RADNER & BIGNALL - [2021] FCCA 352

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADNER & BIGNALL [2021] FCCA 352

Catchwords:
FAMILY LAW – Property dispute – short de facto relationship – no children –
each party has property at the commencement and debts – husband overstates the value of his assets at commencement - husband’s alleged debts to family members - issues of justice and equity to be considered before property alteration order made – no property alteration order.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(2), 79(4), 90SM(1)(a), 90SM(3), 90SM(4)

Cases cited:

Bevan & Bevan FLC 93-545; [2013] FamCAFC 116

C v C (2005) FLC 93-220; [2005] FamCA 429

Chancellor & McCoy [2016] FamCACF 256

Ferraro and Ferraro (1993) FLC 92-335

Hickey and Hickey (2003) FLC 93-143; [2003] FamCA 395

Stanford v Stanford [2012] HCA 52

Applicant: MR RADNER

Respondent: MR BIGNALL

File Number: CSC 142 of 2018

Judgment of: Judge Willis AM

Hearing date: 7 October 2020

Date of Last Submission: 7 October 2020

Delivered at: Cairns

Delivered on: 25 February 2021
REPRESENTATION

Counsel for the Applicant: Mr Baston

Solicitors for the Applicant: Cope Family Law

Counsel for the Respondent: Mr Eylander

Solicitors for the Respondent: Murray & Lyons Solicitors
ORDERS
(1)That the further amended Response filed by the Respondent de facto husband, MR BIGNALL on 3 April 2020 (and all previous Responses) to alter the existing interests (both legal and equitable) of the parties to a de facto relationship is dismissed.
(2)That the proceeds of sale of B Street, Suburb C currently held on trust be distributed solely to the Applicant de facto wife, MS RADNER.
(3)If parties wish to make a costs application then the appropriate application is to be filed within 28 days.

IT IS NOTED that publication of this judgment under the pseudonym Radner & Bignall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS
CSC 142 of 2018

MS RADNER
Applicant
And

MR BIGNALL
Respondent
1.The applicant in the matter is Ms Radner the de facto wife who I shall refer to as “the wife”. She is aged 45 at the time of hearing.
2.The respondent is Mr Bignall, the de facto husband, who I shall refer to as the husband. He is aged 42 at the time of hearing.
3.The husband says they commenced a relationship in 2013 and the wife says they first met in 2013 and commenced a de facto relationship in March 2014. On any version of events these parties were in a very short and childless de facto relationship for a period of three years or three years and seven months, depending on whose version of the dates is accepted. The period of seven months’ difference has no particular relevance to the overall position of the parties.
4.The parties separated on 15 March 2017 (“separation date”).
5.Their de facto relationship occurred in Queensland. I am satisfied that the geographical requirements have been satisfied. The wife relocated to Victoria on 29 May 2017, a couple of…

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 RADNER & BIGNALL

Details

AGLC: RADNER & BIGNALL [2021] FCCA 352
Case: [2021] FCCA 352
Decision Date: 25 February 2021

CaseChat Overview and Summary

In the matter of *Radner & Bignall*, heard before Judge Willis AM, the dispute concerned a property settlement between a de facto couple, Ms Radner (the applicant) and Mr Bignall (the respondent). The relationship was of short duration, and there were no children. Both parties possessed property and incurred debts at the commencement of the de facto relationship. A central element of the dispute involved Mr Bignall's alleged overstatement of his asset values at the commencement of the relationship and his claims regarding debts owed to family members.

The court was required to determine whether to make an order altering the existing interests of the parties in their property. This determination involved considering the principles of justice and equity in the context of a short de facto relationship where both parties brought assets and liabilities to the union. The court also had to assess the credibility of Mr Bignall's claims regarding his financial position and alleged debts.

Judge Willis AM ultimately dismissed the respondent's application to alter the existing interests in the property. The court reasoned that, in light of the circumstances, including the short duration of the relationship and the findings regarding the respondent's financial representations, it was not just and equitable to make an order altering the parties' property interests. Consequently, the court ordered that the proceeds of sale of a property located at B Street, Suburb C, which were held on trust, were to be distributed solely to the applicant, Ms Radner. The parties were also given a period of 28 days to file any application concerning costs.

Orders

Orders of the court

(1) That the further amended Response filed by the Respondent de facto husband, MR BIGNALL on 3 April 2020 (and all previous Responses) to alter the existing interests (both legal and equitable) of the parties to a de facto relationship is dismissed.

(2) That the proceeds of sale of B Street, Suburb C currently held on trust be distributed solely to the Applicant de facto wife, MS RADNER.

(3) If parties wish to make a costs application then the appropriate application is to be filed within 28 days.

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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