FEDERAL CIRCUIT COURT OF AUSTRALIA
ABRESCH & ABRESCH [2019] FCCA 3481
Catchwords:
FAMILY LAW – Property adjustment – assessment of contributions – orders made.
Legislation:
Family Law Act 1975, ss.75, 79
Cases cited:
Trebiano & Trebiano [2018] FamCA 344
Chancellor & McCoy [2016] FamCAFC 256
Russell & Russell [1999] FamCA 1875
Teal & Teal [2010] FamCAFC 120
Kennon & Kennon (1997) FLC 92-757
Keating & Keating [2019] FamCAFC 46
Applicant: MS ABRESCH
Respondent: MR ABRESCH
File Number: PAC 5137 of 2017
Judgment of: Judge Newbrun
Hearing dates: 25 and 26 November 2019
Date of Last Submission: 26 November 2019
Delivered at: Parramatta
Delivered on: 9 December 2019 REPRESENTATION
Counsel for the Applicant: Mr Maddox
Solicitors for the Applicant: Mr Low
Counsel for the Respondent: Mr Blank
Solicitors for the Respondent: Mr Hargreaves ORDERS
1. Within 8 weeks of the date of these orders, the husband pay the wife $446,530 and in exchange the wife shall do all things necessary to transfer her right, title and interest in the property at A Street, Town B, NSW, being folio identifiers … and … (hereafter referred to as ‘the home’) to the husband. Contemporaneously, the husband shall cause the mortgage currently registered over the home to be discharged and refinanced into his name at his expense.
2. If at the expiration of 8 weeks from the date of making these orders, the husband has failed to pay the wife $446,530 and discharge and refinance the mortgage currently registered over the home, then both parties shall cause the sale of the home and the proceeds of sale to be paid in the following manner and priority:-
2.1.Payment of monies owing on any mortgage;
2.2.Payment of outstanding rates, levies and taxes;
2.3.Payment of estate agent’s commission;
2.4.Payment of legal costs on sale;
2.5.Payment of the balance as to:
2.5.1.62.5% to the wife plus a cash payment of $63,285;
2.5.2.The balance to the husband.
3. That for the purpose of the sale of the home, the parties shall comply with the following promises:-
3.1.The home shall, within 4 weeks, be placed on the market for sale by private treaty at a price to be agreed by the parties and, in the absence of agreement than at a price recommended by a valuer nominated by the President for the time being of the Australian Property Institute, which valuer the parties shall appoint for this purpose and the cost of which shall be deemed to be a legal cost on sale.
3.2.The home shall be placed in the hands of at least one reputable real estate agent practising within the property’s area. In the event that the parties do not agree on the agent/s the wife shall nominate three such agents and the husband shall select one of those three.
3.3.The wife covenants to co-operate with the agent so selected including, but not limited to, providing access at such times reasonably requested by the agent and ensuring that the home is in a neat and clean condition…
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- Abresch and Abresch [2019] FCCA 3481
- Case
- [2019] FCCA 3481
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on achieving a final determination of the parties' financial relationship, as contemplated by section 81 of the *Family Law Act 1975* (Cth). The orders reflect an assessment of contributions, leading to a specific financial outcome for each party. The primary legal principle applied was section 79 of the *Family Law Act 1975* (Cth), which empowers the court to make orders for the alteration of property interests.
The orders stipulated that the husband was to pay the wife a sum of $446,530 and assume full ownership of the matrimonial home, including refinancing the existing mortgage. Alternatively, if the husband failed to meet this obligation within eight weeks, the home was to be sold, with proceeds distributed according to a specified priority. The husband was also to become the sole owner of a motor vehicle. The orders further provided for the Registrar of the Court to execute necessary documentation in the event of a party's failure to do so, and granted liberty to apply for further directions regarding implementation.
Orders
Orders of the court
1. Within 8 weeks of the date of these orders, the husband pay the wife $446,530 and in exchange the wife shall do all things necessary to transfer her right, title and interest in the property at A Street, Town B, NSW, being folio identifiers … and … (hereafter referred to as ‘the home’) to the husband. Contemporaneously, the husband shall cause the mortgage currently registered over the home to be discharged and refinanced into his name at his expense.
2. If at the expiration of 8 weeks from the date of making these orders, the husband has failed to pay the wife $446,530 and discharge and refinance the mortgage currently registered over the home, then both parties shall cause the sale of the home and the proceeds of sale to be paid in the following manner and priority:-
2.1. Payment of monies owing on any mortgage;
2.2. Payment of outstanding rates, levies and taxes;
2.3. Payment of estate agent’s commission;
2.4. Payment of legal costs on sale;
2.5. Payment of the balance as to:
2.5.1. 62.5% to the wife plus a cash payment of $63,285;
2.5.2. The balance to the husband.
3. That for the purpose of the sale of the home, the parties shall comply with the following promises:-
3.1. The home shall, within 4 weeks, be placed on the market for sale by private treaty at a price to be agreed by the parties and, in the absence of agreement than at a price recommended by a valuer nominated by the President for the time being of the Australian Property Institute, which valuer the parties shall appoint for this purpose and the cost of which shall be deemed to be a legal cost on sale.
3.2. The home shall be placed in the hands of at least one reputable real estate agent practising within the property’s area. In the event that the parties do not agree on the agent/s the wife shall nominate three such agents and the husband shall select one of those three.
3.3. The wife covenants to co-operate with the agent so selected including, but not limited to, providing access at such times reasonably requested by the agent and ensuring that the home is in a neat and clean condition at the time of inspection by prospective purchasers.
3.4. If a sale is not effected (by exchange of Agreements) within three (3) months having regard to the foregoing criteria, the parties shall cause the home to be sold by public auction through the one selected agent for the best available price selecting such reserve as they agree, and, in the absence of agreement, then at such amount as the selected agent reasonably nominates on the day preceding the auction.
3.5. In the event that the reserve price of the home is not reached, the parties may negotiate with the highest bidder present at the auction or any other interested party in an effort to sell the home at a price not more than 5% below the reserved price of the home.
3.6. If agreements for sale of the home are not exchanged at a price of not more than 5% below the reserve price as aforesaid within 14 days of the auction taking place then the parties must forthwith re-list the home for sale by private treaty with the said listing agent and must in the absence of any mutually agreed price in writing between them sell the home at the highest price offered in writing and received by the said agent within a period of 30 days from the date of the auction, or such later date as they may agree in writing, provided that such price must not be more than 10% below the reserve price for the home.
3.7. In the event that the highest price offered as aforesaid is more than 10% below the reserve price, the parties agrees that the home must be forthwith listed for sale by way of public auction with the said listing agent and the said agent must determine the auction date and the home must be sold to the highest bidder at that auction, and it is further agreed by the parties that either party is at liberty to bid at any such auction and that there will be no reserve price to apply at such auction.
3.8. Low Doherty & Stratford Lawyers shall principally act in connection with the sale but in conjunction with each parties solicitors and their combined reasonable costs shall be included in the expression “legal costs on sale”.
3.9. The parties may agree in writing between themselves to a variation of the foregoing provisions.
4. Within 28 days the husband and wife will take all reasonable steps to enable the husband to collect from the wife the Motor Vehicle N registration number …, and thereafter the husband is declared the sole owner of such vehicle.
5. Pending the sale of the home, the husband be solely responsible for payment of mortgage, outgoings, rates and taxes as and when they fall due.
6. Pursuant to section 81 of the Family Law Act the parties intend these Orders to finally determine all financial relations and issues between them (including any spousal maintenance) and avoid further proceedings between them.
7. Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these Orders.
8. Pursuant to section 79 of the Family Law Act the parties are and are deemed to be the sole owner respectively at law and in equity to the exclusion of the other of all other assets and financial resources within their respective ownership, possession or control, whether vested or contingent.
9. In the event that either party fails, refuses or neglects to execute any document necessary to give effect to these orders, then, under section 106A of the Family Law Act, the Registrar of this Court be appointed to execute the documentation in the name of the defaulting party.
10. Liberty to the parties to apply to the Court on seven days’ notice in relation to the implementation of the above Orders.
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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