sale of the property, the responsibilities of the parties during the sale, and the distribution of the sale proceeds. The litigation guardian for Lotte remained appointed until the payment was made or the property was sold.
Orders
Orders of the court
IT IS ORDERED, BY WAY OF FINAL ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT 1975 (CTH), THAT:
1. Within thirty (30) days of the date of these orders, the Respondent pay the Applicant the sum of $405,000.00 by payment into the trust account of the Applicant’s solicitors, McLaughlins Lawyers.
2. Save for the purpose of using the Town D property as collateral for any borrowings needed to pay the Applicant the amount of $405,000.00, the Respondent is restrained and an injunction issue restraining him, his servants or agents, from dealing with or further encumbering the real property located at F Street, Town D in the State of Queensland, more particularly known as Lot … on SP … ("the Town D property").
3. In the event the Respondent fails, omits or neglects to comply with Order 1 above, then the Town D property shall be offered for sale by private treaty and, for the purpose of this:
(a) the Applicant shall be appointed as trustee for sale and shall hold the Town D property on trust for the parties (“the Trustee”); and
(b) the Town D property shall be sold pursuant to the sale orders herein; and
(c) as Trustee, the Applicant shall do all things necessary to procure the sale of the Town D property including:
(i) engage and direct a Real Estate Agent as to the marketing, listing and sale of the Town D property; and
(ii) negotiate terms of sale with potential buyers of the Town D property; and
(iii) engage and instruct a firm of solicitors to act in the sale; and
(iv) execute all documents in respect of the sale, including the Contract of Sale and Transfer documents.
4. Upon appointment of the Trustee, the Respondent shall provide the Trustee with all records and documents in his possession or control relating to the Town D property including:
(a) a current certificate of insurance, council rates and water notices; and
(b) any Certificate of Title; and
(c) any document pertaining to the purchase, improvement and preservation of the Town D property relevant to the capital gains tax base of the Town D property.
5. The Respondent shall ensure that the Town D property remains insured and shall pay all insurance premiums, water charges and municipal rates as and when they fall due and, should there be any water charges and municipal rates outstanding at the date of settlement of the sale of the Town D property, he shall be solely responsible for paying the same.
Conditional Occupancy
6. Pending the sale, the Respondent shall have sole use and occupation of the Town D property provided that he co-operate in every way with the Real Estate Agent, Auctioneer or employee or agent thereof (“the Agent”) in relation to the sale including:
(a) ensuring that the Town D property is clean, neat and in good condition at the time of any inspection, including inspection for the purpose of marketing, and any day of auction; and
(b) permitting access to the Town D property and photographs to be taken of the Town D property for the purposes of advertising and marketing the Town D property for sale; and
(c) allowing inspection and access to the Town D property at all times reasonably requested by the agent.
7. In the event the Respondent remains living in the Town D property at the date when the contract for its sale is signed:
(a) the Respondent shall vacate the Town D property fourteen (14) days prior to the settlement date of the sale of the Town D property; and
(b) the Respondent shall be given written notice of the settlement date at least seven (7) days prior to the date on which he is required to vacate the Town D property; and
(c) upon vacating the Town D property, the Respondent shall deliver to the Agent all keys, codes or devices in his possession or control for all locks, gates, doors and security systems on the Town D property; and
(d) the Respondent shall be responsible for all rates, electricity, insurance and outgoings of the Town D property as they fall due up to and including the settlement date of the sale of the Town D property; and
(e) the Respondent shall cause to be repaired any damage to the Town D property, such repair to be at the Respondent’s own expense.
8. If the Respondent fails to comply with any of the matters set out in Order 6:
(a) the Respondent shall be given seven (7) days’ notice to vacate the Town D property; and
(b) the Respondent shall vacate the Town D property within fourteen (14) days of receiving the notice to vacate; and
(c) the Applicant shall thereafter be entitled to sole use and occupancy of the Town D property provided that she comply with the matters set out in Order 6.
Property Sale
9. In default of payment by the Respondent pursuant to Order 1, the Trustee shall cause the Town D property to be listed for sale by private treaty within seven (7) days thereafter (“the Listing Date”).
10. In the event the Town D property is not subject to an unconditional Contract of Sale within three (3) months from the Listing Date, the Trustee shall be at liberty to sell the Town D property by auction where:
(a) the reserve price shall be as agreed by the parties and failing agreement, as nominated by the appointed Agent; and
(b) the sale price will be an amount in excess of the reserve price; and
(c) in the event of the reserve price not being reached – the sale price will be such amount as is agreed between the parties and, failing agreement, any offer received after the auction to buy the Town D property at a price that is at least 90% of the reserve price shall be accepted by the Trustee.
11. In the event that the Town D property is not sold at auction pursuant to the above order, or within fourteen (14) days thereafter by negation, the Trustee will cause further auctions of the Town D property to be held every three (3) months with the reserve price to decrease by an amount as agreed between the parties but failing agreement, by no more than 10% on each occasion and otherwise on the same terms and conditions as the above order until the Town D property is sold.
12. The parties shall be equally responsible for and cause payment of 50% of any upfront costs in relation to the sale of the Town D property and, in the event one party pays all of the costs in the first instance, that party will be reimbursed 50% of those costs from the other party’s entitlement upon distribution of the sale proceeds to the parties.
13. Upon either compliance with Order 1 or at the direction of the solicitors acting in respect of the sale of the Town D property, the Applicant shall provide a signed withdrawal of Caveat for Caveat Dealing Number … lodged over the Town D property and the lodgement fee for the withdrawal.
14. On settlement of the sale of the Town D property, the proceeds of sale be paid in the following manner and priority:
(a) all costs and expenses of sale including legal costs and disbursements, agents commission, valuer’s fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties as foreshadowed in Order 12); and
(b) the balance then remaining be paid to the parties as follows:
(i) such amount to the Applicant as is necessary to see her receive 45% of the balance then remaining; and then
(ii) the amounts required to pay any municipal and water rates outstanding with respect to the Town D property; and then
(iii) $5,000 to be paid to the Applicant in satisfaction of the Order made by the Senior Judicial Registrar on 23 February 2022; and then
(iv) the balance to be paid to the Respondent.
15. Unless otherwise specified in these orders and save for the purpose of enforcing the payment of any monies due under them or any subsequent orders:
(a) each party is entitled, to the exclusion of the other, to be the sole legal and beneficial owner of all property (including any choses-in-action) in that party’s possession or under that party’s control, including but not limited to:
(i) any interest held by that party in any real property; and
(ii) any shares in any corporate entity or any interest under any Trust; and
(iii) any funds standing to the credit of that party in any bank account; and
(iv) any furniture, furnishings and personal effects of whatsoever nature in that party’s possession; and
(v) any entitlement to superannuation; and
(b) each party is solely liable for and shall indemnify the other in relation to any liability encumbering any item of property to which that party is entitled pursuant to this Order.
Litigation Guardian
16. The Litigation Guardian shall remain appointed for the Respondent in these proceedings until payment has been made to the Applicant pursuant to Order 1 or to the parties pursuant to Order 14.
17. In the event that a party refuses or neglects to sign a document necessary to give effect to these Orders within fourteen (14) days after being requested to do so, and any such refusal, failure or neglect is evidenced by an affidavit filed and served by or on behalf of the party alleging this, a Registrar or Senior Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 1) is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument and operation to these Orders.
18. Upon the giving of seven (7) days’ notice in writing, the parties have liberty to apply to the Court in relation to the implementation or interpretation of these Orders.
19. Save as to the issue of costs, all outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
IT IS NOTED THAT:
A. There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B. The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Given such observations, and noting them, I have concluded that it is appropriate to proceed on the basis that the parties will retain whatever property each currently has in their respective possessions. I have considered it appropriate, therefore, to focus simply upon the Town D property, which has been valued most recently via a kerbside inspection (necessitated because of the Respondent’s refusal to allow the valuer access to the property) at $900,000. The s 79(4) considerations In considering the relevant matters mandated by s 79 of the Act, it must be remembered that:(a)“community of ownership arising from marriage has no place in the common law”; and(b)there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union; and(c)the exercise of the discretion conferred must not proceed on an assumption that the parties’ interests in property are or should be different from those determined by common law and equity. As noted earlier, there is no evidence from the Respondent about his contributions during the period of cohabitation or his current financial circumstances. Because of his failure to engage in the process established by the Rules applicable in this jurisdiction (including his failure to comply with the ongoing obligation of disclosure imposed by the same on all parties to litigation in the Court), the Applicant has been required to attempt to gather such information about his financial circumstances as she can. In attempting to obtain such evidence, a Notice to Admit pursuant to r 8.01 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) was sent to the Litigation Guardian on behalf of the Respondent on 25 January 2024. The Respondent has not filed a Notice Disputing the Facts or Documents referenced in the Notice to Admit. Consequently, pursuant to r 8.02, he is to be taken to have admitted, for the purpose of these proceedings, that the facts asserted in the Notice to Admit and the documents referred to therein are true. Reference to the Notice to Admit reveals the extent of the deemed admissions for the purpose of these proceedings. As well as the deemed admissions, I record that I accept the Applicant’s unchallenged evidence about her contributions, about the Respondent’s conduct toward her – both during and after their cohabitation (including after they separated under the one roof in August 2020 until her departure from the former matrimonial home in about April 2021) – and the impact such conduct has had upon her – both previously and in the sense, historically, and also at present. I also accept the unchallenged evidence given by those witnesses called in her case. I do not intend to recite all of the evidence called in the Applicant’s case or given by her. Rather, I simply note that I particularly accept the Applicant’s evidence that: (a)she was the Respondent’s primary carer during his recovery from the accident and did all things necessary to assist with his rehabilitation and recovery;[3] and[3] Affidavit of the wife filed 24 November 2023, paragraph 129; 186 – 189.(b)she was primarily responsible for maintaining the household and, after the children’s respective births, was primarily responsible for their care – noting that, following the birth of the parties’ third child, she was responsible, at least initially, for meeting the needs of three children under six years of age; and(c)she applied whatever income or money she received from either part-time work or government provided benefits to the support of the family; and(d)during the period of cohabitation – including after the parental separation in August 2020 but prior to the physical separation in about April 2021 – the Respondent: (i)exhibited controlling behaviour by, for example: (A)preventing the Applicant from seeking remuneration outside of the home;[4] and[4] Affidavit of the wife filed 24 November 2023, paragraphs 31 – 36.(B)dictating what she should wear;[5] and [5] Affidavit of the wife filed 24 November 2023, paragraphs 30, 59 – 60.(C)locking her passport in a safe and not providing her with the code;[6] and [6] Affidavit of the wife filed 24 November 2023, paragraph 95.(ii)perpetrated physical violence against her including, for example: (A)accusing her of cheating and then bashing her;[7] and [7] Affidavit of the wife filed 24 November 2023, paragraphs 38 – 39.(B)in 2004, after she told him she was leaving him, beat her up and threw her belongings over the balcony;[8][8] Affidavit of the wife filed 24 November 2023, paragraph 51.(iii)perpetrated sexual violence against her including:(A)checking her genital area when she arrived home from work and accusing her of being intimate with someone else;[9] and [9] Affidavit of the wife filed 24 November 2023, paragraph 38.(B)forcing her to have sexual relations in a manner she did not want to engage in;[10] and [10] Affidavit of the wife filed 24 November 2023, paragraph 44.(C)threatening to urinate on her; (iv)perpetrated emotional and psychological abuse against her including, for example:(A)constantly accusing her of cheating;[11] and(B)threatening to take his own life on the occasions she left, on the basis that he would action such threat if she did not return to him;[12] and(C)degrading her verbally, including in front of the children and others;[13] and(D)directing her, on occasion, to get on her hands and knees in front of him, and spitting on her;[14] and(E)isolating her from family and friends.[15][11] Affidavit of the wife filed 24 November 2023, paragraphs 25, 27, 30, 38, 64.[12] Affidavit of the wife filed 24 November 2023, paragraphs 53, 55.[13] Affidavit of the wife filed 24 November 2023, paragraphs 26, 63, 65.[14] Affidavit of the wife filed 24 November 2023, paragraph 65.[15] Affidavit of the wife filed 24 November 2023, paragraphs 35, 58.