MARTELLI & WHEELER

Case [2018] FCCA 3640


FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTELLI & WHEELER [2018] FCCA 3640
Catchwords:
FAMILY LAW – Application for an adjustment of property interests – undefended hearing – jurisdiction in de facto proceedings – leave to proceed – applicable principles – respondent had taken no part, and filed no evidence, in proceeding – respondent had accordingly made no financial disclosure – necessity for the applicant to prove case in absence of evidence from respondent – applicable principles – modest asset pool – applicant solely responsible for the care of the children – applicant’s contributions of a magnitude to support making of the orders applied for – just and equitable that an adjustment of property interest be made.

Legislation:

Evidence Act1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.4AA, 44, 75, 79, 90RA, 90SB, 90SF, 90SK, 90SL, 90SM, 90SS, 90ST

Family Law Rules 2004 (Cth), rr.11.01, 11.02

Federal Circuit Court Rules 2001 (Cth), rr.24.03, 25.12

Cases cited:

A and Z [2006] FamCA 179

Abbott and Abbott [1995] FamCA 5; (1995) FLC 92-582

Althaus & Althaus (1982) FLC 91-233

Atkinson and Atkinson (1997) FLC 92-728

Baranski & Baranski [2012] FamCAFC 18

Bevan & Bevan [2014] FamCAFC 19

Black & Kellner (1992) FLC 92-287

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Bulleen & Bulleen [2010] FamCA 187

Chang & Su [2002] FamCA 156; (2002) FLC 93-117

Dey v Victorian Railways Commissioners(1949) 78 CLR 62

Dickons & Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244

Edmunds & Edmunds (2018) 50 FLC 93-847

Elkhouri & Amatullah[2017] FamCA 688

F and S [2005] FamCA 44; (2005) FLC 93-208

Fearne & Fearne (No 2) [2012] FMCAfam 917

Ferraro & Ferraro[1992] FamCA 64; (1993) FLC 92-335

Gadzen & Simkin [2018] FamCAFC 218

Giunti & Giunti[1986] FamCA 15; (1986) FLC 91-759

Hall and Hall (1979) FLC 90-679 Hickey & Hickey; the Attorney General for the Commonwealth of Australia[2003] FamCA 395; (2003) FLC 93-143

HML v R[2008] HCA 16; (2008) 235 CLR 334

Holden & Wolff (2014) 52 Fam LR 60

In the marriage of Briese & Briese[1985] FamCA 23; (1986) FLC 91-713

In the marriage of Krebs(1976) FLC 90-117

In the Marriage of Rolfe[1979] FamCA 65; (1979) FLC 90-629

Jacks & Parker[2011] FamCAFC 34

JEL v DDF(2001) FLC 93-075

Johnson v Page[2007] FamCA 1235; (2007) FLC 93,344

Jones v Dunkel (1959) 101 CLR 298

Kannis & Kannis (2003) FLC 93-135

Kennon & Kennon [1997] FamCA 27

Kennon v Spry (2008) 238 CLR 366

Kuglioski v Metrobus[2004] HCA 34; (2004) 220 CLR 363

Lanceley and Lanceley [1994] FamCA 94; (1994) FLC 92-491

Liversey v Jenkins[1984] UKHL 3; (1985) 1 All ER 106

Mallet v Mallet[1984] HCA 21; (1984) 156 CLR 605

Masland & Eaton (No 2) [2012] FMCAfam 407

McDermott & McDermott[2017] FamCA 376

McMahon and McMahon (1976) FLC 90-128

Mitchell & Nevis [2014] FCCA…

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AGLC
MARTELLI & WHEELER [2018] FCCA 3640
Case
[2018] FCCA 3640
Decision Date

CaseChat Overview and Summary

This matter concerned an application for an adjustment of property interests in de facto proceedings before Judge A Kelly. The applicant sought orders regarding the division of a modest asset pool, while the respondent took no part in the proceedings and filed no evidence, consequently making no financial disclosure. The applicant therefore bore the onus of proving her case in the absence of any contribution or evidence from the respondent.

The court was required to determine whether a de facto relationship existed between the parties and, if so, whether leave should be granted to proceed with the application for property adjustment. Further, the court needed to consider the applicant's entitlement to an adjustment of property interests, particularly in light of her sole responsibility for the care of the parties' children and her contributions to the relationship.

In reaching its decision, the court applied the principles governing de facto property proceedings under the *Family Law Act 1975* (Cth). Judge A Kelly found that a de facto relationship did exist and granted the applicant leave to proceed. The court reasoned that the applicant's contributions, particularly in her role as the primary caregiver for the children, were of a magnitude that justified an adjustment of property interests. The court considered it just and equitable to make such an adjustment, given the circumstances.

The court made orders declaring the existence of the de facto relationship and granting leave to proceed. The respondent was ordered to transfer his interest in a property to the applicant, who was then to be solely responsible for the associated mortgage and outgoings. In the event of the respondent's non-compliance, the applicant's solicitor was appointed to execute the necessary documents. Each party was to retain their respective superannuation entitlements and all other property in their possession, with each party being solely responsible for their own debts and liabilities. The applicant was also granted sole authority to execute documents for the children's passports.

Orders

Orders of the court

1.

Pursuant to s 90SL of the Family Law Act 1975 (Cth), declare that a de facto relationship existed between the parties to this proceeding.

2.

Pursuant to s 44(6) of the Family Law Act 1975 (Cth), the Applicant have leave to proceed nunc pro tunc as a party to a de facto relationship seeking orders pursuant to section 90SM of the Act.

3.

Pursuant to s 90SM(1)(d) of the Family Law Act 1975 (Cth), within 30 days the Respondent do all things and sign all documents as may be required to transfer to the Applicant (the Transfer) all of his right, title and interest in the property situate at Property A, in the State of Victoria, being the land more particularly described in Certificate of Title, Volume …Folio …(Property A Property).

4.

Contemporaneously with the Transfer the Applicant discharge and/or refinance into her sole name, the mortgage number … in favour of the National Australia Bank (the Mortgage) encumbering the Property A Property and thereafter be responsible for and indemnify the Respondent with respect to the mortgage and all rates, taxes and outgoings and any other liability which may be incurred with respect to the Property A Property from the date of the Transfer.

5.

In default of compliance with paragraph (3) of this Order:

(a) the Applicant have sole conduct of the Transfer of the Property A Property;

(b) the Applicant’s solicitor (being at the date of these Orders Ms Allison Nicholls of Lander & Rogers) be and is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign or execute (including by electronic means) any deed or instrument in the name of the Respondent to give effect to the Transfer (including any withdrawal of caveat) and be authorised to do all other acts and things necessary to give full effect to the said Transfer including with respect to the discharge and/or refinancing of the mortgage.

6.

Each party retain, to the absolute exclusion of the other, their entitlements in any superannuation fund in which they hold a member entitlement.

7.

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 other property (including choses-in-action) in the possession of such party as at the date of these Orders;

(b) each party 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 beneficiary named therein;

(d) each party be solely liable for and indemnify the other against any encumbering any item of property to which that party is entitled pursuant to these orders; and

(e) each party be solely responsible for the repayment of and indemnify the other in relation to any outstanding credit card balances or personal loans in their name or in which they are personally liable.

8.

Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the Applicant be solely authorised to execute all documents necessary to obtain a passport and/or passport renewals for and on behalf of the children or any of them as follows:

(a) [W] born …2001;

(b) [X] born …2005;

(c) [Y] born …2007; and

(d) [Z] born …2008.

AND THE COURT NOTES THAT

A. In accordance with s 90ST of the Family Law Act 1975 (Cth) it is intended that this Order will, as far as is practicable, finally determine the financial relationships between the parties and avoid the institution of further proceedings between them.

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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