Peters & Walker - [2015] FamCA 732

FAMILY COURT OF AUSTRALIA

PETERS & WALKER

[2015] FamCA 732

FAMILY LAW – PROPERTY SETTLEMENT – DE FACTO RELATIONSHIP – where parties agree there was a de facto relationship for the purpose of Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’) – where the parties sought a property settlement pursuant to s 90SM of the Act – where the de facto wife made significant initial financial contributions – where the parties bought and sold four properties during a 25 year relationship – an allegation by the de facto wife as to non-payment of tax by the de facto husband – allegation by de facto wife of waste by the de facto husband – where the de facto wife sought adjustment in relation to monies allegedly spent by the de facto husband himself pursuant to s 90SF of the Act – orders made that property pool be distributed in the proportion of 60 per cent in favour of the applicant de facto wife and 40 per cent in favour of the respondent de facto husband.

Family Law Act 1975 (Cth)

Bevan v Bevan (2013) FLC 93-545
Chapman v Chapman (2014) FamCAFC 91

APPLICANT:

Ms Peters

RESPONDENT:

Mr Walker

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

HBC

421

2014

DATE DELIVERED:

21 May 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

21 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Trezise

SOLICITOR FOR THE APPLICANT:

M+K Dobson Mitchell & Allport

COUNSEL FOR THE RESPONDENT:

Ms Foale

SOLICITOR FOR THE RESPONDENT:

Simmons Wolfhagen

Orders

Within sixty (60) days of the date of this order Mr Walker (‘the respondent’) sign all documents and authorities to transfer his right, title and interest in the property at B Street, Suburb C (‘the B property’) to Ms Peters (‘the applicant’) subject to:-
(a)the applicant discharging (at her own expense) the mortgage over the B property to the Australia and New Zealand Banking Group Limited or securing from that Bank a release for the respondent of his personal covenants in respect of the mortgage and loan;
(b)payment by the applicant to the respondent of the sum of $39,323.
Within sixty (60) days of the date of this order in the event that the applicant is unable to secure finance to enable the transfer of the B property in order 1 herein the parties shall do all acts and things and sign all documents necessary to effect a sale of the B property subject to:-
a.the method of sale, whether by auction or private treaty, shall be as agreed between the parties; in the absence of agreement within thirty (30) days or if any agreement for method of sale breaks down, then by auction at the request of either party.
b.the parties shall instruct a legal practitioner (agreed by them) to act on the sale of the B property; failing agreement a licenced legal practitioner shall be nominated by the President of the Law Society of Tasmania, at the request…

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 Peters & Walker

Details

AGLC: Peters & Walker [2015] FamCA 732
Case: [2015] FamCA 732
Decision Date: 21 May 2015

CaseChat Overview and Summary

This case involved a property settlement dispute between a de facto wife, Ms Peters (the applicant), and a de facto husband, Mr Walker (the respondent), following a 25-year relationship. The parties agreed that a de facto relationship existed for the purposes of Part VIIIAB of the *Family Law Act 1975* (Cth) and sought a property settlement under s 90SM of the Act. The de facto wife alleged significant initial financial contributions, and raised issues concerning alleged tax non-payment and waste by the de facto husband, seeking an adjustment under s 90SF of the Act in relation to monies allegedly spent by the respondent.

The court was required to determine the appropriate division of the parties' property pool. This involved considering the de facto wife's initial financial contributions, the parties' dealings with four properties during their relationship, and allegations of financial misconduct by the de facto husband. The court also had to make orders for the transfer, sale, and division of various assets, including real estate, vehicles, bank accounts, and personal effects.

Benjamin J ordered that the property pool be distributed in the proportion of 60 per cent in favour of the applicant de facto wife and 40 per cent in favour of the respondent de facto husband. The orders detailed the specific arrangements for the transfer or sale of the parties' property at B Street, Suburb C, including the discharge of mortgages, payment of sale expenses, and the division of net proceeds to achieve the 60/40 split. The respondent was to receive the proceeds from the sale of the D Town property, with capital gains tax to be shared equally. Various other assets, including a joint bank account, shed contents, and personal chattels, were to be divided or allocated between the parties. Each party was to be solely liable for liabilities and debts associated with property or assets they received under the orders.

Orders

Orders of the court

Within sixty (60) days of the date of this order Mr Walker (‘the respondent’) sign all documents and authorities to transfer his right, title and interest in the property at B Street, Suburb C (‘the B property’) to Ms Peters (‘the applicant’) subject to:-

(a) the applicant discharging (at her own expense) the mortgage over the B property to the Australia and New Zealand Banking Group Limited or securing from that Bank a release for the respondent of his personal covenants in respect of the mortgage and loan;

(b) payment by the applicant to the respondent of the sum of $39,323.

Within sixty (60) days of the date of this order in the event that the applicant is unable to secure finance to enable the transfer of the B property in order 1 herein the parties shall do all acts and things and sign all documents necessary to effect a sale of the B property subject to:-

a. the method of sale, whether by auction or private treaty, shall be as agreed between the parties; in the absence of agreement within thirty (30) days or if any agreement for method of sale breaks down, then by auction at the request of either party.

b. the parties shall instruct a legal practitioner (agreed by them) to act on the sale of the B property; failing agreement a licenced legal practitioner shall be nominated by the President of the Law Society of Tasmania, at the request of either party.

c. the B property shall be listed for sale with a licenced real estate agent and auctioneer, agreed between the parties; failing agreement the licenced real estate agent and auctioneer will be the person nominated by the President of the Real Estate Institute of Tasmania at the request of either party.

d. the listing price, reserve price for auction and sale selling price of the B property shall each be as agreed by the parties; failing such agreements, such price, reserve or sale price shall be as determined by a valuer nominated by the President of the Tasmanian Division of the Australian Property Institute at the request of either party.

e. from the date of this Order until the completion of the settlement of the sale of B property, the applicant shall pay all outgoings on the property; including but not necessarily limited to the payment of council rates, water rates, mortgage payments and interest on the mortgage.

f. at settlement of the sale of B property the proceeds of sale shall be applied as follows:-

i. payment of legal costs and disbursements of the legal practitioner acting for the parties on the sale;

ii. payment of the real estate agent’s commissions, fees and reasonable advertising and auction expenses;

iii. any fees or charges paid or payable to the Law Society, the Real Estate Institute and/or the Australian Property Institute in implementing the orders for the sale;

iv. in re-payment of any mortgage secured over the B property;

v. in payment of the net balance of the proceeds of sale be divided between the parties so as to result in a division of the net assets 60 per cent to the Applicant and 40 per cent to the Respondent, as per the schedule of assets set out in the reasons upon which these orders are based (attached).

The applicant shall pay all amounts of principal and interest on the Australia and New Zealand Banking Group mortgage and loan over the B property together with all rates, taxes insurance and the like on that property as and from the date of this order.

The parties shall sign all documents and papers to cause the distribution of the net proceeds of sale of the parties’ property at D Town (totalling about $87,980) to the respondent.

Each of the parties, respectively, shall be liable for and shall pay any capital gains tax on one half of the net taxable capital gain in respect of the sale of the D Town property.

The parties shall do all acts and sign all documents to close the Australia and New Zealand Banking Group Limited joint account (final four numbers of such account being 3553) with a balance of approximately $1,067 with such amount to be divided equally between the parties.

The parties or their nominated agents shall do all acts and sign all documents to cause the ‘shed contents’ (including; timber, frames, firescreens and pictures), now or formally at the shed, to be divided equally as between the applicant and the respondent. If the parties or their nominated agents are unable or unwilling to agree on the division of the items in the shed then the respondent shall make a list of all of the items now or formerly in the shed and each shall pick alternate items with the applicant to have the first pick.

As and between the respondent and the applicant, the respondent shall be declared the owner of the property set out in this order and the applicant shall within thirty (30) days from the date of this order reasonably make available for collection by the respondent or his nominated agent the following property:-

(a) a large photo on canvas of the respondent’s granddaughter;

(b) the stainless steel Weber Barbeque;

(d) the print in a gold coloured frame;

As and between the respondent and applicant, the respondent shall be declared the owner of the following property which, if still in existence, shall be made available to the respondent or his nominated agent as soon as it practicable:-

(a) the monocular and tripod;

(b) the Russian flag;

(d) the respondent’s watch;

(e) the timber strip for the bench seat from under the house; and

(f) the Stereo set that was removed from D Town.

10.

Within thirty (30) days from the date hereof the applicant shall make reasonable arrangements for the respondent or his nominated agent to collect the leadlight mirror on the lounge room wall in the B property and the respondent will make good any damage to the wall including filling any hole, and appropriate painting of that wall.

11.

Subject to these Orders; as between the respondent and the applicant it is declared that the following property is the applicant’s property:-

a. the furniture and contents in the B property;

b. the Japanese motor vehicle;

c. the applicant’s Peters Superannuation entitlement;

d. the applicant’s savings and investments held in any bank accounts in her name, and

e. the applicant’s chattels and personal effects in her possession and/or control.

12.

Subject to these Orders; as between the respondent and the applicant it is declared that the following is the respondent’s property:-

a. the Van, 4WD and Korean motor vehicles;

b. the Boat;

c. the kayak and surfboards; and

d. the respondent’s interest in any of the bank accounts in his name.

13.

Unless otherwise specified in this order and as against each other:-

(a) each party will be solely liable for and indemnify the other party against any liability affecting and/or encumbering any property to which that party is entitled pursuant to that order;

(b) each party will remain solely liable for their respective debts;

14.

Each party shall sign all such documents and do all things necessary to give effect to the implementation of these orders.

15.

All other extant applications for orders, except costs applications, be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

16.

All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

17.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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