Palen and Palen - [2020] FCCA 1228

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALEN & PALEN

[2020] FCCA 1228

Catchwords:
FAMILY LAW – Undefended hearing – property adjustment – assessment of contributions – orders made – parenting – best interests of child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA,65DA(2),75, 75(2),79,79(2),90XT(1)(a),106A

Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases cited:

Lotta & Lotta [2017] FamCA 50

Applicant:

MS PALEN

Respondent:

MR PALEN

File Number:

PAC 1719 of 2019

Judgment of:

Judge Newbrun

Hearing date:

17 March 2020

Date of Last Submission:

17 March 2020

Delivered at:

Parramatta

Delivered on:

22 May 2020

REPRESENTATION

Solicitor for the Applicant

Ms Khalil - Bell Lawyers

No appearance by the Respondent

ORDERS

Property Aspect

That within 120 days from the date of these Orders, the Applicant Wife shall pay the Respondent Husband in the amount of $93,618.
That within 28 days of being served with a copy of these Orders by email, the Respondent Husband shall vacate the A Street, Suburb B property and shall be permitted to retain his personal effects. In the event that Respondent Husband fails to vacate the A Street, Suburb B property after the expiry of this Order, then the Applicant Wife shall be permitted to change the locks of such property and obtain sole occupation of same.
That simultaneous with Order 1 above, the parties shall do all acts and things so as to cause the refinance or discharge of the mortgage registered on Title against the property situated at and known as A Street, Suburb B in the State of New South Wales (“the A Street, Suburb B property”) at the Applicant Wife’s cost, such that the Respondent Husband shall sign all documents presented to him by the Applicant Wife and the Applicant Wife shall do all things necessary to cause such discharge and upon such refinance into the sole name of the Applicant Wife, she will indemnify and keep indemnified the Respondent Husband in relation to any or all liabilities arising from the following date after that.
That in the event that the Applicant Wife fails to pay the Respondent Husband pursuant to Order 1 above, then within seven (7) days from the expiry of Order 1, the Applicant Wife shall do all acts and things and sign all instruments and documents necessary to list the property situated at and known as A Street, Suburb B in the State of New South Wales being the whole of land contained in Lot ... in Deposited Plan ... (“the former matrimonial home”) for sale by private treaty at a listing price as nominated by the Applicant Wife, with a Real Estate Agent nominated by the Applicant Wife and shall proceed to a sale of the property at a sale price nominated by the Applicant Wife and following such sale the proceeds of sale shall be applied as follows:
(a)In adjustment of rates upon settlement;
(b)In payment of agents commission (if any) upon sale;
(c)In payment of all legal and other…

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 Palen and Palen

Details

AGLC: Palen and Palen [2020] FCCA 1228
Case: [2020] FCCA 1228
Decision Date: 22 May 2020

CaseChat Overview and Summary

This matter concerned property and parenting orders made by Judge Newbrun. The dispute involved the division of assets and liabilities between the Applicant Wife and the Respondent Husband, as well as arrangements for their child.

The court was required to determine the legal and equitable ownership of various assets and liabilities, including the former matrimonial home, personal property, financial assets, and superannuation interests. Additionally, the court needed to establish parenting arrangements for the child, specifically concerning residence, parental responsibility, and the child's ability to travel internationally.

The court made detailed orders regarding the property settlement, including a payment from the Applicant Wife to the Respondent Husband, the refinancing or discharge of a mortgage on the former matrimonial home, and provisions for the sale of the property if the refinancing did not occur. The orders also addressed the division of net sale proceeds, the allocation of personal property and liabilities, and a splittable payment from the Respondent Husband's superannuation interest to the Applicant Wife. In relation to parenting, the court ordered that the child live with the Mother, who was granted sole parental responsibility, including the authority to apply for a passport and permit international travel for the child.

Orders

Orders of the court

Property Aspect

That within 120 days from the date of these Orders, the Applicant Wife shall pay the Respondent Husband in the amount of $93,618.

That within 28 days of being served with a copy of these Orders by email, the Respondent Husband shall vacate the A Street, Suburb B property and shall be permitted to retain his personal effects. In the event that Respondent Husband fails to vacate the A Street, Suburb B property after the expiry of this Order, then the Applicant Wife shall be permitted to change the locks of such property and obtain sole occupation of same.

That simultaneous with Order 1 above, the parties shall do all acts and things so as to cause the refinance or discharge of the mortgage registered on Title against the property situated at and known as A Street, Suburb B in the State of New South Wales (“the A Street, Suburb B property”) at the Applicant Wife’s cost, such that the Respondent Husband shall sign all documents presented to him by the Applicant Wife and the Applicant Wife shall do all things necessary to cause such discharge and upon such refinance into the sole name of the Applicant Wife, she will indemnify and keep indemnified the Respondent Husband in relation to any or all liabilities arising from the following date after that.

That in the event that the Applicant Wife fails to pay the Respondent Husband pursuant to Order 1 above, then within seven (7) days from the expiry of Order 1, the Applicant Wife shall do all acts and things and sign all instruments and documents necessary to list the property situated at and known as A Street, Suburb B in the State of New South Wales being the whole of land contained in Lot ... in Deposited Plan ... (“the former matrimonial home”) for sale by private treaty at a listing price as nominated by the Applicant Wife, with a Real Estate Agent nominated by the Applicant Wife and shall proceed to a sale of the property at a sale price nominated by the Applicant Wife and following such sale the proceeds of sale shall be applied as follows:

(a) In adjustment of rates upon settlement;

(b) In payment of agents commission (if any) upon sale;

(d) In payment of sum sufficient to discharge the registered mortgage over the property;

(e) The balance to be divided as follows:

(i) In payment to the Applicant Wife of 65% of the nett sale proceeds to be paid into the Trust Account of Bell Lawyers; and

(ii) In payment to the Respondent Husband 35% of the nett sale proceeds.

That for the purpose of Order 4 above and prior to the implementation of such Order, the parties shall agree for the Applicant Wife to attend the former matrimonial home on mutually agreed dates for the purpose of attending to maintenance of the property in preparation for listing the former matrimonial home for sale and any costs associated with such maintenance shall be beared equally between the parties.

That if a sale is not achieved within three (3) months of the property being placed on the market for sale by way of private treaty, then the parties do all acts and things and sign all documents necessary so as to effect a sale of the former matrimonial home in the following manner and priority:

(a) List the former matrimonial home for sale by public auction with such agent as the parties may agree to appoint and in default of such agreement with such agent as nominated by the Real Estate Institute of New South Wales or his or her nominee, the costs of such appointment to be borne equally by the parties as and when they fall due;

(b) The reserve price at which the former matrimonial home shall be listed shall be as mutually agreed between the parties, or in the absence of agreement, shall be the price nominated by a valuer by the Real Estate Institute of New South Wales or his or her nominee, the costs of such appointment to be borne equally by the parties as and when they fall due;

(i) In payment of sum sufficient to discharge the registered mortgage over the property;

(ii) Payment of agents commission and advertising expenses and legal expenses of the sale;

(iii) Payment of costs incurred, if any, in relation to determination of value or selling price by the Real Estate Institute of New South Wales or his or her nominee;

(iv) Payment of any costs associated with the said sale;

(v) The balance to be divided as follows:

1. In payment to the Applicant Wife of 65% of the nett sale proceeds to be paid into the Trust Account of Bell Lawyers;

2. In payment to the Respondent Husband of 35% of the nett sale proceeds.

In the event that the former matrimonial home is not sold:

(a) By private treaty pursuant to Order 4 or;

(b) Within seven (7) days of the auction referred to in Order 6 or by negotiation of the highest bidder at such auction;

(c) Then the Applicant Wife shall do all acts and things and sign all necessary documents to cause a further auction of the former matrimonial home to be held within a further 3 months after the date of the first auction without a reserve price.

That in the event that the parties are unable to reach agreement for more than seven (7) days, in relation to an agent or auctioneer, whether a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of NSW or his or her nominee acting as an expert not as an Arbitrator to nominate and/or appoint such agent or auctioneer and the parties shall thereafter act in accordance with that nomination and appointment and the parties shall be equally responsible for the costs and expenses of the President of his nominee making such determination.

That in the event that the parties are unable to reach agreement for more than seven (7) days in relation to listing price, reserve price or selling price whether by public auction or private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of NSW or his/her nominee acting as an expert not as an arbitrator to make such determination and the parties shall be equally responsible for the costs and expenses of the President or his nominee making such determination.

10.

That pursuant to section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Respondent Husband Mr Palen in the Super Fund C, Member Number ...:

(a) The Applicant Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $55,926 (provided such amount shall not exceed the value of the interest determined under Section 90MT(2); and

(b) There be a corresponding reduction in the superannuation interest of the Respondent Husband to whom the splittable payment would have been made but these Orders.

11.

That each party and the Trustee has liberty to apply on not less than three (3) business days notice, in respect to the implementation of the super splitting orders.

12.

The operative time for the purposes of Order 10 shall be calculated from four (4) business days after the date that a sealed copy of these Orders is served upon the Trustee of the Fund.

13.

That having been accorded procedural fairness, these Orders bind the Trustee of the Fund to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001.

14.

That the Applicant Wife is declared the sole owner in law and in equity as between herself and the Respondent Husband of all items of personal property including but not limited to property situated at A Street, Suburb B NSW, financial assets and financial resources currently in her power, possession or control other than as specifically dealt with elsewhere in these Orders, including any bank or credit union accounts, entitlement in shares and any superannuation entitlements held in her name.

15.

That the Respondent Husband is declared the sole owner in law and in equity as between himself and the Applicant Wife of all items of personal property, financial assets and financial resources currently in his power, possession or control other than as specifically dealt with in these Orders, including any bank or credit union accounts, entitlement in shares and any superannuation entitlements held in his name.

16.

That the Applicant Wife is declared solely responsible for all liabilities in her sole name and the Applicant Wife shall indemnify and forever keep the Respondent Husband indemnified with respect to any and all of the Applicant Wife’s personal liabilities.

17.

That the Respondent Husband is declared solely responsible for all liabilities in his sole name and the Respondent Husband shall indemnify and forever keep the Applicant Wife indemnified with respect to any and all of the Respondent Husband’s personal liabilities.

18.

If the Respondent Husband does not do all acts and things and sign all documents necessary to discharge the mortgage and vacate the former matrimonial home in accordance with Orders 2 – 9 inclusive, then the Applicant Wife is to sign all documents necessary with respect to such discharge of mortgage without the need or consent of the Respondent Husband, or is to cause the former matrimonial home to be listed for sale by private treaty or by way of public auction and is to appoint a selling agent or auctioneer at her discretion and shall be permitted to change the locks of the former matrimonial home after the expiry of Order 2 above, noting the Applicant Wife is to have sole right of appointments and sole right to sign all such documents and do all such things in connection with the appointment.

19.

If the Applicant Wife obtains the sole right of appointment as per Order 18 above, then the Respondent Husband is not to:

(a) Interfere with the discharge of mortgage registered against the former matrimonial home;

(b) Interfere with the sale of the former matrimonial home in any way;

20.

That within 14 days the parties shall do all things and acts and give all consents and authorities necessary so as to sever the joint account Bank D BSB ... 9 Account No. ... 30 and the Applicant Wife shall transfer her rights and interests in such bank account into the sole name of the Respondent Husband.

21.

That in the event that either party refuses or neglects to comply with any of these Orders in relation to the execution of any deed, instrument or document, the Court appoints and authorises pursuant to section 106A of the Family Law Act the Registrar of the Federal Circuit Court of Australia to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints that Registrar to do all acts and things necessary to give validity and operation to the deed, instrument or document.

PARENTING ASPECT

22.

That the child X born in 2005 (hereinafter referred to as “the child”) shall live with the Mother.

23.

That the Mother shall have Sole Parental Responsibility for the child.

24.

That the child shall spend time with the Father in accordance with his wishes.

25.

That the Mother shall have Sole Parental Responsibility to apply for a passport for the child X born in 2005.

26.

That the child shall be permitted to travel internationally, without the need for the consent of the Father to be provided.

27.

That the Mother shall be the only person with parental responsibility of the child for the purposes of applying for, and being issued with, an Australian passport for the child.

28.

That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

NOTATION:

A. Pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001, the Court or a Registrar may set aside or vary an Order if it was made in the absence of a party. Any application by the husband pursuant to Rule 16.05 to vary or set aside the above final property adjustment Orders shall be made within 7 days of being notified of such Orders.

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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