Wallace and Rankin

Case [2015] FCCA 107

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLACE & RANKIN [2015] FCCA 107
Catchwords:
FAMILY LAW – De facto relationship contested by the respondent – parties lived together for 13 years and have 2 children – respondent being the father of the two children says the relationship was an “association of convenience” and that he just lived with the mother so he could help raise the children –declaration that de facto relationship existed – property division – parties each work as [omitted] during the relationship – initial contribution by the respondent – offsetting contributions by the applicant – adjustment for section 90SF(3) factors – applicant to receive 52% – respondent 48%.
Legislation:
Family Law Act 1975, ss.79, 90SM, 76, 90SF, 4AA
C & C [2005] FamCA 429;
Stanford and Stanford [2012] FamCAFC 1;
Pierce & Pierce (1999) FLC 192-844;
Daniher & Garlett [2014] FCCA 2961;
Elias and Elias (1977) FLC 90-267;
Crandall & Crandell [2009] FamCAFC 120;
Kersten & Taylor [2014] FCCA 65;
Jonah & White [2011] FamCA 221;
Allenby & Kimble [2012] FamCA 614;
In the marriage of CH & WA Willmore (1988) 12 FamLR 692;
Norton & Locke [2013] FamCAFC 202;
Baker & Landon [2010] FMCAfam 280;
Moby & Schulter [2010] FamCA 748;
Roy & Sturgeon (1986) DFC95-031;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28
Applicant: MS WALLACE
Respondent: MR RANKIN
File Number: CSC 533 of 2012
Judgment of: Judge Willis
Hearing dates: 12-14 March 2014
Date of Last Submission: 14 March 2014
Delivered at: Cairns
Delivered on: 22 January 2015

REPRESENTATION

Counsel for the Applicant: Mr Ryall
Solicitors for the Applicant: Bottoms English Lawyers
Solicitors for the Respondent: Self-represented

ORDERS

IT IS DECLARED THAT PURSUANT TO SECTION 90RD of the Family Law Act 1975 (“the Act”) that a de facto relationship as defined by Section 4AA of the Act existed between the Applicant and the Respondent at Perth and Cairns that commenced in July 1997 and broke down on 15 November 2010 in Cairns.

IT IS ORDERED THAT:

Noting the findings of the Court that the property is to be divided between the applicant and respondent on the basis of 52% to the applicant and 48% to the respondent, the following Orders apply:

  1. The Respondent is to pay to the Applicant the sum of $170,982.00 within 30 days of the date of this Order (“the payment.”) 

  2. Upon payment of the sum referred to in Order 1 herein, the applicant will simultaneously:

    (a)In consideration of receiving the payment, do all acts and things and sign all documents necessary to transfer to the respondent, at the expense of the respondent, her interest in the property situated at Property T in the State of Queensland more particularly described at Lot [omitted], Title Reference [omitted] (“the Cairns property”);

    and also in consideration of receiving the payment:

    (b)Relinquish her interest in the properties at Property G [G] in the State of Western Australia more particularly described as Certificate of…

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Wallace and Rankin [2015] FCCA 107
Case
[2015] FCCA 107
Decision Date

CaseChat Overview and Summary

In a proceeding before Judge Willis, the applicant and respondent sought declarations and orders concerning their property interests following the breakdown of a de facto relationship. The dispute centred on the division of assets, including properties located in Queensland and Western Australia, and the resolution of associated debts.

The court was required to determine whether a de facto relationship existed between the parties, as defined by the Family Law Act 1975, and to make orders for the division of their property and the discharge of liabilities. Specifically, the court needed to ascertain the commencement and breakdown dates of the relationship and to establish a just and equitable distribution of the assets and debts.

The court declared that a de facto relationship existed between the applicant and respondent, commencing in July 1997 and ending on 15 November 2010. The court ordered a property division of 52% to the applicant and 48% to the respondent. This was to be achieved by the respondent paying the applicant $170,982.00 within 30 days. Upon this payment, the applicant was to transfer her interest in the Cairns property to the respondent and relinquish her interest in the Western Australian properties. These transfers were conditional upon the respondent refinancing all joint or applicant's mortgages and debts into his sole name at his expense, and indemnifying the applicant against all such liabilities. In the event of the respondent's non-compliance with these payment and refinancing orders, the court provided for the sale of the Cairns, [G], and [R] properties, with the proceeds to be distributed according to the 52%/48% split after discharging specified debts and sale costs. The orders also stipulated that each party would retain sole entitlement to property in their possession, separate bank accounts, and any superannuation or leave entitlements, and would be solely liable for and indemnify the other against any personal debts or liabilities encumbering property awarded to them. The court also made provision for the Registrar to execute documents if a party failed to do so and ordered the applicant to file submissions regarding costs.

Orders

Orders of the court

IT IS DECLARED THAT PURSUANT TO SECTION 90RD of the Family Law Act 1975 (“the Act”) that a de facto relationship as defined by Section 4AA of the Act existed between the Applicant and the Respondent at Perth and Cairns that commenced in July 1997 and broke down on 15 November 2010 in Cairns.

IT IS ORDERED THAT:

Noting the findings of the Court that the property is to be divided between the applicant and respondent on the basis of 52% to the applicant and 48% to the respondent, the following Orders apply:

1.

The Respondent is to pay to the Applicant the sum of $170,982.00 within 30 days of the date of this Order (“the payment.”)

2.

Upon payment of the sum referred to in Order 1 herein, the applicant will simultaneously:

(a) In consideration of receiving the payment, do all acts and things and sign all documents necessary to transfer to the respondent, at the expense of the respondent, her interest in the property situated at Property T in the State of Queensland more particularly described at Lot [omitted], Title Reference [omitted] (“the Cairns property”);

and also in consideration of receiving the payment:

(b) Relinquish her interest in the properties at Property G [G] in the State of Western Australia more particularly described as Certificate of Title Register Book Volume [omitted] (“the [G] property”) and Property R in the State of Western Australia more particularly described as Certificate of Title Register Volume [omitted] (“the [R] property”) NOTING each of clauses (a) and (b) herein are conditional upon the respondent simultaneously refinancing all mortgages or debt of any kind whatsoever standing in their joint names or the applicant’s name and/or related to the properties referred to in this Order, into his sole name at his own expense and he shall be solely liable for payment of the debts as and when they fall due and shall indemnify the applicant against all liability arising from such mortgages or debts of whatsoever kind.

3.

Thereafter, save as is expressly provided for in these Orders, each party shall be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these Orders, including but not limited to:-

(a) Money standing to the credit of either party in any separate bank account is to remain their property;

(b) Each party foregoes any claims they may have to any superannuation benefit belonging to or earned by the other;

(c) Each party hereby foregoes any claim they may have to any long service leave, annual leave, or sick leave belonging to or earned by the other or to which the other may become entitled;

(d) 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;

(e) Each party shall be solely liable for and shall indemnify the other in relation to any personal debt howsoever arising;

(f) Neither party may hereafter pledge the credit of the other; and

(g) This Order shall be binding on the parties’ heirs, executors and assigns respectively.

Failure to comply with Order 1

4.

Should the Respondent fail to comply with Order 1 & 2 herein the following Orders will apply:

5.

The Applicant and Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at Property T, [T] (“the Cairns property as described in Order 2 (a) herein”) and for that purpose the following shall apply:

(a) The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then President of the Real Estate Institute of Queensland at the request of the parties or either of them.

(b) The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent.

(c) The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 80% of the list price shall be accepted by the parties as the sale price.

(d) The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.

(e) Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon it’s submission to them by the agent or their solicitor.

(f) The contract of sale shall provide for completion within 30 days after the date of contract.

(g) The proceeds of sale of the property shall be paid in the following manner and priority:

(i) To discharge Mortgage No. [omitted] to Australia and New Zealand Banking Group limited;

(ii) Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

(iii) Payment of the legal costs and outlays relating to the sale;

(iv) The balance to be paid as to 52% to the Applicant and as to 48% to the Respondent.

6.

The Applicant and Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at Property G (“the [G] property as described in Order 2 (b) herein”) and for that purpose the following shall apply:

(a) The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then President of the Real Estate Institute at the request of the parties or either of them.

(b) The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these orders the list price will be as nominated by the real estate agent.

(c) The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 80% of the list price shall be accepted by the parties as the sale price.

(d) The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.

(e) Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon it’s submission to them by the agent or their solicitor.

(f) The contract of sale shall provide for completion within 30 days after the date of contract.

(g) The proceeds of sale of the property shall be paid in the following manner and priority:

(i) To discharge Mortgage No. [omitted] to Australia and New Zealand Banking Group Limited;

(ii) Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

(iii) Payment of the legal costs and outlays relating to the sale;

(iv) The balance to be paid as to 52% to the Applicant and as to 48% to the Respondent.

7.

The Applicant and Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at Property R, [R] (“the [R] property described in Order 2 (b) herein”) and for that purpose the following shall apply:

(a) The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then President of the Real Estate Institute at the request of the parties or either of them.

(b) The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these orders the list price will be as nominated by the real estate agent.

(c) The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 80% of the list price shall be accepted by the parties as the sale price.

(d) The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.

(e) Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon it’s submission to them by the agent or their solicitor.

(f) The contract of sale shall provide for completion within 30 days after the date of contract.

(g) The proceeds of sale of the property shall be paid in the following manner and priority:

(i) Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

(ii) Payment of the legal costs and outlays relating to the sale;

(iii) The balance to be paid as to 52% to the Applicant and as to 48% to the Respondent.

8.

Subject to these orders, the Applicant and the Respondent be declared as against each other to have the sole right, title and interest in, and to be the legal and beneficial owners of:

(a) Any motor vehicles, plant and equipment, chattels, goods, furnishings and real property and other property which are at the date hereof in their possession respectively;

(b) Any monies, shares and debentures which stand in their sole names respectively as at the date hereof;

(c) Any entitlements to superannuation which stand in their sole names respectively as at the date hereof.

9.

If the Applicant or the Respondent refuse or neglect to execute any documents that he, she or they are required to execute pursuant to any of these Orders, that the Registrar of Cairns Registry of this Court be appointed pursuant to Section 106A to execute such deed or instrument in the name of the Applicant or the Respondent, and to do all acts and things necessary to give validity to the operation of the document. An affidavit deposing to the failure of the other party will be sufficient evidence.

Costs

10.

Within 28 days of the date of this Order, the Applicant is to file and serve written submissions as to costs being sought and annexing a draft order and schedule of costs claimed.

11.

The Respondent is to file and serve his Response in relation to the costs application within 14 days of being served with the Applicant’s material.

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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