FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Taplin & Hadley [2024] FedCFamC2F 626
File number(s): ADC 684 of 2023 Judgment of: JUDGE DICKSON Date of judgment: 23 May 2024 Catchwords: FAMILY LAW – PROPERTY – Final hearing – Relationship of over 14 years – Where the parties share care of the two children of the relationship – Whether the Court should approach the property division on a one-pool or a two-pool basis – Dispute as to contributions – Consideration of section 75(2) factors – Where the parties’ joint enterprise in commencing unfinished renovations on the former matrimonial home has resulted in a negative financial contribution to the value of the former matrimonial home – Where the wife seeks for the former matrimonial home be sold and to be sole signatory for its sale – Where the husband opposes the sale and seeks to retain the property – Justice and equity – One pool approach adopted – Orders for a 65/35 per centum division in favour of the wife. Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 75, 79, 106A.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 5.01, 15.06.
Cases cited: Babette & Falconer [2015] FamCAFC 124
Bevan & Bevan (2013) FLC 93–545
Bolger & Headon [2014] FamCAFC 27
Browne & Green [1999] FamCA 1483
Calder & Calder [2016] FamCAFC 36
Candlish & Pratt (1980) FLC 90-819
C & C (2005) 33 Fam LR 414
D & D [2003] FamCA 473
Dickons& Dickons (2012) 50 Fam LR 244
Dovgan & Dovgan [2021] FamCA 306
Ferraro & Ferraro (1992) 16 Fam LR 1
Fields & Smith [2015] FamCAFC 57
Fox & Percy (2003) 214 CLR 118
Garrett & Garrett (1984) FLC 91-539
Hayton & Bendle [2010] FamCA 592
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Housing Commission of New South Wales v Pastoral Company Pty Ltd [1983] 3 NSWLR 378
In the Marriage of Kowaliw [1981] FamCA 70
Jabour & Jabour [2019] FamCAFC 78
L & L [2003] FamCA 40
MacKinnon & Talbot [2023] FedCFamC1A 156
Marcon & Cussen [2017] FamCAFC 150
McBurney & Reddy [2013] FCCA 395Norbis & Norbis (1986) FLC 91-712
Perrin & Perrin (No 2) [2018] FamCAFC 122
Russell & Russell (1999) 25 Fam LR 629
Russo & Wylie (2016) FLC 93-747Stanford & Stanford [2012] HCA 52
Steinbrenner& Steinbrenner [2008] FamCAFC 193
Tomlin & Nilsen [2011] FMCAfam 166
U & U [2002] HCA 36
Woodcock & Woodcock (1997) FLC 92-739
Yellin & Temple [2013] FCCA 360Division: Division 2 Family Law Number of paragraphs: 176 Date of hearing: 27 and 28 March, 11 April and 3 May 2024 Place: Adelaide Counsel for the Applicant: Mr K. Tredrea Solicitor for the Applicant: All Family Law Counsel for the Respondent: Ms V. Lee Solicitor for the Respondent: Fleurieu Lawyers ORDERS
ADC 684 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TAPLIN
Applicant
AND: MR HADLEY
Respondent
ORDER MADE…
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CaseChat Overview and Summary
The court addressed several key legal issues. The primary issue was whether the division of property should be based on a one-pool or a two-pool approach. The court also considered the parties' contributions, both financial and non-financial, to the relationship and the property. A significant factor was the unfinished renovations on the former matrimonial home, which had resulted in a negative financial contribution to the property's value. The court had to balance these contributions against the need for a just and equitable outcome for both parties.
After evaluating the evidence and the relevant statutory factors, the court opted for a one-pool approach to the property division. The court determined that a 65/35 per centum division in favour of the wife was just and equitable. The former matrimonial home was to be sold, with the proceeds distributed according to the division. The court ordered the husband to pay a settlement sum to the wife within 60 days and to vacate the property if he failed to comply. The sale of the property was to be conducted under specific conditions, with both parties jointly responsible for the selling costs.
The final orders included the transfer of the former matrimonial home to the husband, subject to refinancing the mortgage, and the distribution of the net proceeds of the sale according to the division. The wife was to retain certain personal assets, while the husband was to retain his personal assets and savings. The court also provided for the transfer of vehicle registrations and the closure of their joint bank account. The parties were granted liberty to apply for adjustments to the sale proceeds distribution. All other pending applications were dismissed.
Orders
Orders of the court
ADC 684 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS TAPLIN
Applicant
AND:
MR HADLEY
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
23 MAY 2024
THE COURT ORDERS THAT:
1. Within sixty (60) days of this Order, the husband do pay to the trust account of All Family Law for and on behalf of the wife the sum of $226,368 (‘the settlement sum’).
2. Contemporaneously with the payment of the settlement sum, the parties shall do all such acts and things to:
(a) Transfer the property situate at B Street, Town C in the State of South Australia (‘the Town C property’) being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … into the sole name of the husband; and
(b) Discharge the mortgage in favour of the D Bank and the husband shall refinance the loan into his sole name.
3. If the husband fails to comply with paragraphs 1 and 2 herein, then within ninety (90) days of this Order, the husband shall vacate the Town C property and the parties shall do all things necessary to place the Town C property on the market for sale subject to the following conditions:
(a) The selling agent shall be agreed in writing and failing agreement within seventy-five (75) days of this order it shall be such selling agent as nominated by the Secretary of the Real Estate Institute of South Australia; and
(b) The terms and conditions of the sale including the sale price and the mode of sale shall be agreed in writing.
4. The parties shall follow the advice provided by the nominated selling agent from time to time including but not limited to the mode of sale, conditions of sale, any offers to purchase and any repairs or improvements required to the Town C property prior to sale.
5. The parties shall be jointly responsible for the costs of selling the said Town C property including but not limited to any gardening or housecleaning services recommended by the nominated selling agent.
6. Upon sale of the said Town C property, the proceeds of sale shall be disbursed as follows:
(a) To discharge the D Bank mortgage (Account Number …);
(b) To pay all sales costs and commissions;
(c) A sum representing 65% per centum of the parties’ net superannuation and non-superannuation assets to the wife; and
(d) A sum representing 35% per centum of the parties’ net superannuation and non-superannuation assets to the husband;
WHERE:
A. = the net assets retained by the wife – ($364,114);
B. = the net assets retained by the husband – ($48,521);
C. = the net proceeds of the sale of the Town C property;
D. = AND WHERE A+B+C = I;
E. The wife shall receive a sum equal to (I x 65%) – A; and
F. The husband shall receive a sum equal to (I x 35%) – B.
7. The wife do retain as her sole property the following:
(a) Her motor vehicle being Motor Vehicle 1;
(b) Her personal savings;
(c) Her superannuation entitlements;
(d) Her long service leave entitlements;
(e) Her furniture and effects; and
(f) All other property in her possession and control.
8. The husband do retain as his sole property the following:
(a) His motor vehicle being Motor Vehicle 2;
(b) His personal savings;
(c) His financial resource;
(d) His superannuation entitlements;
(e) His furniture and effects; and
(f) All other property in his possession and control.
9. Within twenty-eight (28) days of this Order the parties do all such things and sign all such documents necessary to:
(a) Transfer the registration of Motor Vehicle 2 into the sole name of the husband; and
(b) Close their joint account with D Bank.
10. Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event that any party should fail, refuse or neglect to execute any document necessary to implement the terms of these orders, then upon proof of such failure, refusal or neglect by affidavit, a Judicial Registrar or Deputy Registrar of this Honourable Court is hereby authorised to execute any such document on behalf of the defaulting party.
11. The parties have liberty to apply in relation to the sale of the Town C property and calculation of the monies to be paid to each party from the sale to produce a 65% / 35% per centum adjustment between them.
12. All extant applications are hereby dismissed.
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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