Bailey and Bailey (No 2) - [2018] FamCA 632

FAMILY COURT OF AUSTRALIA

BAILEY & BAILEY (NO. 2)

[2018] FamCA 632

FAMILY LAW – PROPERTY – Application by wife seeking a variation of a property order – Whether variation was of a substantive, consequential or mechanical order – Question of whether the Court has the power to grant a variation of such an order – Provision for sale of home if election not made by wife – Orders made granting variation of property order.

Family Law Act 1975 (Cth)

Bebbington & Bebbington [2017] FamCAFC 31

APPLICANT:

Mr Bailey

RESPONDENT:

Ms Bailey

FILE NUMBER:

HBC

958

2016

DATE DELIVERED:

19 July 2018

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

19 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr W Ayliffe SC

SOLICITOR FOR THE APPLICANT:

Blissenden Lawyers

COUNSEL FOR THE RESPONDENT:

Mr M Trezise

SOLICITOR FOR THE RESPONDENT:

Dobson Mitchell Allport

Orders

In relation to the costs applications filed on 5 June 2018 and the subsequent costs applications in a case in reply the Court amends the Chambers order made 5 July 2018 and provide:-
(a)the respondent wife shall file and serve any response to the applicant husband’s applications in a case and any affidavit in support of that response by 2 August 2018;
(b)on or before 16 August 2018 the applicant husband shall file and serve any response to the respondent wife’s material and any affidavit in support of that response together with written submissions in support of the costs applications;
(c)on or before 30 August 2018 the respondent wife may file and serve any written submissions in responses; and
(d)on or before 7 September 2018 the applicant husband shall file and serve any brief written submissions in reply.
In relation to the application in a case filed 11 July 2018 the applicant husband shall deliver to the respondent wife’s legal practitioners, within seven (7) days of the date of this order, the signed Transfer held by the husband’s legal practitioner for the property situate at M Street Suburb T in Tasmania.
The Transfer will be held by the respondent wife’s legal practitioners upon trust and in escrow pending compliance with the orders of 9 May 2018 which are extended for twenty eight (28) days from the date of this order.
Upon handing over that Transfer the solicitors for the respondent wife will collect a bank cheque in favour of the applicant husband or his nominee in the sum of $19,491 and on the day of settlement shall cause that bank cheque be delivered to the offices of the applicant husband’s solicitor.
The operation of this order is stayed until 4.00pm Thursday 26 July 2018.

IT IS NOTED

If a Notice of Grounds of Appeal is lodged and the applicant husband seeks a further stay of these orders he should file and serve on or before 4.00pm Tuesday 12 July 2018 an application in a case together with any affidavit in support which is to be listed before this Court at Launceston…

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 Bailey and Bailey (No 2)

Details

AGLC: Bailey and Bailey (No 2) [2018] FamCA 632
Case: [2018] FamCA 632
Decision Date: 19 July 2018

CaseChat Overview and Summary

This matter came before Benjamin J concerning applications relating to costs and the transfer of property. The applicant husband and respondent wife were engaged in proceedings, and the court was required to make orders regarding the filing of submissions and affidavits in support of costs applications, as well as the delivery of a property transfer document.

The primary legal issues before the court were the procedural steps required for the parties to present their arguments and evidence concerning costs, and the mechanism for the transfer of a specific property. This included determining the timelines for the exchange of submissions and affidavits, and the conditions under which a property transfer would be executed and held.

Benjamin J amended a previous Chambers order to establish a clear timetable for the parties to file and serve their respective responses and submissions concerning the costs applications. The court also ordered the applicant husband to deliver a signed Transfer for the property at M Street, Suburb T, Tasmania, to the respondent wife's legal practitioners within seven days. This Transfer was to be held in escrow pending compliance with prior orders, which were extended by twenty-eight days. Upon the delivery of the Transfer, the respondent wife's solicitors were to arrange for a bank cheque for $19,491, payable to the applicant husband, to be delivered to the husband's solicitors on the day of settlement. The operation of these orders was stayed until 4:00 pm on Thursday, 26 July 2018.

Orders

Orders of the court

In relation to the costs applications filed on 5 June 2018 and the subsequent costs applications in a case in reply the Court amends the Chambers order made 5 July 2018 and provide:-

(a) the respondent wife shall file and serve any response to the applicant husband’s applications in a case and any affidavit in support of that response by 2 August 2018;

(b) on or before 16 August 2018 the applicant husband shall file and serve any response to the respondent wife’s material and any affidavit in support of that response together with written submissions in support of the costs applications;

(d) on or before 7 September 2018 the applicant husband shall file and serve any brief written submissions in reply.

In relation to the application in a case filed 11 July 2018 the applicant husband shall deliver to the respondent wife’s legal practitioners, within seven (7) days of the date of this order, the signed Transfer held by the husband’s legal practitioner for the property situate at M Street Suburb T in Tasmania.

The Transfer will be held by the respondent wife’s legal practitioners upon trust and in escrow pending compliance with the orders of 9 May 2018 which are extended for twenty eight (28) days from the date of this order.

Upon handing over that Transfer the solicitors for the respondent wife will collect a bank cheque in favour of the applicant husband or his nominee in the sum of $19,491 and on the day of settlement shall cause that bank cheque be delivered to the offices of the applicant husband’s solicitor.

The operation of this order is stayed until 4.00pm Thursday 26 July 2018.

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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