PHIPSON & PAICE - [2021] FamCA 382

FAMILY COURT OF AUSTRALIA

PHIPSON & PAICE

[2021] FamCA 382

FAMILY LAW – PROPERTY – Where it is just and equitable to make a property division order – Where the parties generally agree that an adjustment to their interests should be effected in a manner which favours the wife but dispute the magnitude of such adjustment and other matters relevant to the fairness of each of their respective proposals – Where the central matters in dispute between the parties relate to the inclusion of the wife’s business as an asset in her hands, whether the former matrimonial property should be treated as an asset wholly owned by the husband and whether sums previously received by the wife should be characterised as partial property settlement payments – Where there is also a dispute about the inclusion of a liability associated with repairing the former matrimonial property, and the value of certain other assets – Where in all of the circumstances, including financial and non-financial contributions made by the parties, the length of the marriage, the size of the pool of assets for distribution and s 75(2) factors, the Court is satisfied that orders that would give effect to the wife receiving a 70 per cent entitlement of the parties’ net assets and the husband receiving 30 per cent are just and equitable – Orders made as sought by the wife with the appropriate adjustments.

Family Law Act 1975 (Cth) ss 75, 79, 90AE

Bevan & Bevan [2013] FamCAFC 116
Pierce & Pierce [1998] FamCA 74
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1993) FLC 92-338
Williams & Williams [2007] FamCA 313

APPLICANT:

Ms Paice

RESPONDENT:

Mr Phipson

FILE NUMBER:

PAC

2724

2016

DATE DELIVERED:

9 June 2021

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

7 – 9 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bennet

SOLICITOR FOR THE APPLICANT:

Coleman & Greig Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Self Represented

Orders

Within 42 days of the date of these Orders, the Husband pay to the Wife the sum of $170,995 via the Coleman Greig Lawyers Pty Ltd Law Practice Trust Account BSB: … A/C: ….
Within 21 days of any non-compliance with Order (1) above, the Husband do all acts and things and sign all documents necessary to place on the market for sale by auction the property situated at and known as C Street, Suburb D in the state of New South Wales (Folio Identifier …) ("the Suburb D Property") as follows:
(a)Instruct B Conveyancing in Suburb E, or a solicitor/conveyancer agreed between the parties in writing, to have conduct of the sale:
(b)Instruct F Real Estate in Suburb G, or a real estate agent agreed between the parties in writing, to act as real estate agent for the sale of the Suburb D property;
(c)Instruct Mr H, to conduct the auction of the Suburb D property unless otherwise agreed between the parties in writing;
(d)The reserve…

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: PHIPSON & PAICE [2021] FamCA 382
Case: [2021] FamCA 382
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered the property dispute between Ms Paice (the wife) and Mr Phipson (the husband) following the breakdown of their four-year marriage. While the parties had reached an agreement regarding parenting arrangements for their child, they remained in dispute over the division of their assets. The wife sought an adjustment favouring her, proposing to retain 75% of the net assets, while the husband proposed a 60/40 split in her favour.

The central legal issues before the court were the inclusion of the wife's business as an asset, whether the former matrimonial property should be treated as wholly owned by the husband, and how to characterise sums previously paid to the wife. Additionally, the court had to determine disputes concerning a liability for repairs to the former matrimonial property and the valuation of other assets. The court was required to consider the financial and non-financial contributions of each party, the length of the marriage, the size of the asset pool, and the factors outlined in section 75(2) of the *Family Law Act 1975* (Cth) to determine what orders would be just and equitable.

The court reasoned that a property adjustment favouring the wife was warranted, taking into account all relevant circumstances. It found that an entitlement of 70% of the net assets for the wife and 30% for the husband was just and equitable. This determination was informed by the parties' respective contributions, the duration of their marriage, and the overall financial position. The court ultimately made orders reflecting the wife's proposed distribution, with appropriate adjustments to achieve the 70/30 split.

The court ordered the husband to pay the wife a sum of $170,995 within 42 days. Further orders detailed the process for the sale of the former matrimonial property located at C Street, Suburb D, New South Wales, should the husband fail to comply with the initial payment. These orders included provisions for the appointment of agents and conveyancers, the setting of a reserve price, and the husband's obligation to accept offers within a specified range. The wife was appointed as trustee for the sale of the property in certain circumstances, with the proceeds to be applied in a specific priority. The court also clarified the sole ownership of various assets and liabilities for each party, with the husband indemnifying the wife for his liabilities and vice versa.

Orders