FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rowlinson & Bradford (No 2) [2024] FedCFamC2F 1241
File number(s): NCC 4623 of 2020 Judgment of: JUDGE BETTS Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – De facto property settlement proceedings – ten-year relationship – two children – modest property – financial proceedings re-opened due to inheritance – who retains the family dog – hearing conducted on the papers – just and equitable outcome. Legislation: Family Law Act 1975 (“the Act”), Pt VIIIAB Cases cited: Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Rowlinson & Bradford [2023] FedCFamC2F 1484
Mallet & Mallet (1984) FLC 91-507
Stanford & Stanford (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 66 Date of last submission/s: 6 September 2024 Date of hearing: 27, 28 & 29 September 2022, 16 & 17 February 2023, 3 & 4 April 2023, 3 July 2023, 6 September 2024 Place: Newcastle Solicitors for the Applicant: Rossi Simicic Lawyers Counsel for the Respondent: Mr Mooney Solicitors for the Respondent: Access Family Law Pty Ltd ORDERS
NCC 4623 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROWLINSON
Applicant
AND: MS BRADFORD
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
PROPERTY SETTLEMENT:
1.That within 14 days of the date of the Orders, the parties do all acts and things and sign all necessary documents to affect a sale of Motor Vehicle 2 located at the former matrimonial home and upon the sale of Motor Vehicle 2 the parties shall cause the proceeds of sale to be divided equally between them.
2.That within forty-two (42) days from the date of these Orders (“the due date”) the Wife shall cause to be paid to the Husband the sum of $80,137 (“the settlement sum”).
3.That simultaneous with the Wife’s compliance with Order 2 above, the parties do all acts and things and sign all necessary documents to cause the following to occur:-
(a)the transfer to the Wife of the Husband’s right, title and interest in the property known as and situate at EE Street, Suburb Q (“the former matrimonial home”); and
(b)the discharge/refinance by the Wife of the mortgage secured over the former matrimonial home so as to discharge the Husband’s liability for the said mortgage.
4.That upon the Wife’s compliance with Orders 2 and 3 above, the Wife shall indemnify the Husband with respect to any and all liabilities and outgoings associated with the former matrimonial home however and whenever arising.
5.That in the event that the Wife is unable and/or unwilling to comply with Orders 2 and 3 above, then the Husband may elect to retain the former matrimonial home upon providing the Wife with not less than fourteen (14) days written notice of his intention to do so after the due date has expired as provided for in Order 2 above.
6.That in the event that the Husband makes…
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CaseChat Overview and Summary
The primary legal issues were the division of the parties' property and debts, and the allocation of personal items. The court had to consider the statutory criteria for property settlement under the Family Law Act, the contributions made by each party, and the future needs and circumstances of each party. The court also had to determine the fate of the family dog and other personal items.
Judge Betts considered the evidence and submissions from both parties. The court noted the substantial contributions made by each party to the relationship and the property acquired during the relationship. The court determined that a just and equitable outcome would be achieved by dividing the property and debts between the parties, with each party retaining certain personal items and assets. The court ordered that the former matrimonial home be sold, with the proceeds divided between the parties. The court also ordered that certain personal items and assets be retained by each party. The court did not make a specific order regarding the family dog, leaving it to the parties to agree on its custody.
The court made detailed orders regarding the division of property, payment of debts, and allocation of personal items. The court also made orders regarding the sale of the former matrimonial home and the division of the proceeds. The court ordered that the Wife pay certain outgoings for the former matrimonial home until it is sold and that each party remain liable for their own debts. The court also made orders regarding the repayment of a Centrelink debt.
Orders
Orders of the court
NCC 4623 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ROWLINSON
Applicant
AND:
MS BRADFORD
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
PROPERTY SETTLEMENT:
1. That within 14 days of the date of the Orders, the parties do all acts and things and sign all necessary documents to affect a sale of Motor Vehicle 2 located at the former matrimonial home and upon the sale of Motor Vehicle 2 the parties shall cause the proceeds of sale to be divided equally between them.
2. That within forty-two (42) days from the date of these Orders (“the due date”) the Wife shall cause to be paid to the Husband the sum of $80,137 (“the settlement sum”).
3. That simultaneous with the Wife’s compliance with Order 2 above, the parties do all acts and things and sign all necessary documents to cause the following to occur:-
(a) the transfer to the Wife of the Husband’s right, title and interest in the property known as and situate at EE Street, Suburb Q (“the former matrimonial home”); and
(b) the discharge/refinance by the Wife of the mortgage secured over the former matrimonial home so as to discharge the Husband’s liability for the said mortgage.
4. That upon the Wife’s compliance with Orders 2 and 3 above, the Wife shall indemnify the Husband with respect to any and all liabilities and outgoings associated with the former matrimonial home however and whenever arising.
5. That in the event that the Wife is unable and/or unwilling to comply with Orders 2 and 3 above, then the Husband may elect to retain the former matrimonial home upon providing the Wife with not less than fourteen (14) days written notice of his intention to do so after the due date has expired as provided for in Order 2 above.
6. That in the event that the Husband makes the election as provided for in Order 5 above, then within twenty-eight (28) days thereafter, the parties do all acts and things and sign all necessary documents to cause the following to occur:-
(a) the transfer to the Husband of the Wife’s right, title and interest in the former matrimonial home;
(b) the payment by the Husband to the Wife of the sum of $139,167 to be made to the Law Practice Trust Account of Access Family Law on behalf of the Wife; and
(c) the discharge/refinance by the Husband of the mortgage secured over the former matrimonial home so as to discharge the Wife’s liability for the said mortgage.
7. That upon the Husband’s compliance with Order 6 above, the Husband shall indemnify the Wife with respect to any and all liabilities and outgoings associated with the former matrimonial home however and whenever arising.
8. That simultaneous with the Husband’s compliance with Order 6 above, the Wife shall vacate the former matrimonial home leaving the home in a tidy and proper state of repair, free of damage.
9. That in the event that the Husband does not make the election as provided for in Order 5, then within fifteen (15) days of the date of the Wife’s non-compliance with Orders 2 and/or 3 above, the parties shall do all acts and things and sign all documents necessary to cause the sale of the former matrimonial home for the best price reasonably obtainable in the method recommended by the listing agent and for the purpose of this Order the following shall apply:-
(a) the Husband shall provide three real estate agents he proposes be appointed in relation to the sale of the former matrimonial home to the Wife and within a further seven (7) days the Wife shall select one of the real estate agents which agent the parties shall appoint within a further seven (7) days (“the agent”), however should the Wife fail or refuse to select an agent in the time provided, then the Husband shall select the agent;
(b) the Wife shall nominate three (3) lawyers or conveyancers she proposes be appointed in relation to the sale of the former matrimonial home and within a further seven (7) days the Husband shall select one of the lawyers which lawyer the parties shall appoint within a further seven (7) days (“the lawyer”), however should the Husband fail or refuse to select a lawyer in the time provided, then the Wife shall select the lawyer;
(c) in the event of an auction, the auctioneer shall be agreed upon between the parties and if there is no agreement then the auctioneer shall be as nominated by the agent;
(d) in the event of an auction, the first auction shall take place within six (6) weeks from the date of listing of the property (“first auction”);
(e) in the event the parties do not agree in relation to the reserve price for the first auction within fourteen (14) days of the date of Order, the reserve price shall be nominated by the agent;
(f) the parties shall cooperate in every way with the agent until the settlement of sale of the former matrimonial home, including, without limiting the generality of the foregoing:-
(i) making the key and any other devices required to access the property available to the agent and codes required to deactivate any security alarms to facilitate him/her entering the property;
(ii) allowing inspection of the former matrimonial home at all reasonable times requested by the agent;
(iii) not doing or saying nothing to hinder or prevent a sale being affected;
(g) the parties shall sign all documents requested by the agent and the lawyer in relation to the listing of the former matrimonial home, except any contract agreement for sale which has not been authorised by the lawyer, within seven (7) days of receipt of the document;
(h) in the event the bidding at an auction does not reach the reserve price the parties may negotiate with the highest bidder or any other interested person and effect a sale of the former matrimonial home at a price which is no more than five percent (5%) below the reserve price, or at such other price as the parties agree upon in writing.
(i) in the event the former matrimonial home is not sold by auction or by way of private treaty within fourteen (14) days after the first auction, then both parties shall do all acts and things, and sign all necessary documents and pay all monies necessary to procure a second auction within a further five (5) weeks of the first auction (“the second auction”) upon the same terms and conditions as applied to the first auction save that the reserve price shall be five percent (5%) less.
10. That on completion of the sale of the former matrimonial home pursuant to Order 9 above, the parties do all acts and things necessary to cause the proceeds of sale to be distributed as follows:-
(a) to pay all costs, commission and expenses of sale including but not limited to the auctioneers fees;
(b) to pay any adjustment for council and water rates and any outstanding strata fees;
(c) to pay the mortgage secured over the property;
(d) the payment of an amount to the Husband which results in him receiving a forty percent (40%) share of the net non-superannuation assets as provided for in the Reasons for judgment, plus an agreed adjustment of $4,776 in the Husband’s favour, plus interest calculated in accordance with the Federal Circuit & Family Court Rules 2021 NOTING THAT the ultimate figure payable to the Husband will depend upon the net sale proceeds of the home;
(e) the payment of the balance then remaining to the Wife to be made to the Law Practice Trust Account of Access Family Law on behalf of the Wife.
11. That pending the completion of sale of the former matrimonial home, the Wife shall pay all outgoings for the former matrimonial home as and when they fall due, and shall indemnify the Husband and keep him indemnified with respect to such outgoings, including but not limited to:-
(a) mortgage repayments in relation to the mortgage secured over the former matrimonial home;
(b) council, water and any other rates;
(c) electricity, gas and other utility and service accounts;
(d) maintenance and repair expenses to maintain the property in its state of repair and condition at the date of these orders; and
(e) all home insurance premiums.
12. That except as otherwise provided for by these Orders, the Wife shall retain, to the exclusion of the Husband, the following:-
(a) Motor Vehicle 3 in her possession;
(b) the funds standing to her credit in any bank account in her name or to which she has an interest including any inheritance moneys from her late mother;
(c) her superannuation entitlements; and
(d) all other items of personalty including but not limited to money, proceeds of bank accounts, jewellery, and personal effects presently in her possession and control.
13. That except as otherwise provided for by these Orders, the Husband shall retain, to the exclusion of the Wife, the following:-
(a) the following items located within the former matrimonial home, and that the Wife make the same available for collection by the Husband’s nominee within seventy (70) days:
(i) Husband’s sports equipment;
(ii) Husband’s tools;
(iii) Husband’s Motor Vehicle 4;
(iv) Husband’s Motor Vehicle 5;
(v) Husband’s Motor Vehicle 1;
(vi) Husband’s Motor Vehicle 6;
(vii) Husband’s personal belongings as contained in the outbuilding, and books and furniture.
(b) Motor Vehicle 7 in his possession;
(c) Motor Vehicle 8 in his possession;
(d) the funds standing to his credit in any bank account in his name or to which he has an interest;
(e) his superannuation entitlements; and
(f) all other items of personalty including but not limited to money, proceeds of bank accounts, shares, jewellery, and personal effects presently in his possession and control.
14. That in the event that the Wife receives a formal demand for the repayment of the Centrelink debt in her name, such that the payment is to be made as a lump sum payment as opposed to a periodic payment, then upon the Wife providing other written confirmation, and corroborating evidence, that she has made payment of one half of the said debt, the Husband shall meet the remaining half of the debt within twenty-eight (28) days of receiving the said notice from the Wife.
15. That except as otherwise provided for by these Orders, each of the parties shall remain liable for any debts in his or her sole name at the date of the orders and shall indemnify and hold harmless the other from any liability in relation thereto.
16. The Court will hear the parties as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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