Yellin and Temple - [2013] FCCA 360

FEDERAL CIRCUIT COURT OF AUSTRALIA

YELLIN & TEMPLE

[2013] FCCA 360

Catchwords:
FAMILY LAW – Property settlement – marriage of 13 years 4 months – contributions – assessment of the weight of initial contribution and the use to which the parties put the contribution – gifts or loans of money from respondent’s parents regarded as contributions by the respondent – post separation contribution to the welfare of the parties’ children – where no adjustments under s.75(2) of the Family Law Act 1975 (Cth) – just and equitable – whether it is just and equitable to make a superannuation splitting order – where respondent seeks to retain the former matrimonial home for herself and two of the parties’ three children.

Legislation:
Family Law Act 1975 (Cth), ss.75, 79, 81, 90MT, 106A

Family Law (Superannuation) Regulations 2001 Part 6

Cases cited:
Gosper & Gosper (1987) 90 FLR 1: 11 Fam LR 601; FLC 91-818
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Kessey & Kessey (1994) 18 Fam LR 149; FLC 92-495
Pellegrino & Pellegrino (1997) 22 Fam LR 474; FLC 92-789
Pierce & Pierce [1998] FamCA 74; (1998) 24 Fam LR 377; (1999) FLC 92-844
Stanford v Stanford [2012] HCA 52
Williams & Williams (1985) 10 Fam LR 355; FLC 91-628

Applicant:

MR YELLIN

Respondent:

MS TEMPLE (FORMERLY YELLIN)

File Number:

SYC 5557 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

16-17 May 2013

Date of Last Submission:

17 May 2013

Delivered at:

Sydney

Delivered on:

30 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Watkins

Solicitors for the Applicant:

Slattery Thompson

Counsel for the Respondent:

Mr Lee

Solicitors for the Respondent:

George Khoury & Co

ORDERS

The name of the Respondent is MS TEMPLE.
The Respondent is to pay to the Applicant the sum of $65,639.06 within three (3) months of the date of these Orders and upon payment the Applicant is to transfer to the Respondent all of his right, title and interest in the property situate at and known as Property G in the State of New South Wales.
The Respondent must within three (3) months of the date of these Orders and contemporaneously with the transfer of the Applicant’s right, title and interest in the property at Property G, do all acts and things necessary and sign all documents and execute all instruments so as to refinance the mortgage secured over the said property into the Respondent’s sole name absolutely and indemnify and keep the Applicant indemnified against all liability relating to the mortgage secured over the said property.
In the event that the Respondent should fail to pay the sum of $65,639.06 to the Applicant within the time specified in Order (1) above, the Applicant and the Respondent must forthwith sign all documents and do all acts and things necessary to sell the property at Property G on the following terms and conditions:
(a)The property is to be listed for sale by private treaty for a period of…

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 Yellin and Temple

Details

AGLC: YELLIN & TEMPLE [2013] FCCA 360
Case: [2013] FCCA 360
Decision Date: 30 May 2013

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Mr Yellin, against the Respondent, Ms Temple, in the Federal Circuit and Family Court of Australia. The dispute revolved around the division of property and financial resources between the parties. The court was required to make orders concerning the transfer of a property, financial settlements, and the allocation of various assets and liabilities.

The primary legal issues before the court were how to equitably divide the parties' property, including a specific property identified as Property G, and to determine the financial obligations of each party. This involved assessing the value of assets, including superannuation entitlements and personal belongings, and addressing the outstanding mortgage on Property G. The court also needed to establish a mechanism for the sale of Property G should the Respondent fail to meet her financial obligations.

Judge Scarlett ordered that the Respondent pay the Applicant a sum of $65,639.06 within three months, upon which the Applicant would transfer his interest in Property G to the Respondent. The Respondent was also ordered to refinance the mortgage on Property G into her sole name and indemnify the Applicant against any liability. In the event of non-payment, the property was to be sold, with the net proceeds disbursed first to the mortgagee, then 40% to the Applicant, and 60% to the Respondent. Each party was to retain their respective bank accounts, superannuation, motor vehicles, and personal effects, and each was to be responsible for their own liabilities, indemnifying the other against any claims. The court also appointed a Registrar to execute documents if either party failed to comply with the orders.

Orders

Orders of the court

The name of the Respondent is MS TEMPLE.

The Respondent is to pay to the Applicant the sum of $65,639.06 within three (3) months of the date of these Orders and upon payment the Applicant is to transfer to the Respondent all of his right, title and interest in the property situate at and known as Property G in the State of New South Wales.

The Respondent must within three (3) months of the date of these Orders and contemporaneously with the transfer of the Applicant’s right, title and interest in the property at Property G, do all acts and things necessary and sign all documents and execute all instruments so as to refinance the mortgage secured over the said property into the Respondent’s sole name absolutely and indemnify and keep the Applicant indemnified against all liability relating to the mortgage secured over the said property.

In the event that the Respondent should fail to pay the sum of $65,639.06 to the Applicant within the time specified in Order (1) above, the Applicant and the Respondent must forthwith sign all documents and do all acts and things necessary to sell the property at Property G on the following terms and conditions:

(a) The property is to be listed for sale by private treaty for a period of three (3) months, after which time it is to be sold by public auction.

(b) The listing agent and the auction agent shall be as agreed between the parties but failing agreement as nominated by the President of the Real Estate Institute of New South Wales.

(c) The listing price for the property shall be as agreed between the parties and failing agreement as determined by the listing agent.

(d) The sale price and reserve price if the said property is submitted to auction shall be as agreed between the parties and failing agreement as determined by a valuer agreed by the parties and failing agreement as nominated by the President of the Real Estate Institute of New South Wales.

(e) The solicitor acting on the sale shall be as agreed between the parties and failing agreement as nominated by the President of the Law Society of New South Wales.

(f) The terms of the contract for sale shall be as agreed between the parties and failing agreement as determined by the solicitor acting on the sale of the said property.

(g) The net proceeds of sale after payment of agent’s selling expenses including auction expenses and solicitor’s costs of sale shall be disbursed as follows:

(i) As to any monies outstanding to the mortgagee holding security over the said property;

(ii) As to 40% of the net balance to the Applicant; and

(iii) As to the remaining 60% to the Respondent.

The Applicant is to retain as his own property absolutely to the exclusion of the Respondent:

(a) all bank accounts and other accounts in his name;

(b) his superannuation entitlement in [L] Super;

(d) any motor vehicle registered in his name; and

(e) all furniture, chattels, personal effects, clothing, items of personal use and adornment and any other items of personalty currently in his possession.

The Respondent is to retain as her own property absolutely to the exclusion of the Applicant:

(a) all bank accounts and other accounts in her name;

(b) her superannuation entitlement in [D] Fund;

(d) all furniture, chattels, personal effects, clothing, items of personal use and adornment and any other items of personalty currently in her possession.

The Applicant and the Respondent are each to be responsible for any liabilities incurred in their name including all borrowings, personal loans and credit card facilities and shall indemnify each other and keep each other indemnified against any liability that may occur in respect of any such borrowing, loan or credit card facility.

Each party must sign all documents and execute all deeds and instruments and do all acts and things necessary to give full force and effect to these Orders and in the event that either party refuses or neglects to comply with any provisions of these Orders within fourteen (14) days of having been requested in writing to do so then a Registrar of this Court is appointed under the provisions of section 106A of the Family Law Act to sign all documents and execute all deeds and instruments in the name of that party and do all acts and things necessary to give validity to such document, deed or instrument.

Written submissions in support of any application for costs are to be filed and served within fourteen (14) days of the date of these Orders and written submissions in opposition to any such application are to be filed and served within a further period of fourteen (14) days.

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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