Parties Dispute Appealable Error and Just and Equitable Division of Property
Mullis & Quimby [2023] FedCFamC1A 16 (14 February 2023)
The case involves a couple who cohabitated but never married, with two children, where the husband filed an application for property orders. The primary judge divided the available property 70% to the wife and 30% to the husband, and made default orders for the sale of a property if the wife failed to pay a lump sum to the husband.
Facts:
The case involves a couple who cohabitated from 1991 or 1992 but were never married. They have two children, one of whom is now an adult and the other is 17 years old. The husband filed an Initiating Application in August 2013 seeking parenting orders, which was later amended to seek property orders. The primary judge heard the case over four days in October 2020 and April 2021, and delivered reasons and orders on August 12, 2022.
In his judgment, the primary judge determined that the available property of the parties be divided 70% to the wife and 30% to the husband. He also made default orders stating that the wife must pay a lump sum to the husband to enable a property to be transferred to her. If she failed to do so, the property would be sold, and the wife would be ordered to arrange and meet the costs of rectifications needed for the sale to proceed. These rectifications included removing a shed that overlaps both properties and separating the septic tank system that is joined to both properties.
The appeal focuses on the primary judge's decision to make a default property sale order that required the appellant to receive a lump sum of money from the net proceeds of sale of the relevant property, rather than a percentage of the net proceeds of sale. The appellant argued that this order did not represent a just and equitable division of property as determined by the Court. The grounds of appeal also included a claim that the primary judge failed to give reasons for why the appellant would receive a lump sum of money instead of a percentage of the net proceeds of sale. The appellant contended that the trial judge should have directed that the net proceeds of sale of the property be divided in accordance with the apportionment of the parties' property as determined by the primary judge.
Issue:
The issue in this case is related to the primary judge's decision to make a default property sale order that required the appellant to receive a lump sum of money from the net proceeds of sale of the relevant property, instead of a percentage of the net proceeds of sale. The appellant argued that this order did not represent a just and equitable division of property as determined by the Court.
Applicable law:
Analysis:
An appellate court is required to assess whether there was an appealable error by the primary judge, despite the respondent conceding the appeal. The respondent acknowledged that the preferred course to achieve a just and equitable division of the parties' property was orders for a percentage division from the net proceeds of sale of the subject property, rather than the lump sum payment as determined by the primary judge, particularly in circumstances where there would likely be a substantial delay between the conclusion of evidence and delivery of judgment. The court found that there was an error of law and was empowered to re-exercise jurisdiction. The orders proposed by the parties were deemed appropriate and represented a just and equitable adjustment of the parties' property, pursuant to the Family Law Act 1975 (Cth). Relevant costs certificates were to be issued pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in respect to the costs incurred by each of the parties in respect to the appeal.
Conclusion:
The Full Court allowed the appeal filed on September 8, 2022 and dismissed the cross-appeal filed on September 23, 2022. The orders made on August 12, 2022, by the Federal Circuit and Family Court of Australia were set aside, and new orders were made by consent. The appellant and respondent were granted costs certificates, and there was no order as to costs with respect to the appeal and cross-appeal.
Case: Mullis & Quimby [2023] FedCFamC1A 16
Judgment of: MCCLELLAND DCJ
Counsels:
Counsel for the Appellant: Mr Jackson
Solicitor for the Appellant: Urban Family Lawyers
Counsel for the Respondent: Mr Othen
Solicitor for the Respondent: Willis & Bowring
