Alvey & Cheetham (No 2)

[2021] FedCFamC1F 358

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Alvey & Cheetham (No 2) [2021] FedCFamC1F 358

File number(s):

MLC 9184 of 2020

Judgment of:

STRUM J

Date of judgment:

20 December 2021

Catchwords:

FAMILY LAW – UNDEFENDED HEARING – PROPERTY – Settlement – Addbacks – Exception not the rule –Where an addback is sought due to a discrepancy in the sale price of the business disclosed to the wife by the husband and the actual sale price – Where such an addback is allowed.

Legislation:

Family Law Act 1975 (Cth) ss 90SF, 90SM, 90ST, 117

Cases cited:

AJO & GRO [2005] FamCAFC 104; (2005) GLC 93-218

C & C [1998] FamCA 143

Penfold v Penfold (1980) 144 CLR 311; (1980) 5 Fam LR 579; (1980) FLC 90-800; [1980] HCA 4.

Prantage & Prantage [2014] FamCA 850

Trevi & Trevi [2018] FamCAFC 173

Division:

Division 1 First Instance

Number of paragraphs:

58

Date of hearing:

20 December 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Lethlean

Solicitor for the Applicant:

Aspire Lawyers

Advocate for the Respondent:

In person

Solicitor for the Respondent:

None

ORDERS

MLC 9184 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ALVEY

Applicant

AND:

MR CHEETHAM

Respondent

ORDER MADE BY:	STRUM J
DATE OF ORDER:	20 DECEMBER 2021

THE COURT ORDERS THAT:

1.Within 60 days of the date of the orders the Applicant pay to the Respondent the sum of $176,000 (“the payment”), less the sum of $40,000 payable by him to her pursuant to paragraph 26.

2.Contemporaneously with the payment:

(a)The Respondent do all such acts and things and sign all such documents as may be required to transfer to the Applicant at the expense of the Applicant all of his right, title and interest in the real property situate at and known as E Street, Suburb J in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … ("the Suburb J property") (“the transfer”).

(b)The Applicant do all such things to refinance and discharge the mortgage registered No. …9C to H Bank ("the mortgage").

3.That pending the transfer:

(a)The Applicant have the sole right to occupy the Suburb J property and that during such right of occupation the Applicant pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Suburb J property as they fall due;

(b)The parties hold their respective interest/s in the Suburb J property upon trust pursuant to these Orders; and

(c)That neither party encumber the Suburb J property except without the consent in writing of the other party, save for the Applicant to comply with order 1 herein.

4.That in the event the payment has not been made by the date, the Applicant have carriage of the sale and the parties do all things and sign all documents necessary to sell altogether out of Court ("the sale") the real property situate at and known…