VOLPE & STARK - [2019] FCCA 692

FEDERAL CIRCUIT COURT OF AUSTRALIA

VOLPE & STARK [2019] FCCA 692

Catchwords:
FAMILY LAW – Property – undefended hearing – de facto relationship of less than 2 years – significant contributions made.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(4), 90SB, 117(2), 117(2A)

Family Law Rules 2004

Federal Circuit Court Rules 2001 r.21.02(2)

Cases cited:

Penfold & Penfold (1980) 114 CLR 311

Latoudis v Casey (1990) 170 CLR 534

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Kennon & Kennon (1997) FLC 92-757

In the Marriage of Norbis (1986) 10 Fam LR 819

Re David Costs (1998) FLC 92-809

Stanford v Stanford [2002] HCA 52

Braithwaite & Braithwaite [2007]FamCA 468

Prantage & Prantage 49 Fam LR 197

Wrenstead & Eades [2016] FamCAFC 46

Applicant: MS VOLPE

Respondent: MR STARK

File Number: PAC 3633 of 2018

Judgment of: Judge Humphreys OAM

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Parramatta

Delivered on: 22 March 2019
REPRESENTATION

Counsel for the Applicant: Ms Druitt

Solicitors for the Applicant: Caldwell Martin & Cox

No Appearance for the Respondent
ORDERS
(1)The Applicant have leave to institute proceedings for property settlement pursuant to s.90SB(c) of the Family Law Act 1975.
(2)The Respondent shall, within 6 weeks from the date of these Orders, do all such acts and things and sign all such deeds, documents and instruments as may be necessary to transfer to the Applicant the whole of his interest in the home situate at and known as Property A (herein referred to as the "Property A Property") in the State of New South Wales and being the whole of the land contained within Certificate of Title Folio Identifier ….
(3)Simultaneously with the transfer referred to in Order 2 above, the Applicant shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to refinance the existing mortgage to Westpac Banking Corporation secured over the property at Property A in the State of New South Wales out of the parties’ joint names and into the Applicant'ssole name or the name of her nominees and the Applicant shall, from that date, pay and bear as and when they fall due all repayments of principal and interest in relation to the said mortgage and shall and does hereby indemnify the Respondent against any liability for a contribution to it AND IN THIS REGARD the Respondent shall sign all such authorities as may be necessary to give effect to this Order.
(4)From the date of these Orders the Applicant shall be granted exclusive occupation of the Property A Property to the exclusion of the Respondent.
(5)Unless otherwise provided for within these Orders, the Applicant shall be declared to be the sole legal and beneficial owner and shall retain all of all her right title and interest in and to all assets in her name, possession and control, including but not limited to the following:
(a)Business [B];
(b)all cash at bank and moneys invested…

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 VOLPE & STARK

Details

AGLC: VOLPE & STARK [2019] FCCA 692
Case: [2019] FCCA 692
Decision Date: 22 March 2019

CaseChat Overview and Summary

This matter concerned an undefended hearing before Judge Humphreys OAM in the context of family law property settlement proceedings. The parties were involved in a de facto relationship of less than two years' duration, and the proceedings addressed the division of their assets, with a particular focus on a property.

The court was required to determine the appropriate orders for property settlement, including the division of a jointly owned home, the allocation of responsibility for an existing mortgage, and the exclusive occupation of the home. Additionally, the court needed to make declarations regarding the sole legal and beneficial ownership of various other assets held by each party, and to address the issue of costs and the potential for a third party to execute documents on behalf of a party who failed to comply with the court's orders.

The court's reasoning, as reflected in the orders made, involved granting the applicant leave to institute proceedings for property settlement pursuant to s.90SB(c) of the Family Law Act 1975. The orders provided for the transfer of the respondent's interest in the jointly owned home to the applicant, with the applicant assuming sole responsibility for refinancing the mortgage and indemnifying the respondent against any future liability. The applicant was granted exclusive occupation of the home, and specific declarations were made regarding the sole ownership of other assets held by each party. The court also made provision for the Registrar to execute documents if a party failed to comply with the orders and ordered the respondent to pay the applicant's costs in relation to the proceedings and the expert valuation report.

Orders

Orders of the court

(1) The Applicant have leave to institute proceedings for property settlement pursuant to s.90SB(c) of the Family Law Act 1975.

(2) The Respondent shall, within 6 weeks from the date of these Orders, do all such acts and things and sign all such deeds, documents and instruments as may be necessary to transfer to the Applicant the whole of his interest in the home situate at and known as Property A (herein referred to as the "Property A Property") in the State of New South Wales and being the whole of the land contained within Certificate of Title Folio Identifier ….

(3) Simultaneously with the transfer referred to in Order 2 above, the Applicant shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to refinance the existing mortgage to Westpac Banking Corporation secured over the property at Property A in the State of New South Wales out of the parties’ joint names and into the Applicant'ssole name or the name of her nominees and the Applicant shall, from that date, pay and bear as and when they fall due all repayments of principal and interest in relation to the said mortgage and shall and does hereby indemnify the Respondent against any liability for a contribution to it AND IN THIS REGARD the Respondent shall sign all such authorities as may be necessary to give effect to this Order.

(4) From the date of these Orders the Applicant shall be granted exclusive occupation of the Property A Property to the exclusion of the Respondent.

(5) Unless otherwise provided for within these Orders, the Applicant shall be declared to be the sole legal and beneficial owner and shall retain all of all her right title and interest in and to all assets in her name, possession and control, including but not limited to the following:

(a) Business [B];

(b) all cash at bank and moneys invested by her in her sole name;

(d) any superannuation entitlements received by the Applicant and invested by her or on her behalf.

(6) Unless otherwise provided for within these Orders, the Respondent shall be declared to be the sole legal and beneficial owner and shall retain of all of his right, title and interest in and to all assets in his name, possession and control, including but not limited to the following:

(a) property at Property C in the State of New South Wales (herein referred to as the Property C property"), being Folio Identifier … and all associated mortgages and encumbrances held over the Property C property;

(b) all cash at bank and moneys invested by him in his sole name;

(d) any motor vehicle in his possession;

(e) any superannuation entitlements received by the Respondent and invested by him or on his behalf.

(7) That, unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders:

(a) each party shall be solely entitled to the exclusion of the other in both law and in equity to:

(i) all property (including choses-in-action) in the possession of such party as at the date of this agreement;

(ii) all insurance policies in relation to which they are the Life Insured.

(b) each party shall 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.

(i) The parties hereby declare that they are not aware of any liability which either of them has which is a joint or several liability with the other including, but without limiting the generality of the foregoing, in respect of or pursuant to bank, credit or charge accounts, guarantees or as a result of any of the parties’ previous business (if any) or other dealings;

(ii) If it is subsequently found that any such liability as is described in sub clause (i) of this clause exists or arises, the party pursuant to whose business or other dealings such liability arose, shall indemnify the other against any liability to contribute towards any claims, costs, demands, suits, actions, proceedings, orders or judgments whenever arising which may be made, brought against or incurred by the other party in respect thereof.

(8) In the event that either party fails to sign any necessary documents or instruments or to do any acts required or contemplated by these Orders to be done, with such failure continuing for 14 days, then the Registrar of the Federal Circuit Court of Australia shall pursuant to section 106A of the Family Law Act 1975, have the power to execute any documents or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.

(9) In accordance with Order 8 of the orders made on 27 September 2018, within 90 days from the date of these orders the Respondent pay the costs of the Applicant in accordance with Schedule 3 of the Family Law Rules 2004 and fixed in the sum of $1,006.

(10) In accordance with Order 6 of the orders made on 27 November 2018, within 90 days from the date of these orders the Respondent pay the costs of the Applicant in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 and fixed in the sum of $1,120.00.

(11) Within 21 days of the date of this order, the Respondent is to pay the Applicant the sum of $2,763.20 being the Respondent’s half share of the costs of the expert valuation report.

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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