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Mullis & Quimby

Mullis & Quimby

Case [2022] FedCFamC2F 1046 12 August 2022

Property Settlement

Adjustment of Interests

De facto Relationship

Family Violence

Contributions

Equitable Estoppel

Superannuation Splitting

Kennon Claim

Limitation Periods

Natural Justice & Procedural Fairness

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Mullis & Quimby [2022] FedCFamC2F 1046

File number(s): SYC 5033 of 2013

Judgment of: JUDGE MORLEY

Date of judgment: 12 August 2022

Catchwords: FAMILY LAW – PROPERTY – adjustment of interests under section 90SM – de facto Wife asserts Kennon claim –de facto Wife asserts debts which are disputed by the de facto Husband– examination of the property pool where there is no joint ownership of property between the de facto Husband and Wife

Legislation:
Evidence Act 1995 (Cth) – section 50

Family Law Act 1975 (Cth) – sections 44, 66C, 90SF, 90SM, 90SN, 117B

Limitation Act 1969 (NSW) – sections 14 and 16

Judiciary Act 1903 (Cth) – section 79

Cases cited:
Benson & Drury [2020] FamCAFC 303

Dickons & Dickons [2012] FamCAFC 154

Fields & Smith [2015] FamCAFC 57

Fontana & Fontana [2018] FamCAFC 63

Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395

In the Marriage of Biltoft C.J. & Biltoft V. (1995) FLC 92-614

In the marriage of Kowaliw (1981) FLC 91-092

Keating v Keating [2019] FamCAFC 46

Kennon v Kennon (1997) FLC 92-757

Masoud & Masoud [2013] FamCA 763

Masoud & Masoud [2016] 54 Fam LR 245

Minterly & Minterly [2013] FamCA 418

Mullis & Quimby [2019] FCCA 1516

S & S [2003] FamCA 905

Stanford & Stanford (2012) 247 CLR 108

Vadisanis & Vadisanis & Anor [2014] FamCAFC 97

Division: Division 2 Family Law

Number of paragraphs: 182

Date of hearing:

Place: Sydney

Counsel for the Applicant: Mr Jackson

Counsel for the Respondent: Mr Dura
ORDERS

SYC 5033 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MULLIS

Applicant

AND:
MS QUIMBY

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

12 August 2022

THE COURT ORDERS THAT:
1.That pursuant to section 90SM of the Family Law Act 1975 (Cth):-
(a)Within 30 days the Wife pay to the Husband the sum of $288,608.00.
(b)Simultaneously with payment by the Wife to the Husband of the sum referred to in paragraph (a) of this order, the Husband sign all documents and instruments and do all things necessary to transfer to the Wife the whole of his right title and interest in the real property at Street A1, Suburb B in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier … (“the property”) and simultaneously with such payment the Wife shall be solely responsible as between the Wife and the Husband for all outgoings payable in relation to the property and the Wife shall indemnify and keep indemnified the Husband in relation to all and any such payments, and further simultaneously with such payment the Wife shall do all things necessary to discharge the mortgage currently registered over the property by Bank J being registered dealing number …80 (“the mortgage”) so as to release the Husband from all and any liability in relation to the mortgage.
(c)That in the…

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: Mullis & Quimby [2022] FedCFamC2F 1046
Case: [2022] FedCFamC2F 1046
Decision Date

CaseChat Overview and Summary

Mullis and Quimby is a case between the de facto husband and wife who are seeking a property settlement after their separation. The husband filed for property settlement out of time, which was granted by the court. The wife asserted a Kennon claim, asserting that the family violence perpetrated by the husband had a significant adverse impact on her contributions to the marriage. The husband disputed the wife's claim and the court found that the wife's evidence in relation to family violence and its effect on her contributions did not place the matter in the class of exceptional cases where the court's consideration of the effect of a Kennon claim on contributions was appropriate. The court assessed the parties' contributions on a holistic basis and found that contribution-based entitlements favoured the wife at 62.5% with the husband at 37.5%. The court found it was just and equitable to make an order altering the interests of the parties in the property and ordered that the wife retain sole ownership of Street A2, Suburb B, receive transfer from the husband of his interest in Street A1 upon payment to him of such sum as would achieve an overall division of the net relationship pool between the parties 70% the wife and 30% the husband. The wife would also discharge the loan account in the husband's name with Bank J secured by mortgage on Street A1 so as to relieve him of that liability and remove that property as security for that loan.

Orders