RAYNES & GRIGSBY

Case [2019] FCCA 1815

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAYNES & GRIGSBY [2019] FCCA 1815
Catchwords:
FAMILY LAW – Property settlement – de facto relationship – overwhelming initial and financial contributions by one party – “Kennon” claim – s.90SF(3) factors.

Legislation:

Family Law Act 1975 (Cth), ss.90SM(1),(4), 90SF(3)

Cases cited:

Kennon & Kennon (1997) FLC 92-757
Stanford v Stanford (2012) 247 CLR 108
Bevan v Bevan (2013) FLC 93-545
Hickey v Hickey (2003) FLC 93-143
Russell v Russell (1999) FLC 92-877
Jabour & Jabour [2019] FamCAFC 78
Money & Money (1994) FLC 92-485 @ 81,054
Pierce v Pierce (1999) FLC 92-844
Dickons v Dickons (2012) 50 Fam LR 244
Singerson & Joans [2014] FamCAFC 238
Aaron & Jenkins [2016] FamCA 414
S & S [2003] FamCA 905
Keating & Keating [2019] FamCAFC 46
Amador & Amador (2009) 43 Fam LR 268
Clauson & Clauson (1995) FLC 92-595
Applicant: MS RAYNES
Respondent: MR GRIGSBY
File Number: LNC 626 of 2018
Judgment of: Judge McGuire
Hearing date: 19 June 2019
Date of Last Submission: 19 June 2019
Delivered at: Launceston
Delivered on: 3 July 2019

REPRESENTATION

Counsel for the Applicant: Ms K Mooney
Solicitors for the Applicant: Philip Welch
Counsel for the Respondent: Mr G Tucker
Solicitors for the Respondent: Grant Tucker

ORDERS

  1. That the assets of the parties’ be divided as to a net 82.5% to the applicant and a net 17.5% to the respondent and for these purposes:

    (a)The applicant retain to the exclusion of the respondent the following:

    (i)Property at Street K, Suburb L in Tasmania;

    (ii)Motor Vehicle A motor vehicle;

    (iii)Sale proceeds of tractor (held in trust);

    (iv)Furniture and contents in her possession and control;

    (v)Shed contents including tools;

    (vi)Quad bike and spray unit and trailer;

    (vii)1 shipping container;

    (viii)Aboriginal art piece;

    (ix)Business [B];

    (x)Monies in her bank; and

    (xi)Sale proceeds of kayak.

    (b)The respondent retain to the exclusion of the applicant the following:

    (i)Motor Vehicle C motor vehicle;

    (ii)Furniture and contents in his possession and control;

    (iii)Tools in the possession or control of the respondent;

    (iv)Caravan

    (v)Monies in CBA bank account;

    (vi)Monies in account at Business N; and

    (vii)Motorbike.

  2. That the applicant be solely responsible for and indemnify the respondent in respect of the following liabilities:

    (a)Amex card;

    (b)ANZ Visa card;

    (c)NAB Visa card;

    (d)Australian Taxation Office arrears (applicant);

    (e)2017/2018 Taxation liability (applicant);

    (f)Westpac Flexi loan (applicant);

    (g)Division 7A Loan Agreement to Business [B] (applicant);

    (h)Any and all liabilities attaching to any assets retained by the applicant pursuant to these Orders; and

    (i)Any and all liabilities incurred by the applicant since separation in either joint names or in her name alone.

  3. That the respondent be solely responsible for indemnify the applicant in respect of the following liabilities:

    (a)The Visa card debt (respondent);

    (b)Any and all liabilities attaching to any assets retained by the respondent pursuant to these Orders; and

    (c)Any and all liabilities incurred by the respondent since separation in either joint names or in his name alone.

  4. That within 60 days of the date of these Orders there…

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RAYNES & GRIGSBY [2019] FCCA 1815
Case
[2019] FCCA 1815
Decision Date

CaseChat Overview and Summary

In Raynes & Grigsby, Judge McGuire of the Family Court of Australia determined a property settlement dispute between parties who had been in a de facto relationship. The applicant had made overwhelming initial and financial contributions to the relationship.

The court was required to determine the appropriate division of the parties' assets and liabilities, considering the applicant's significant contributions and the factors outlined in s. 90SF(3) of the Family Law Act 1975 (Cth). A key issue was whether to apply the principles established in *Kennon v Kennon*, which allows for an adjustment in property division where one party's contributions have been overwhelmingly greater.

Judge McGuire reasoned that the applicant's substantial initial and financial contributions warranted a significant departure from an equal division of assets. The court applied the principles from *Kennon v Kennon* to account for these contributions, alongside the other factors relevant under s. 90SF(3).

The court ordered a net division of assets as to 82.5% to the applicant and 17.5% to the respondent. Specific assets were allocated to each party, and each party was made solely responsible for their respective liabilities incurred before and after separation, with the applicant indemnifying the respondent for certain joint liabilities. A cash adjustment of $53,129.27 was ordered from the applicant to the respondent. The applicant was to retain her superannuation entitlement with Super Fund D, and a splitting order was made for $79,972 from the respondent's share of the parties' self-managed superannuation fund in favour of the applicant.

Orders

Orders of the court

1.

That the assets of the parties’ be divided as to a net 82.5% to the applicant and a net 17.5% to the respondent and for these purposes:

(a) The applicant retain to the exclusion of the respondent the following:

(i) Property at Street K, Suburb L in Tasmania;

(ii) Motor Vehicle A motor vehicle;

(iii) Sale proceeds of tractor (held in trust);

(iv) Furniture and contents in her possession and control;

(v) Shed contents including tools;

(vi) Quad bike and spray unit and trailer;

(vii) 1 shipping container;

(viii) Aboriginal art piece;

(ix) Business [B];

(x) Monies in her bank; and

(xi) Sale proceeds of kayak.

(b) The respondent retain to the exclusion of the applicant the following:

(i) Motor Vehicle C motor vehicle;

(ii) Furniture and contents in his possession and control;

(iii) Tools in the possession or control of the respondent;

(iv) Caravan

(v) Monies in CBA bank account;

(vi) Monies in account at Business N; and

(vii) Motorbike.

2.

That the applicant be solely responsible for and indemnify the respondent in respect of the following liabilities:

(a) Amex card;

(b) ANZ Visa card;

(c) NAB Visa card;

(d) Australian Taxation Office arrears (applicant);

(e) 2017/2018 Taxation liability (applicant);

(f) Westpac Flexi loan (applicant);

(g) Division 7A Loan Agreement to Business [B] (applicant);

(h) Any and all liabilities attaching to any assets retained by the applicant pursuant to these Orders; and

(i) Any and all liabilities incurred by the applicant since separation in either joint names or in her name alone.

3.

That the respondent be solely responsible for indemnify the applicant in respect of the following liabilities:

(a) The Visa card debt (respondent);

(b) Any and all liabilities attaching to any assets retained by the respondent pursuant to these Orders; and

(c) Any and all liabilities incurred by the respondent since separation in either joint names or in his name alone.

4.

That within 60 days of the date of these Orders there be a cash adjustment by the applicant to the respondent in the sum of $53,129.27.

5.

That the applicant be solely entitled to and to the exclusion of the respondent her superannuation entitlement with Super Fund D.

6.

That there be a splitting Order in a base amount of $79,972 from the husband’s share of the corpus of the parties self-managed superannuation fund (SMSF) in favour of the applicant.

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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