Archer and Archer (No. 2) - [2012] FamCA 357

FAMILY COURT OF AUSTRALIA

ARCHER & ARCHER (NO. 2)

[2012] FamCA 357

FAMILY LAW – PROPERTY - Interim property orders – Adjournment of s 79 final hearing

Family Law Act 1975 (Cth)

APPLICANT:

Ms Archer

RESPONDENT:

Mr Archer

FILE NUMBER:

MLC

3773

2011

DATE DELIVERED:

23 April 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

23 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Portelli

SOLICITOR FOR THE APPLICANT:

Wainwright Ryan Eid Lawyers

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

THAT as an interim settlement of property, and inclusive of the monies ordered to be paid to the wife pursuant to paragraph 2 of my earlier orders dated 28 March 2012 the wife’s solicitors are now empowered to pay to the wife the whole of the proceeds of sale of the former matrimonial home situate at … S Street, Suburb C in the State of Victoria, and all interest accrued thereon.
THAT a sealed copy of this Order and the extempore reasons for judgment delivered this day and the transcript of evidence of the parties’ daughter Ms M be forthwith served upon the husband at his Lebanon address by both registered post and email.
THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.
THAT the evidence as to service given by the parties’ daughter, Ms M be transcribed, placed upon the Court file and made available to the parties.
THAT the wife’s costs of and incidental to the hearing this day, inclusive of Counsel’s fees and the attendance of solicitors on her behalf are fixed in the sum of $1,400 and the question of payment thereof be listed to the adjourned defended hearing date.
THAT all extant applications be otherwise adjourned for further case management or direction before Young J and to be listed at 10.00 a.m. on Monday 17 September 2012.
THAT the wife retain sole ownership and possession of the two (2) motor vehicles and all other furniture, chattels and personal effects as were identified in paragraph 22 of her affidavit filed 21 March 2012.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Archer & Archer (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3773 of2011

Ms Archer

Applicant

And

Mr Archer

Respondent

REASONS FOR JUDGMENT

The matter of Archer returns to Court this day and Ms Portelli of Counsel represents the wife, who is in Court, along with her two daughters. Counsel’s instructing solicitor is also present. The matter was last before me on 28 March 2012 and on that occasion I ordered an interim property sum of $100,000 to be…

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 Archer and Archer (No. 2)

Details

AGLC: Archer and Archer (No. 2) [2012] FamCA 357
Case: [2012] FamCA 357
Decision Date: 23 April 2012

CaseChat Overview and Summary

In the matter of *Archer and Archer (No. 2)*, Young J of the Family Court of Australia made orders concerning the interim settlement of property between the parties. The dispute involved the distribution of assets, specifically the proceeds of sale of the former matrimonial home and other chattels.

The court was required to determine the interim distribution of property, including the allocation of the proceeds from the sale of the former matrimonial home and the wife's retention of certain motor vehicles and personal effects. The court also addressed the service of its orders and reasons for judgment upon the husband, who was residing in Lebanon, and the wife's costs of the hearing.

Young J ordered that the wife's solicitors be empowered to pay the whole of the proceeds of sale of the former matrimonial home, and all accrued interest, to the wife as an interim settlement. The court further ordered that the wife retain sole ownership and possession of two motor vehicles and all other furniture, chattels, and personal effects as identified in her affidavit. Costs were fixed at $1,400 for the wife, with the question of payment to be addressed at a later hearing. All extant applications were adjourned for further case management.

Orders

Orders of the court

IT IS ORDERED:

THAT as an interim settlement of property, and inclusive of the monies ordered to be paid to the wife pursuant to paragraph 2 of my earlier orders dated 28 March 2012 the wife’s solicitors are now empowered to pay to the wife the whole of the proceeds of sale of the former matrimonial home situate at … S Street, Suburb C in the State of Victoria, and all interest accrued thereon.

THAT a sealed copy of this Order and the extempore reasons for judgment delivered this day and the transcript of evidence of the parties’ daughter Ms M be forthwith served upon the husband at his Lebanon address by both registered post and email.

THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

THAT the evidence as to service given by the parties’ daughter, Ms M be transcribed, placed upon the Court file and made available to the parties.

THAT the wife’s costs of and incidental to the hearing this day, inclusive of Counsel’s fees and the attendance of solicitors on her behalf are fixed in the sum of $1,400 and the question of payment thereof be listed to the adjourned defended hearing date.

THAT all extant applications be otherwise adjourned for further case management or direction before Young J and to be listed at 10.00 a.m. on Monday 17 September 2012.

THAT the wife retain sole ownership and possession of the two (2) motor vehicles and all other furniture, chattels and personal effects as were identified in paragraph 22 of her affidavit filed 21 March 2012.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

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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