TEMPLETON & TEMPLETON - [2019] FCCA 1533

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEMPLETON & TEMPLETON

[2019] FCCA 1533

Catchwords:
FAMILY LAW – Property dispute after over 20 years marriage – only assets being matrimonial home and husband’s superannuation – whether superannuation should be split – wife seeking to retain matrimonial home – just and equitable in particular circumstances of the case that the wife retain the matrimonial home and the husband retain his superannuation.

Cases cited:
Stanford v Stanford [2012] HCA 52
Kennon v Spry; Spry v Kennon [2008] HCA 56
Keehan & Keehan [2015] FamCAFC 122

Applicant:

MR TEMPLETON

Respondent:

MS TEMPLETON

File Number:

DGC 2224 of 2018

Judgment of:

Judge Burchardt

Hearing date:

29 March 2019

Date of Last Submission:

29 March 2019

Delivered at:

Dandenong

Delivered on:

17 June 2019

REPRESENTATION

Counsel for the Applicant:

Mr Potter

Solicitors for the Applicant:

Scammell Black Mileo

The Respondent:

In Person

ORDERS

That the Respondent pay the Applicant $45,500.00 (“the payment”) within 60 days.
That in the event that the whole of the payment has not been made by the date, the real property situate at Street A, Suburb B, Certificate and Title Volume … Folio … on Plan of Subdivision No. … (“the property”), be forthwith sold together out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge the mortgage and any other encumbrance affecting the property;
(c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 7.5 per centum per annum adjusted monthly from the date to the wife.
That pending the payment or completion of the sale:
(a)The Respondent have the sole right to occupy the property and during such right of occupation the Respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the property upon trust pursuant to these orders; and
(c)Neither party encumber the property without the consent in writing of the other party.
That the Applicant forthwith upon payment pursuant to order (1) do all necessary acts and things and sign all necessary documents to transfer to the Respondent at the expense of the Applicant all his right, title and interest in the property.
That the Respondent be liable for and indemnify the Applicant against all payments in respect of Mortgage … in favour of the Commonwealth Bank of Australia.
That unless otherwise specified in these orders and save for the purpose 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 superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders.
(b)Insurance policies remain the sole property of the owner/beneficiary named thereon/in.
(c)Each party be solely liable for and indemnify the…

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 TEMPLETON & TEMPLETON

Details

AGLC: TEMPLETON & TEMPLETON [2019] FCCA 1533
Case: [2019] FCCA 1533
Decision Date: 17 June 2019

CaseChat Overview and Summary

In the matter of Templeton & Templeton, Judge Burchardt considered a property dispute between a husband and wife following a marriage of over 20 years. The sole assets available for division were the matrimonial home and the husband's superannuation. The wife sought to retain the matrimonial home, while the court had to determine whether the husband's superannuation should be split.

The court was required to determine how to achieve a just and equitable distribution of the parties' limited assets, specifically addressing the division of the matrimonial home and the husband's superannuation in the particular circumstances of the case.

Judge Burchardt reasoned that it was just and equitable for the wife to retain the matrimonial home and for the husband to retain his superannuation. The court ordered the husband to pay the wife $45,500 within 60 days. In the event of non-payment, the matrimonial home was to be sold, with proceeds applied first to sale costs, then to discharge any mortgage, and finally to satisfy the outstanding payment to the wife with interest. Pending payment or sale, the husband was granted sole occupation of the property, responsible for mortgage instalments, rates, and taxes. The parties were to hold their respective interests in the property on trust, and neither could encumber it without the other's consent. Upon payment, the wife was to transfer her interest in the property to the husband at her expense. The husband was to indemnify the wife against payments for the mortgage. Crucially, each party was to be solely entitled to their respective superannuation and other property, and each was to indemnify the other against liabilities encumbering property they received under the orders, with any joint tenancies severed. The wife's application of 2 July 2018 was otherwise dismissed.

Orders

Orders of the court

That the Respondent pay the Applicant $45,500.00 (“the payment”) within 60 days.

That in the event that the whole of the payment has not been made by the date, the real property situate at Street A, Suburb B, Certificate and Title Volume … Folio … on Plan of Subdivision No. … (“the property”), be forthwith sold together out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

(a) Firstly to pay all costs, commissions and expenses of the sale;

(b) Secondly to discharge the mortgage and any other encumbrance affecting the property;

(c) Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 7.5 per centum per annum adjusted monthly from the date to the wife.

That pending the payment or completion of the sale:

(a) The Respondent have the sole right to occupy the property and during such right of occupation the Respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b) The parties hold their respective interests in the property upon trust pursuant to these orders; and

That the Applicant forthwith upon payment pursuant to order (1) do all necessary acts and things and sign all necessary documents to transfer to the Respondent at the expense of the Applicant all his right, title and interest in the property.

That the Respondent be liable for and indemnify the Applicant against all payments in respect of Mortgage … in favour of the Commonwealth Bank of Australia.

That unless otherwise specified in these orders and save for the purpose 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 superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders.

(b) Insurance policies remain the sole property of the owner/beneficiary named thereon/in.

(c) 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.

(d) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

The application of the Applicant on the 2 day of July 2018 otherwise be dismissed.

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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