Travers & Debski (No 2)
[2022] FedCFamC1F 805
Federal Circuit and
Family Court of Australia (DIVISION 1)Travers & Debski (No 2) [2022] FedCFamC1F 805
File number(s): BRC 13687 of 2018 Judgment of: HOGAN J Date of judgment: 17 October 2022 Catchwords: FAMILY LAW – PROPERTY – Where reasons for judgment as to final property adjustment delivered – Where parties were heard about the terms of orders – Where orders were made in accordance with the Applicant’s draft orders. Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 29 Date of hearing: 17 October 2022 Place: Brisbane Counsel for the Applicant: Mr Coveney Solicitor for the Applicant: Bell Legal Group Solicitor for the Respondent: Mr Lavercombe, JML Rose ORDERS
BRC 13687 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TRAVERS
Applicant
AND: MR DEBSKI
Respondent
order made by:
HOGAN J
DATE OF ORDER:
17 OCTOBER 2022
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.Pursuant to s 90SM of the Family Law Act 1975 (Cth), the parties’ interests in the total combined net property of the parties be altered so as to reflect an overall division of net property as to 22.5% to the Applicant and 77.5% to the Respondent.
2.As part of her entitlement pursuant to order 1 hereof, the Applicant to receive and or retain the following assets and or liabilities:
(a)all of that real property situate at B Street, Suburb C in the State of Queensland more properly described as all of that real estate registered in Queensland as Lot … Registered Plan … bearing Title Reference …(“the Suburb C property”);
(b)the Motor Vehicle 3 registered in her name;
(c)funds held in any bank account in her sole name;
(d)all liabilities in her sole name.
3.The Applicant will relinquish any entitlement to any interest, whether present or future, under the Debski Family Trust.
4.As part of his entitlement pursuant to order 1 hereof, the Respondent to receive and or retain the following assets and or liabilities:
(a)all of his interests in his business and commercial activities and entities whether held in his name or held for his benefit;
(b)all real estate held in his name or held for his benefit not otherwise specified in these orders;
(c)all motor vehicles registered or otherwise held in his name or held for his benefit;
(d)all accounts held with Australian Financial Institutions in his name or held for his benefit;
(e)all superannuation interests held in his name or held for his benefit;
(f)all liabilities in his name or arising from his commercial activities whether realised or contingent.
5.Within 30 days of the date of these orders, the Respondent must:
(a)transfer to the Applicant all of his right, title and interest in the Suburb C property; and
(b)pay to the Applicant the sum of $86,047.82 by payment of that sum to the Bell Legal Group Trust Account.
6.Save as specified in these orders, the parties:
(a)are to retain all other assets in their respective possession; and
(b)indemnify each other against any liabilities held in their sole names.
7.Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this order within 14 days of being requested to do so.
8.If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then:
(a)the Registrar of the Brisbane Registry of the Federal Circuit and Family Court of Australia (Division 1) is hereby appointed under s 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to said neglect or refusal; and
(b)the defaulting party shall pay the other party’s costs of and incidental to such request and production of documents to the Registrar.
AND IT IS FURTHER ORDERED THAT
9.In the event that any party seeks an order that another party pay the costs of and incidental to the proceedings commenced by Initiating Application filed 26 November 2018:
(a)any such party shall, within twenty-eight (28) days of today, file and serve
(i)any affidavit necessary to support such application; and
(ii)written submissions in support of such application for costs; and
(b)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve:
(i)any affidavit necessary for the determination of any such application for costs; and
(ii)any written submissions in answer to the submissions filed and served by the party seeking an order for costs; and
(c)the party seeking an order for costs shall, within seven (7) days of being served with the submissions relied on by the party against whom an order for costs is sought, file and serve any further written submissions, strictly in reply, to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Travers & Debski has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J
The parties appear before the Court this morning in order to take advantage of the opportunity accorded to them to be heard about the terms of orders to be made to give effect to the findings and conclusions I expressed in Reasons for Judgment published on 30 September 2022.
On that date, this date was notified to the parties. That is, they have had since late on the evening of 30 September 2022 until this morning, 17 October 2022, to formulate their respective positions in relation to the terms of orders that each advances would be just and equitable and appropriate in the circumstances.
To the extent that I do not repeat, in the giving of these Reasons, the comments I have made to Mr Lavercombe, who appears on behalf of the Respondent, during the discourse between us this morning, I adopt the same into these Reasons, delivered orally, in explanation for the orders I intend to make.
Each of the parties advances a different proposal about those orders which are just and equitable.
The requirement for a consideration, in the exercise of the broad discretion accorded to trial judges, of the issue of the justice and equity of the orders is necessary because s 90SM of the Family Law Act 1975 (Cth) makes it clear that, whilst a court may make such an order as it considers appropriate in the determination of the proceedings under that section, it may only make an order if it is satisfied, in all the circumstances, that it is just and equitable to do so.
The parties, as I have said, sought to be heard in relation to the terms of orders which each advances are just and equitable to give effect to the conclusions and findings expressed in the Reasons delivered on 30 September this year.
The orders sought by the Applicant are as outlined in a Minute of Order which I will mark as Exhibit A and date today. A document entitled “Judgment Calculation” accompanied that and I will simply mark that as Exhibit B and date it with today’s date. In short summary, the Applicant sought an order that she retain the property in her possession and that the Respondent transfer to her his interest in real property situated at B Street, Suburb C in the State of Queensland, which I will hereafter refer to as the Suburb C property. Before I leave the orders sought by the Applicant, I should say that they also included that, in addition to retaining the property currently in her possession or under her control and receiving a transfer of the Respondent’s interest in the Suburb C property, she sought that the Respondent pay to her the sum of $86,047.82 by making that payment into the trust account of her solicitors.
Reference to Exhibit B establishes, in essence, the calculations to give effect to the conclusion expressed at [109] of the Reasons for Judgment, which reflected the conclusion reached and expressed at [108] of the same: namely, that, in this proceeding, the property of the parties be apportioned between them so as to accord 22.5 per cent of the value of the same to the Applicant and 77.5 per cent of the value of the same to the Respondent.
The dollar figure, based on the agreed Balance Sheet (Exhibit 6) detailing agreed values that the parties litigated on in their presentation of what was an in globo – and not an asset by asset – approach reflects the assertion in [109] of the Reasons that the conclusion expressed in [108] results in the Applicant having to receive property valued at $1,427,547.82 and the Respondent having to receive property valued at $4,917,109.18.
Such precise calculation was possible because the parties litigated on the basis of agreed values contained in the agreed Balance Sheet. Consequently, the dollar sum sought by the Applicant as the amount that the Respondent be ordered to pay to her – namely, the $86,047.82 – is calculated by reference to the figures set out at [109] of the Reasons for Judgment.
The orders sought by the Respondent initially were that the Court would be persuaded that it was just and equitable and appropriate to make an order that the Applicant transfer to him her interest in the Suburb C property and that he pay to her a sum which, using a rounded and approximate figure, was a little over $1.4 million.
Subsequent submissions made by Mr Lavercombe were to the effect that the Court would be persuaded that the orders which are just and equitable in the circumstances and appropriate are orders which would see the sale of the property and consequent machinery orders to ensure the division of the property in the manner he advocated for on behalf of the Respondent.
I was not provided with a draft Minute of Order by Mr Lavercombe on behalf of the Respondent to reflect either the first proposition or the second alternative advanced by him on behalf of his client. So the exact terms of any machinery orders to give effect to that proposal is unknown.
Mr Coveney, who appeared for the Applicant, made submissions in support of the orders sought by his client. In essence, they were that the Court would be persuaded that it is just and equitable to make orders in terms of Exhibit A because: the Applicant has been in sole occupation of the Suburb C property for some years and, during that time, has maintained it and paid its upkeep and rates; as the Respondent is the owner of real property (namely, the Suburb OO property which was acquired by him for cash in mid-2019), the proposal would see each of the parties having a home in which to live and would obviate the requirement that the Applicant, at her age and in her financial circumstances (albeit that, if the property was sold or, as was initially proposed, her interest transferred to the Respondent, she would be the recipient of a payment of a lump sum of more than $1.4 million) would be required to go to market and obtain alternative accommodation.
The submissions made by Mr Lavercombe in support of the orders for sale of the property included the expression of a concern on behalf of the Respondent that orders requiring him to transfer his interest to the Applicant would, in essence, see her benefit unfairly in any uplift in the value of the property over and above the agreed value of $1,330,000 – the agreed value being the value contained in the agreed Balance Sheet and the value upon which the calculations set out in the Reasons for Judgment were based.
Mr Lavercombe’s submissions were made absent any evidence to establish uplift. They were made absent any evidence of approximation of any asserted uplift. They were made in circumstances where there has been no application for leave to reopen the evidence to address that circumstance, despite the situation and position in this proceeding being always that each of the parties sought that the other be required to transfer their interest in the Suburb C property to the other.
It could not, in my view, be said that the orders (or the form of the orders) sought by the Applicant this morning are a surprise. It could not, in my view, be thought that the Respondent could in any way be taken by surprise.
It should also, in my view, be clearly remembered that the Reasons were delivered late on 30 September and this matter returns before me on 17 October 2022.
Mr Lavercombe’s submissions also included – although, perhaps, made in support of what was at that time termed the alternative proposal for orders for the sale of the Suburb C property – that: the Respondent sought, or had plans, or was engaged in the process of selling the Suburb OO property (being the property that he acquired in cash in mid-2019); he sought to be able to return to live in the Suburb C property because the same was situated closer to his children and to medical services; he felt as if he had been involuntarily ousted from that property and that he would (at least at that time of the submissions) prefer to move back into it and obtain the benefit from it, being a property into which he has contributed funds.
Mr Lavercombe’s submissions also included that, insofar as Mr Coveney submitted on behalf of the Applicant that her income position was adverse to that of the Respondent’s, that submission would need to take into account that she would be the recipient of a not insignificant lump sum payment – being, as I said, a little over $1.4 million.
It is clear on the evidence that the Applicant continued to live in the Suburb C property after the Respondent moved from that property in about mid-January 2018 and that she has continued to live in it other than for a relatively short period of time when she was prevented from doing so as a consequence of the Respondent moving back into the property, whilst she was absent, and changing the locks. She has lived, therefore, in that property (save for during that period) since the parties moved to live in it in about late 2006.
To the extent that the Respondent submits via Mr Lavercombe that consideration of justice and equity would require orders selling the property, I emphasise that: these litigants proceeded to have the Court determine their property proceedings on the basis of agreed values; there has been no application to reopen to adduce evidence in relation to the issue of value at any time during the time the matter was reserved (namely, from 20 December 2021) until Reasons were delivered on 30 September 2022; there is no evidence before me to establish, as a fact, the asserted uplift in value; the parties proceeded, as I have said, to have the Court consider an in globo approach rather than an asset by asset approach in its determination of their proceedings and the conclusions and findings, expressed in the Reasons for Judgment that are delivered, reflect this.
Finally, as I have already said, it was well-known as between them during the course of this litigation that each, if successful, would seek the opportunity to receive the interest of the other in the Suburb C property.
I have taken into account those submissions made by Mr Lavercombe which are supported by the evidence before me.
I have taken into account the submissions made by Mr Coveney on behalf of the Applicant.
In the exercise of the broad discretion accorded to trial judges to determine orders which are just and equitable and appropriate in the proceedings before them, I consider that orders in the terms of Exhibit A, as propounded by Mr Coveney on behalf of the Applicant, are orders which are just and equitable and appropriate.
I do so because I afford greater weight to the submissions made by Mr Coveney on behalf of the Applicant than to the submissions made by Mr Lavercombe on behalf of the Respondent to the extent where those submissions are, of course, supported by evidence.
I consider it clearly known to each of the parties, as I have said, that each sought to receive the share or interest of the other in the property as the final orders in the proceedings.
Given:
(a)the occupation by the Applicant of the premises (including after the mid-January 2018 separation of these parties); and
(b)that the Applicant wishes to continue to live in the property; and
(c)the fact that the Respondent has accommodated himself in the Suburb OO property which he acquired in cash in mid- 2019; and
(d)that, if he chooses to sell the same, the Respondent will be able to accommodate himself in whatever location he determines is appropriate – close to whatever services and members of his family he chooses to live near to,
I consider that the orders in Exhibit A are orders which are just and equitable and appropriate to reflect the findings I have expressed in the Reasons for Judgment.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 21 October 2022
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