SPARKE & BERNARD - [2013] FCCA 866

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPARKE & BERNARD

[2014] FCCA 866

Catchwords:
FAMILY LAW – Property – Property Orders – Consent orders – application to set aside property orders made by consent – where applicant did not obtain independent legal advice – where parties reconciled shortly after consent orders were made – whether miscarriage of justice – resumption of cohabitation after final property orders – intermingling of assets and income – whether by inference parties no longer bound by previous orders – whether implied consent to set aside orders – aggregation of periods of relationship – appropriate division of property – assets added back into asset pool – just and equitable – whether a superannuation splitting order should be made.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79, 79A, 90RD, 90SB, 90SF, 90SK, 90SM, 90SN

Cases cited:
Aguilar & Aguilar [2009] FamCA 1343 distinguished
NHC & RCH [2004] FamCA 633; (2004) 32 Fam LR 518; FLC 93-204
Dahl & Hamblin [2011] FamCAFC 202; (2011) 46 Fam LR 229; FLC 93-480
Gebert & Gebert (1990) 14 Fam LR 62; FLC 92-137 followed
Gitane & Velacruz [2008] FamCAFC 86; (2008) 39 Fam LR 460; FLC 93-371
Hamblin & Dahl [2010] FMCAfam 514 followed
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143 followed
McCabe & McCabe (1995) 19 Fam LR 579; FLC 92-634 followed
AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134; FLC 93-218
Ozick & Ozick [2012] FMCAfam 310 followed
Sommerville & Sommerville [1999] FamCA 958; (2000) FLC 042; (2001) 27 Fam LR 233 followed
Stanford v Stanford [2012] HC 52; (2012) 47 Fam LR 481; FLC 93-518 followed

Applicant:

MR SPARKE

Respondent:

MS BERNARD

File Number:

SYC 2856 of 2012

Judgment of:

Judge Scarlett

Hearing dates:

13-14 June 2013

Date of Last Submission:

14 June 2013

Delivered at:

Sydney

Delivered on:

30 April 2014

REPRESENTATION

Solicitor for the Applicant:

Ms Jamieson

Solicitors for the Applicant:

Gibson Howlin Lawyers

The Respondent:

The Respondent appeared in person

ORDERS

Orders 1 to 8 inclusive made by the Local Court of New South Wales at Picton on 25 March 2010 are set aside under the provisions of subsection 90SN(2) of the Family Law Act 1975.
In accordance with s.90RD(1) of the Family Law Act 1975, it is declared that a de facto relationship of two (2) years and eleven (11) months existed between the Applicant and the Respondent, for the following periods:
(a)from February 2008 to 23 January 2010;
(b)from 1 April 2010 to 25 August 2010; and
(c)from October 2010 to May 2011.
As provided by section 90SM of the Family Law Act 1975 the Respondent is to pay to the Applicant the sum of $162,555.00 within three (3) months from the date of this Order.
The Applicant is to retain to the exclusion of the Respondent, all of his superannuation entitlement.
The Applicant and the Respondent are to retain, to the exclusion of each other, all…

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 SPARKE & BERNARD

Details

AGLC: SPARKE & BERNARD [2014] FCCA 866
Case: [2013] FCCA 866
Decision Date: 30 April 2014

CaseChat Overview and Summary

The Applicant and the Respondent were parties to proceedings in the Family Court of Australia concerning the division of property following the breakdown of their de facto relationship. The dispute centred on the existence and duration of the de facto relationship and the appropriate distribution of assets and liabilities.

The court was required to determine whether a de facto relationship existed between the parties and, if so, for what periods. It also needed to consider the appropriate orders for the division of property, including superannuation entitlements, other assets, and liabilities, pursuant to the provisions of the *Family Law Act 1975* (Cth).

The court found that a de facto relationship of two years and eleven months had existed between the parties, spanning several distinct periods. Applying the principles of property adjustment under the *Family Law Act 1975*, the court ordered the Respondent to pay a sum of $162,555.00 to the Applicant. The Applicant was to retain his superannuation entitlements exclusively, while both parties were to retain all other assets and be solely liable for their respective debts.

Orders

Orders of the court

Orders 1 to 8 inclusive made by the Local Court of New South Wales at Picton on 25 March 2010 are set aside under the provisions of subsection 90SN(2) of the Family Law Act 1975.

In accordance with s.90RD(1) of the Family Law Act 1975, it is declared that a de facto relationship of two (2) years and eleven (11) months existed between the Applicant and the Respondent, for the following periods:

(a) from February 2008 to 23 January 2010;

(b) from 1 April 2010 to 25 August 2010; and

As provided by section 90SM of the Family Law Act 1975 the Respondent is to pay to the Applicant the sum of $162,555.00 within three (3) months from the date of this Order.

The Applicant is to retain to the exclusion of the Respondent, all of his superannuation entitlement.

The Applicant and the Respondent are to retain, to the exclusion of each other, all assets in their sole name, possession or control, including cash at bank, real property, business interests and motor vehicles.

The Applicant and the Respondent are to be solely liable for any debt or liability in their name and indemnify the other party and keep the other party indemnified in respect of any liability in their name.

Any party who seeks an Order for Costs must file and serve an Application in a Case and an affidavit setting out the amount of costs sought and how such an amount is calculated within one (1) month from the date of this Order.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.