Swayne and Holme - [2013] FCCA 2193

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWAYNE & HOLME

[2013] FCCA 2193

Catchwords:
FAMILY LAW – Property – de facto relationship – relationship seventeen years in duration – relationship produced one child now fourteen years of age – both parties in employment during relationship – applicant self-employed – respondent public servant – applicant diagnosed with debilitating illness in 2004 – applicant acknowledges problem gambling from 2004 onwards – dispute regarding level of gambling losses – applicant’s business now sold leaving significant debts – add backs – waste – negative contributions – just and equitable – assessment of contributions – assessment section 90SF(3) factors.

Legislation:

Family Law Act 1975, ss.4(1); 75(2); 79; 90RD; 90SF; 90SL; 90SM

Evidence Act 1995 (Cth), s.140(2)

C & C (2005) FLC 93-220
Pierce & Pierce (1999) FLC 92-844
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
Robb & Robb (1995) FLC92-555
Kessey & Kessey (1994) FLC 92-495
D & D [2005] FamCA 356
C & C (2006) FLC 93-269
Briginshaw v Briginshaw (1938) 60CLR 336
De Angelis & De Angelis (1993) FLC 93-133
Stanford v Stanford [2012] HCA 52
Watson & Ling [2013] FamCA 57
AJO & GRO (2005) 33 Fam LR 134
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Townsend (1994) 18 Fam LR 505
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Browne & Green (1999) 25 Fam LR 482
In the Marriage of Spiteri (2004) 33 FamLR 109
Clauson & Clauson (1995) FLC 92-595

Applicant:

MR SWAYNE

Respondent:

MS HOLME

File Number:

CAC 516 of 2013

Judgment of:

Judge Brown

Hearing dates:

11, 12 & 13 November 2013

Date of Last Submission:

13 November 2013

Delivered at:

Adelaide

Delivered on:

19 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr Hodgson

Solicitors for the Applicant:

Nicholl & Co

Counsel for the Respondent:

Mr Jones

Solicitors for the Respondent:

Jones Law Co

ORDERS

In full and final settlement of all claims for the settlement of de facto property between the parties:-

It is ordered as follows:

It is declared pursuant to section 90SL of the Family Law Act 1975 that a de facto relationship existed between the parties and as a consequence the court has authority to make orders altering the property interests of the parties.
Within forty-two days of the date of these orders Ms Holme (hereinafter referred to as the respondent) pay to Mr Swayne (hereinafter referred to as the applicant) the sum of $194,000.00.
Concurrently with the payment referred to in order (2) hereof, the applicant execute a transfer and all necessary documents to transfer all his estate, title and interest in the property and land comprised in block [omitted], section [omitted] of [omitted] and being the whole of the property known as and situate at Property B, in the Australian Capital territory (hereinafter referred to as the former family home) to the respondent.
In the event the respondent fails to comply…

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 Swayne and Holme

Details

AGLC: SWAYNE & HOLME [2013] FCCA 2193
Case: [2013] FCCA 2193
Decision Date: 19 December 2013

CaseChat Overview and Summary

This matter concerned property settlement proceedings between Mr Swayne (the applicant) and Ms Holme (the respondent), who had been in a de facto relationship. The court was required to determine the parties' respective property interests and make orders for their division.

The primary legal issues before the court were whether a de facto relationship existed between the parties, thereby conferring jurisdiction, and how the parties' property and financial resources should be divided in light of their contributions and the circumstances of the case. A significant evidentiary issue involved the quantification of Mr Swayne's gambling losses and their impact on his financial affairs and the overall property pool.

The court found that a de facto relationship existed between the parties, granting it jurisdiction to make property orders under the *Family Law Act 1975*. The court's reasoning, as evidenced by the orders made, involved a comprehensive division of assets and liabilities. This included the transfer of the former family home, the payment of a sum of money from the respondent to the applicant, the sale of a motor vehicle with proceeds to be divided equally, and the allocation of a portion of the respondent's superannuation to the applicant. The court also addressed the division of other assets, including motor vehicles, chattels, and personal effects, and ordered the applicant to indemnify the respondent against liabilities arising from his business. The court considered the financial contributions made by Ms Holme's father, Mr H, to the family and treated these as emanating from the applicant for the purposes of the proceedings.

The court made detailed orders for the settlement of property, including provisions for the sale of the former family home and a motor vehicle, the division of proceeds, and the allocation of superannuation interests. The court also made orders regarding the retention of specific assets by each party and the execution of necessary documents. Finally, the court made orders concerning the care arrangements for the child, [X], and dismissed all other applications.

Orders

Orders of the court

In full and final settlement of all claims for the settlement of de facto property between the parties:-

It is ordered as follows:

It is declared pursuant to section 90SL of the Family Law Act 1975 that a de facto relationship existed between the parties and as a consequence the court has authority to make orders altering the property interests of the parties.

Within forty-two days of the date of these orders Ms Holme (hereinafter referred to as the respondent) pay to Mr Swayne (hereinafter referred to as the applicant) the sum of $194,000.00.

Concurrently with the payment referred to in order (2) hereof, the applicant execute a transfer and all necessary documents to transfer all his estate, title and interest in the property and land comprised in block [omitted], section [omitted] of [omitted] and being the whole of the property known as and situate at Property B, in the Australian Capital territory (hereinafter referred to as the former family home) to the respondent.

In the event the respondent fails to comply with order (2) hereof, the former family home is to be placed on the market for sale by private treaty at a price to be agreed between the parties and failing agreement to be $560,000.00 with the selling agent to be agreed between the parties and failing agreement to be an agent nominated by the Secretary of the Real Institute of the Australian Capital Territory or his/her nominee.

Upon settlement of the sale of the property, the proceeds be divided as follows:

(a) To pay all necessary selling costs and agents fees;

(b) To discharge the mortgage secured against the property in favour of the ANZ Bank;

(i) Transact - $1,466.22;

(ii) [K] Accountants - $9,210.00

(iii) ACT Revenue - $6,515.00

(iv) Actew AGL - $7,994.00

(v) Natural Gas account - $6,232.00

(d) As to the remainder fifty per cent to the applicant and fifty per cent to the respondent.

The applicant is to indemnify the respondent and keep her indemnified in respect to all liabilities in his name and in the name of [A] Pty Ltd arising from the operation of the business operated by him and known as [A].

Within thirty-five (35) days of the date of these orders the respondent make the following chattels available to the applicant to collect from the former family home, at his own expense:

(a) Two, two seater leather lounge;

(b) Freedom glass table and six chairs;

(d) Three wall units;

(e) Coffee table made of tree stump – a present from the applicant’s sister;

(f) Glass table, laminated with rice paper on top – made as a present for the applicant from a former employee;

(g) Guitar; and

(h) Telescope – a gift.

Within forty-two (42) days of the date of these orders the parties are to do all things necessary to place the 1996 model Ford Falcon motor vehicle, currently in the possession of the applicant, on the market for sale at a price to be agreed between the parties and upon sale of the vehicle the proceeds are to be divided equally between the parties.

Pursuant to section 90MT(4) of the Family Law Act 1975 a base amount of $45,000.00 be allocated to the applicant in respect of the respondent’s superannuation interest in the [P] Superannuation Scheme under membership number [omitted] (hereinafter referred to as “the [P] Superannuation Fund”) and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest, the applicant is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of that base amount and there is to be a corresponding reduction in the entitlement of the respondent.

10.

The trustee of the [P] Superannuation Scheme, the applicant and the respondent, in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all such documents as may be necessary to calculate the payment entitlements of the applicant in accordance with order (9) to have effect from the operative time, which shall be thirty-five (35) days from the date of these orders.

11.

Including but without limiting the effect hereof, the applicant shall retain for his sole use and benefit absolutely, free from any other claim or demand of the respondent:

(a) The 1973 model Jaguar XJ6 motor vehicle currently in his possession;

(b) The Quintrex 16 foot fishabout boat in his possession;

(d) Any other property and or financial resources in the applicant’s name and/or possession not otherwise specified herein.

12.

Including but without limiting the effect hereof and subject to the provisions of order (7) hereof, the respondent shall retain for his sole use and benefit absolutely, free from any other claim or demand of the applicant:

(a) The 2005 model Subaru Outback motor vehicle currently in her possession;

(b) The furniture and furnishings currently in her possession, power and control;

(d) Any other property and or financial resources in the respondent’s name and/or possession not otherwise specified herein.

13.

In the event that either party refuses or neglects to execute any deed or instrument having been directed to do so by these orders than the Registrar of this court at Canberra shall have the power as prescribed by section 106A of the Family Law Act 1975 to execute such deed or instrument on his or her behalf and to do all acts and things necessary to give validity and operation to such deed or instrument.

14.

The child [X] born [in] 1999 live with her mother and spend time with her father, on terms and conditions to be agreed between the parties, from time to time, but subject to [X]’s wishes.

15.

The mother is to encourage and support [X] to spend time with her father.

16.

All applications be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

However, this can only be done within a framework of “ordinary notions of justice and equity” between the parties concerned.[16] In my view, the relevance of Ms Holme’s contributions towards Ms E is that it exemplifies that she was required, more and more, to assume Mr Swayne’s responsibilities in the family overall. [16] See Robb & Robb (1995) FLC92-555 at 81,547f) Mr H’s evidence and its implications Mr H was a pleasant and frank witness. He is very family orientated and extremely fond of his daughter and granddaughter. He is seventy years of age and permanently retired. He is not a wealthy person, nor one who can be regarded as being punctilious in the keeping of his financial records. It was to her father Ms Holme turned, when she was unable to pay [X]’s school fees. Mr H has provided unequivocal documentary evidence that he provided $2,520.00 for [X]’s school fees. It is likely that the overall sum provided, for the fees, was greater. However, Mr H has not retained the records. In addition, it is clear that Mr H provided the sum of $19,000.00 to enable Ms Holme to purchase the motor vehicle, which she currently utilises. I also accept that Mr H regularly provided other sums to his daughter, when called upon to do so. He did this without hesitation, but did not always keep a record of the payment. Overall, Mr H estimates that, during the period of the parties’ relationship, he gifted his daughter a sum somewhere between $60,000.00 and $65,000.00. In the absence of documentary proof, I approach this figure with some caution. However, I accept that Mr H made significant financial contributions, which benefited the family concerned in this case overall. In my view, in the circumstances of this case, Mr H’s significant direct financial contributions must be considered as emanating from the applicant, for the purpose of these proceedings. [17] Mr H became involved because he was aware that his daughter was struggling financially because Mr Swayne was, in some way, incapacitated. [17] See Kessey & Kessey (1994) FLC 92-495 at 81,149 Because of his devotion for Ms Holme and [X], he was prepared to step into the breach. In addition, I accept that Mr H did a number of maintenance tasks around the parties’ home. He seems to be a handy sort of person, who enjoys gardening and maintenance tasks. In this regard, I accept Ms Holme’s evidence that she and her father did most of the routine maintenance around the Property B property. This is the central evidentiary issue arising in the case. It raises complex legal, equitable and indeed moral issues. It concerns the point at which Mr Swayne’s gambling losses should result in him being penalised for some form of economic fault, in these proceedings and, if so, how that fault should be allocated, in practical terms. The difficulty in the case is that it is difficult to quantify exactly the level of Mr Swayne’s losses and place those losses within the context of his overall business affairs. As previously indicated, the standard of proof, in these civil proceedings, is the balance of probabilities.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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