WARNER & PELLIN - [2020] FCCA 1175

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARNER & PELLIN

[2020] FCCA 1175

Catchwords:
FAMILY LAW – Property proceedings – addbacks – where wife received post-separation inheritance and husband received insurance payment – contributions – where both parties made substantial contributions over long period – adjustments – where the wife seeks a Kennon adjustment by reason of family violence perpetrated by husband and it is accepted that the wife’s case falls within the exceptional category identified in Kennon – where the wife is to retain her full inheritance – where there be a 5% adjustment of remaining matrimonial property to husband resulting in 54/46 division in favour of Husband – just and equitable outcome.

Legislation:

Family Law Act 1975 (Cth), Pt VIII

Cases cited:

Kennon & Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC 91-092
Hickey v Hickey & Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC93-143
Stanford v Stanford (2012) FLC93-518
Norbis & Norbis (1986) FLC 91-712
Williams & Williams [2007] FamCA 313
Spagnardi & Spagnardi [2003] FamCA 905
Keating & Keating [2019] FamCAFC 46
Britt & Britt (2017) FLC 93-764
Eaton & Eaton [2020] FamCA 446
Baldini & Baldini [2020] FamCA 137
Drury & Benson [2020] FCCA 250
Kane & Kane (2013) FLC 93-569

Applicant:

MS WARNER

Respondent:

MR PELLIN

File Number:

NCC 185 of 2018

Judgment of:

Judge Betts

Hearing dates:

4, 5, 6 & 13 May 2020

Date of Last Submission:

13 May 2020

Delivered at:

Newcastle

Delivered on:

1 September 2020

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Byrnes Lawyers

Counsel for the Respondent:

Michael Weightman

Solicitors for the Respondent:

Trisley Lawyers

ORDERS

Within seven (7) days, each party do all such acts and things required to release the funds held by B Solicitors in a controlled monies account on behalf of the parties as follows:
(a)$239,376 to the husband;
(b)$242,441 to the wife.
(c)Any balance exceeding $481,817 to be disbursed 54% to the husband and 46% to the wife.
Within seven (7) days, each party do all acts and things required to sell the jointly owned C shares and distribute the sale proceeds 54% to the husband and 46% to the wife.
The wife be entitled to her interest in the property purchased by her “off the plan” and the husband relinquishes any interest in that property.
Except as otherwise provided for by these orders, each party is declared to have the sole right, title and interest to the exclusion of the other in respect of all assets in their name, including but not limited to:
(a)Chattels, goods, furnishings, motor vehicles and other personal property which are at the date hereof in their possession respectively;
(b)Any monies in bank accounts or any other financial institution;
(c)Shares; and
(d)Any present or future expectation they have under a trust or estate.
Each party shall indemnify, and keep indemnified, the other party from any liability held in their own name.
If either party refuses or neglects to sign or execute and…

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 WARNER & PELLIN

Details

AGLC: Warner and Pellin [2020] FCCA 1175
Case: [2020] FCCA 1175
Decision Date: 1 September 2020

CaseChat Overview and Summary

In the matter of *Warner & Pellin*, Judge Betts of the Federal Circuit Court of Australia considered property proceedings between a husband and wife. The dispute involved the division of assets and liabilities following the breakdown of the marriage, with particular focus on post-separation inheritances and insurance payments, as well as a claim for adjustment due to family violence.

The court was required to determine how to treat a post-separation inheritance received by the wife and an insurance payment received by the husband. Further, the court had to assess the contributions of each party to the marriage, acknowledging substantial contributions over a long period. A key issue was whether to grant a *Kennon* adjustment in favour of the wife, based on allegations of family violence perpetrated by the husband, which the court accepted fell within the exceptional category identified in *Kennon*.

Judge Betts reasoned that the wife should retain her full inheritance, as it was received post-separation. The court then considered the remaining matrimonial property, making a 5% adjustment in favour of the husband. This resulted in a final division of the remaining matrimonial property of 54% to the husband and 46% to the wife, aiming for a just and equitable outcome.

The orders made by the court included the disbursement of funds held in a controlled monies account, the sale and distribution of jointly owned shares, and the wife retaining her interest in an "off the plan" property. Each party was declared to have sole title to assets in their name, and they were to indemnify each other against liabilities. The orders also provided for the Registrar to execute documents if a party refused to do so.

Orders

Orders of the court

Within seven (7) days, each party do all such acts and things required to release the funds held by B Solicitors in a controlled monies account on behalf of the parties as follows:

(a) $239,376 to the husband;

(b) $242,441 to the wife.

Within seven (7) days, each party do all acts and things required to sell the jointly owned C shares and distribute the sale proceeds 54% to the husband and 46% to the wife.

The wife be entitled to her interest in the property purchased by her “off the plan” and the husband relinquishes any interest in that property.

Except as otherwise provided for by these orders, each party is declared to have the sole right, title and interest to the exclusion of the other in respect of all assets in their name, including but not limited to:

(a) Chattels, goods, furnishings, motor vehicles and other personal property which are at the date hereof in their possession respectively;

(b) Any monies in bank accounts or any other financial institution;

(d) Any present or future expectation they have under a trust or estate.

Each party shall indemnify, and keep indemnified, the other party from any liability held in their own name.

If either party refuses or neglects to sign or execute and return a documents within seven (7) days of a written request to do so then the Registrar of the Newcastle Registry of the Federal Circuit Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 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 the said neglect or refusal.

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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