Vaughn & Donnell - [2022] FedCFamC1F 994

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vaughn & Donnell [2022] FedCFamC1F 994

File number(s): NCC 2945 of 2021

Judgment of: SMITH J

Date of judgment: 2 December 2022

Catchwords: FAMILY LAW – INTERIM FINANCIAL MATTERS – Ex tempore reasons - Where the parties have been living separated under the one roof for over two years – Where each party seeks exclusive occupation of the jointly owned former matrimonial home – Where the wife seeks interim spouse maintenance –Where the wife does not work and says she has no effective earning capacity due to her health and time out of the open labour market – Where the husband has not submitted there should be no spouse maintenance but disputes the quantum claimed by the wife – Where the wife says the parties agreed to allow her adult children to live in her solely owned Suburb B property at a nominal rent and has now entered a Residential Tenancy Agreement with them at nominal rent – Where the husband says this is a sham transaction – Where the parties agree to private arbitration and the Judgment proceeds on that basis – Where the husband offers to provide $50,000 by way of partial property settlement to facilitate the wife rehousing herself – Ordered the husband pay to the wife $50,000 by way of partial property settlement – Ordered the husband have exclusive use and occupation of the former matrimonial home – Ordered the husband pay the mortgage and all rates, taxes and other outgoings including insurance and maintenance expenses for the former matrimonial home – Ordered the husband pay to the wife $1,600 per week in periodic spouse maintenance – Ordered the wife have exclusive use of the Motor Vehicle 1 – Ordered the husband be responsible for payment of all service and other outgoings including insurance and maintenance expenses for the motor vehicle

Legislation: Family Law Act 1975 (Cth) s 72

Cases cited:
Davis & Davis (1976) 11 ALR 445

Tailor & Tailor [2019] FamCA 383

Division: Division 1 First Instance

Number of paragraphs: 49

Date of last submission/s: 2 December 2022

Date of hearing: 2 December 2022

Place: Newcastle

Counsel for the Applicant: Mr Weightman

Solicitor for the Applicant: Powe & White Family Law

Counsel for the Respondent: Ms Kennedy

Solicitor for the Respondent: Michael Conley Lawyers
ORDERS

NCC 2945 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VAUGHN

Applicant

AND:
MR DONNELL

Respondent

order made by:

SMITH J

DATE OF ORDER:

2 DECEMBER 2022

THE COURT ORDERS THAT:
1.Within 35 days of the date of these Orders, the Applicant Wife vacate the property known as and situated at C Street, Suburb E NSW (“the Suburb E property”) and thereafter the Respondent Husband to have exclusive occupation of the Suburb E property pending further Order.
2.In relation to the Suburb E property the Respondent is required to pay: the mortgage, as to both principal and interest; all rates; all charges running with 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 Vaughn & Donnell

Details

AGLC: Vaughn & Donnell [2022] FedCFamC1F 994
Case: [2022] FedCFamC1F 994
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) heard an interim application in the case of Vaughn & Donnell concerning issues of occupation of a former matrimonial home, spouse maintenance, and a partial property settlement. The parties, Ms Vaughn and Mr Donnell, have been living separately under the same roof since their separation in September 2020. Both parties seek exclusive occupation of the jointly owned former matrimonial home, and Ms Vaughn also seeks interim spouse maintenance. The wife claims that she has no effective earning capacity due to her health and time away from the open labour market, while the husband disputes the quantum of the maintenance claimed by the wife but does not argue that there should be no maintenance. The court must consider the means and needs of the parties, the availability of alternative accommodation, the financial circumstances of the parties, and the hardship to either party if an exclusion order is made or not made. Given the breakdown of the relationship, the court finds that it is not reasonable, sensible, or practicable for the parties to continue living in the former matrimonial home together. The court orders that the husband have exclusive use and occupation of the former matrimonial home, with the condition that he meets the orders as to spouse maintenance and partial property settlement. The court finds that the husband should pay the wife $1,600 per week in spouse maintenance and $50,000 by way of partial property settlement. The court also orders that the wife have exclusive use of a motor vehicle, and the husband is responsible for payment of all service and other outgoings including insurance and maintenance expenses for the motor vehicle.

Orders