FEDERAL CIRCUIT COURT OF AUSTRALIA
Ritchie & Debeney [2021] FCCA 1173
File number(s): MLC 2522 of 2018 Judgment of: JUDGE HARLAND Date of judgment: 31 May 2021 Catchwords: FAMILY LAW – property – 6 year de facto relationship – assessment of initial contributions – assessment of s90SF(3) factors – respondent injured post-separation Legislation: Family Law Act 1975 (Cth) Cases cited: Brandow & Brandow [2010] FMCAfam 1026
Crawford & Ruskin [2013] FamCA 493
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Pierce v Pierce (1998) FLC 92-844
Stanford & Stanford (2012) 247 CLR 108
Williams&Williams [2007] FamCA 313
Number of paragraphs: 101 Date of last submission/s: 7 April 2021 Date of hearing: 16 October 2020, 2 November 2020, 12 February 2021 Place: Melbourne Counsel for the Applicant: Mr Fuller Solicitor for the Applicant: Glenister Steinfort & Co Counsel for the Respondent: Mr Duckett Solicitor for the Respondent: RF Legal ORDERS
MLC 2522 of 2018 BETWEEN: MS RITCHIE
Applicant
AND: MR DEBENEY
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1.Within 60 days (‘the Date’), the Respondent cause to be paid to the Applicant the sum of $276,035 plus $467.50 (being half of the cost of the Armstrong Biggs invoice) (‘the Payment’).
2.In default of the Payment by the Date, the parties shall forthwith take all necessary steps and execute all necessary documents to cause the real property known as B Street, Suburb C, Victoria being all of the land contained in Certificate of Title Volume ... Folio ... (‘the Property’) to be placed on the market for sale and sold by auction (‘the sale’).
3.At settlement of the sale, the proceeds of the said sale be disbursed as follows:
(a)Payment of the agent’s commission and advertising and legal expenses of the sale;
(b)Payment of the money due and owing to the mortgagee;
(c)To reimburse any agreed fees paid for the sale by either party;
(d)Such that the Applicant receives 45%; and
(e)The Respondent receives 55%.
4.For the purposes of the sale:
(a)The reserve price as agreed between the parties and in default of agreement by a further 14 days from the Date as recommended by the selling agent;
(b)The auction shall occur as soon as practicable;
(c)The conveyancer shall be as agreed between the parties and in default of agreement by a further 14 days from the Date, the Applicant shall forthwith propose three (3) independent conveyancers or solicitors to act in the sale of the Property and the Respondent shall choose one (1) from that list within 3 days of receipt of same. In default of the Respondent’s obligation to select one, the Applicant be at liberty to select a nominee from the list;
(d)Notwithstanding the registered ownership, the sale of the Property shall be conducted by the parties jointly and for the purposes of same, the parties are at liberty to produce a copy of these orders to the selling agent and conveyancer.
5.Pending settlement of the sale…
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- Ritchie & Debeney [2021] FCCA 1173
- Case
- [2021] FCCA 1173
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate distribution of the equity in the matrimonial home, considering the contributions of both parties throughout the relationship and post-separation. This involved assessing the financial and non-financial contributions made by each party, as well as considering factors relevant to section 90SF of the *Family Law Act 1975* (Cth), including the parties' respective ages, future earning capacities, and health circumstances. The court also had to address the respondent's opposition to the sale of the property and the applicant's concerns regarding mortgage arrears and her credit rating.
Harland J found the respondent to be an unreliable witness, noting inconsistencies and exaggerations in his evidence, particularly concerning his attachment to the home. The court rejected the respondent's submission that his contributions should be assessed at 95%, finding that the applicant had made significant contributions during the relationship. Applying the principles from *Williams & Williams* [2007] FamCA 313, the court considered the value of assets at the time of realisation or hearing, alongside other contributions. The court determined that the equity in the property should be adjusted, with 45% allocated to the applicant and 55% to the respondent, reflecting an assessment of the applicant's contributions at 25% and a further 20% under section 90SF(3).
The court ordered that the respondent pay the applicant a sum of $276,035 plus half the cost of a specific invoice within 60 days. In default of this payment, the property was to be placed on the market for sale by auction. The proceeds of sale were to be disbursed in a specified order, with the applicant receiving 45% and the respondent 55% of the net proceeds after sale costs, mortgage payments, and agreed fees. The respondent was granted sole occupation of the property pending settlement, with obligations to pay all mortgage repayments, rates, taxes, and outgoings, and to indemnify the applicant in relation to these expenses. The parties were restrained from further encumbering the property. Each party was to bear their own costs.
Orders
Orders of the court
MLC 2522 of 2018
BETWEEN:
MS RITCHIE
Applicant
AND:
MR DEBENEY
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1. Within 60 days (‘the Date’), the Respondent cause to be paid to the Applicant the sum of $276,035 plus $467.50 (being half of the cost of the Armstrong Biggs invoice) (‘the Payment’).
2. In default of the Payment by the Date, the parties shall forthwith take all necessary steps and execute all necessary documents to cause the real property known as B Street, Suburb C, Victoria being all of the land contained in Certificate of Title Volume ... Folio ... (‘the Property’) to be placed on the market for sale and sold by auction (‘the sale’).
3. At settlement of the sale, the proceeds of the said sale be disbursed as follows:
(a) Payment of the agent’s commission and advertising and legal expenses of the sale;
(b) Payment of the money due and owing to the mortgagee;
(c) To reimburse any agreed fees paid for the sale by either party;
(d) Such that the Applicant receives 45%; and
(e) The Respondent receives 55%.
4. For the purposes of the sale:
(a) The reserve price as agreed between the parties and in default of agreement by a further 14 days from the Date as recommended by the selling agent;
(b) The auction shall occur as soon as practicable;
(c) The conveyancer shall be as agreed between the parties and in default of agreement by a further 14 days from the Date, the Applicant shall forthwith propose three (3) independent conveyancers or solicitors to act in the sale of the Property and the Respondent shall choose one (1) from that list within 3 days of receipt of same. In default of the Respondent’s obligation to select one, the Applicant be at liberty to select a nominee from the list;
(d) Notwithstanding the registered ownership, the sale of the Property shall be conducted by the parties jointly and for the purposes of same, the parties are at liberty to produce a copy of these orders to the selling agent and conveyancer.
5. Pending settlement of the sale of the Property:
(a) The Respondent shall have the sole right to occupy the Property;
(a) The Respondent shall pay all loan and mortgage repayments relating to the Property as and when they fall due and indemnifies the Applicant in relation to same;
(b) The parties are restrained by injunction from withdrawing from or drawing down on any loan encumbering the Property or otherwise further encumbering the Property;
(c) The Respondent shall pay all rates, taxes, outgoings and other expenses relating to the Property as and when they fall due and indemnifies the Applicant in relation to same; and
(d) The parties hold their respective interests in the Property upon trust.
6. The parties have liberty to apply in relation to the sale and disbursement of proceeds.
7. Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c) Insurance policies remain the sole property of the beneficiary named therein;
(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
8. In the event that either party fails to comply with Order 2 of these Orders, within seven (7) days of a written request to do so, the compliant party shall be at liberty to:
(a) Apply pursuant to Section 106A of the Family Law Act 1975 for a Registrar of the Federal Circuit Court of Australia at Melbourne sign all and any necessary documents on behalf of the non-complying party to facilitate the implementation of Order 2; and
(b) Nominate a solicitor practicing in the Suburb C area who is authorised to sign documents for PEXA transfers and such solicitor shall sign on behalf of the non-compliant party upon the written request from the compliant party’s solicitor to do so upon provision of a sealed copy of these Orders.
9. Each party pay their own costs with respect to the application in a case filed on 11 December 2020 and the response filed on 10 February 2021.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I reject the respondent’s evidence that seeks to create an impression of the applicant taking advantage and spending money wastefully to his detriment. I accept the applicant’s evidence that they both accessed the accounts and made withdrawals and that they had to make drawdowns on the mortgage because they could not otherwise meet their expenses at various times.POST SEPARATION After separation, the applicant moved out of the B Street, Suburb C home. The parties agreed that they would each pay half the mortgage. The bank account statements show the respondent ceasing to contribute to the mortgage in February 2017. He had to concede that the applicant is continuing to make payments for the mortgage in 2017 and 2018 when she was not living in the property. On 9 August 2018 the Court made interim orders requiring the respondent to pay for the mortgage and indemnify the applicant. In May 2019, the applicant was contacted by the bank and discovered that the respondent had fallen into arrears. In November 2019, the applicant sought interim orders for the sale of the property. The respondent appeared in person on that occasion and opposed the order. He was given the opportunity to provide evidence as to how he was going to discharge the arrears and refinance the loan. The applicant was reasonably concerned about the negative impact on her credit rating and that in fact had occurred. The applicant gave evidence that since October 2017 she has been paying home and contents insurance for the property. When it was put to the respondent in cross-examination he asked why she was doing that. The respondent said that he has never insured the property. It is reasonable for the applicant to insure the property when she is still liable for the mortgage in case something happens to the property. Indeed it is somewhat reckless of the respondent not to have insured the property, which he claims to be deeply attached to. It would be surprising if the terms of the mortgage did not require the property to be insured. SECTION 90SF FACTORS The applicant is 39 years old. The respondent is 58 years old. The respondent will be looking to retirement in the next 10 years or so. He is much closer to retirement age than the applicant. This is a relevant consideration. The applicant is studying for her degree. It is a three year degree which she is doing over 4 years. She is half way through. She wants to gain employment when she finishes her degree at the end of 2022. The applicant anticipates being able to work part time, 2 to 3 days a week as a result of her spinal injury suffered at work in 2016 and the ongoing medical care she requires to maintain her condition. The applicant’s health and compensation entitlements The respondent does not challenge the medical evidence the applicant relies on. Namely, the Affidavits of Dr X, Physician in rehabilitation medicine, filed on 11 June 2020, Dr Y, Urologist, filed on 11 November 2019, Ms Z, Colorectal Surgeon, filed on 5 November 2019 and Dr AA, Psychiatrist filed on 25 October 2019. It is not necessary to outline that medical evidence. It is a clear from the medical evidence and the evidence of the applicant that her medical issues substantially limit her ability to obtain employment and prohibit her from obtaining full-time employment. The controversy centred on whether or not the applicant would be entitled to make a common law claim, a lump sum claim and or a claim on her TPD superannuation policy. The respondent annexed documents from Super Fund BB, the applicant’s superannuation fund and the TPD policy.