YATES & BREEN - [2017] FamCA 977

FAMILY COURT OF AUSTRALIA

HILLMAN & CARSON

[2018] FamCA 477

FAMILY LAW – PROPERTY SETTLEMENT – Where parties were in a de facto relationship for 13 years and have two children – Where parties seek adjustment under s90SM Family Law Act 1975 (Cth) – Where it is just and equitable to make an order – Where contributions are assessed as largely equal – Where the respondent will provide the primary care of the children – Where the applicant is granted a 30 per cent interest in the respondent’s pension – Where the respondent did not press an application for spousal maintenance but such application was considered and dismissed.

FAMILY LAW – COSTS – Where orders have previously been made requiring each party to pay costs and no further order in relation to costs is necessary.

Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)
Superannuation (State Public Sector) Deed 1990 (Qld)

Coghlan & Coghlan (2005) FLC 93-220
Gao & Wang (2016) FLC 93-735
Norbis & Norbis (1986) 161 CLR 513
Stanfordv Stanford (2012) 247 CLR 108
Stein v Stein (2000) FLC 93-004
Zaruba v Zaruba (2017) FLC 93-776

APPLICANT:

Mr Hillman

RESPONDENT:

Ms Carson

FILE NUMBER:

BRC

7935

2017

DATE DELIVERED:

26 June 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

18 - 19 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Simpson Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr G. Page QC

SOLICITOR FOR THE RESPONDENT:

Michael Dwyer Solicitor

Orders

The applicant retain free from any and all claims from the respondent, the property situated at Q Street, Suburb L, Queensland provided that he shall indemnify the respondent from any liabilities in respect of the said property.
The respondent retain free from any and all claims from the applicant the land situated at S Street, T Town, Queensland provided that she indemnify the applicant from any liabilities in respect of the said property.
The respondent retain free from any and all claims from the applicant the land situated at J Street, Suburb A, Queensland (“the Suburb A property”) provided that:
(a) she indemnify the applicant from any liabilities in respect of the said property; and
(b) in the event the mortgage encumbrance attaching to the property is in the name of the applicant, obtain a release from the mortgagee confirming he has no obligation or otherwise refinance the debt within 45 days of this Order.
In the event the respondent is required to and does not refinance the debt on the Suburb A property within 45 days of this Order (for whatever reason), the said property be sold forthwith on such terms and conditions as may be agreed and upon the sale, the proceeds be applied and in priority as follows:
(a)       To pay the mortgagee what is owed;
(b)       To pay the agent any costs of sale; and
(c)       The balance proceeds be retained by the respondent.
In accordance with s 90MT(1)(b) of the Family Law Act 1975 (Cth)…

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 YATES & BREEN

Details

AGLC: YATES & BREEN [2018] FamCA 477
Case: [2017] FamCA 977
Decision Date: 26 June 2018

CaseChat Overview and Summary

This matter concerned a property settlement application brought by the applicant, Mr. Hillman, and the respondent, Ms. Carson, who had been in a de facto relationship for 13 years and had two children. Both parties sought an adjustment of property interests under s 90SM of the *Family Law Act 1975* (Cth), with the court finding it just and equitable to make orders. Contributions were assessed as largely equal, and the respondent was to have primary care of the children.

The court was required to determine the appropriate division of the parties' assets and liabilities, including real property and superannuation interests, and to consider an application for spousal maintenance. The court also had to address the issue of costs.

Carew J reasoned that a just and equitable outcome necessitated a division of assets that reflected the parties' largely equal contributions and their future needs, particularly in light of the respondent's role as the primary caregiver for the children. The court ordered that the applicant retain the property at Q Street, Suburb L, Queensland, and the respondent retain the properties at S Street, T Town, Queensland, and J Street, Suburb A, Queensland, subject to certain indemnities and conditions regarding existing liabilities. Crucially, the respondent was ordered to transfer 30 per cent of her splittable superannuation payments from U Super to the applicant. The respondent's application for final spousal maintenance was dismissed.

The court further ordered that each party retain all other assets in their name or possession, free from the other's claims, and bear responsibility for any debts associated with those assets. Orders were made to facilitate the execution of the property settlement, including empowering a Registrar to sign documents in the event of a party's default. Regarding costs, the court noted that previous orders had been made requiring each party to pay their own costs, and no further orders were necessary.

Orders

Orders of the court

The applicant retain free from any and all claims from the respondent, the property situated at Q Street, Suburb L, Queensland provided that he shall indemnify the respondent from any liabilities in respect of the said property.

The respondent retain free from any and all claims from the applicant the land situated at S Street, T Town, Queensland provided that she indemnify the applicant from any liabilities in respect of the said property.

The respondent retain free from any and all claims from the applicant the land situated at J Street, Suburb A, Queensland (“the Suburb A property”) provided that:

(a) she indemnify the applicant from any liabilities in respect of the said property; and

(b) in the event the mortgage encumbrance attaching to the property is in the name of the applicant, obtain a release from the mortgagee confirming he has no obligation or otherwise refinance the debt within 45 days of this Order.

In the event the respondent is required to and does not refinance the debt on the Suburb A property within 45 days of this Order (for whatever reason), the said property be sold forthwith on such terms and conditions as may be agreed and upon the sale, the proceeds be applied and in priority as follows:

(a) To pay the mortgagee what is owed;

(b) To pay the agent any costs of sale; and

In accordance with s 90MT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment within the meaning of s 90ME of the Act becomes payable in respect of the interest of Ms Carson in U Super (U Super):

(a) Mr Hillman is entitled to be paid by the U Super Board (“the trustee”) 30 per cent of the splittable payment; and

(b) There be a corresponding reduction in the entitlement Ms Carson would have had in U Super but for this Order.

The trustee do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement awarded to the applicant in the preceding paragraph of this Order; and

(b) Pay the entitlement whenever the trustee makes a splittable payment from the respondent’s interest in U Super.

Paragraph 5 of this Order has effect from the operative time and the operative time is 26 June 2018.

Save for as otherwise provided in this Order;

(a) The parties shall retain all assets in their name or in their possession at the time of this Order free from any and all claims of the other party;

(b) The parties shall bear responsibility and indemnify the other for and in respect of any debt in their name or attached to any asset which they are to retain pursuant to this Order; and

(c) The parties do all acts and things as are necessary to give effect to this Order, including signing any documents or deeds and in the event a party fails to do so within seven days of a written request to do so then a Registrar of this Court is hereby empowered pursuant to s 106A of the Act to sign such documents in lieu of the defaulting party.

The respondent’s application for final spousal maintenance be dismissed.

10.

Any extant application be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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