BEBBINGTON & BEBBINGTON - [2016] FCCA 2513

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEBBINGTON & BEBBINGTON

[2016] FCCA 2513

Catchwords:
FAMILY LAW – Enforcement – Application by the wife to seek machinery provision orders to enable compliance with intent of final property orders – orders require husband to transfer his interest in former matrimonial home to wife for payment of monies and refinancing by wife of mortgage over property – husband seeks application dismissed on basis wife not being ready willing and able to settle on nominated date – husband failed to return executed Transfer in time to enable settlement to occur – husband failed to act reasonably when wife sought to settle on following business day – machinery orders made to enable transfer of husband’s interest to wife in accordance with intent of property orders

Legislation:

Family Law Act 1975 (Cth)

Family Court Rules 2004 (Cth)
Evidence Act 1995 (Cth)
Acts Interpretation Act 1901 (Cth)
Real Property Act 1900 (NSW)

Cases cited:
Baghti & Baghti [2015] FamCAFC 71
Pera & Pera [2008] FamCAFC 87
Slapp & Slapp (1989) FLC 92-022
Taylor v. Taylor(1979) FLC 90-674; 5 Fam. L.R. 289
Cranage & Cranage (1981) FLC 91-039
Taylor and Taylor (1977) FLC 90-226
King and King (1977) FLC 90-299
Kaljo and Kaljo (1978) FLC 90-445
Branchflower and Branchflower (1980) FLC 90-857
McDonald and McDonald (1976) FLC 90-047
Molier and Van Wyk (1980) FLC 90-911
Ravasini & Ravasini (1983) FLC 93-312
Ebner & Pappas & Anor [2014] FamCAFC 230
Subramaniam v Public Prosecutor [1856] 1 WLR 965
Samad v District Court of New South Wales (2000) 50 NSWLR 270; [2000] NSWCA 344
Bing & Bing [2010] FamCA 241
In the Marriage of Cawthorne [1998] FamCA 37

Applicant:

MS BEBBINGTON

Respondent:

MR BEBBINGTON

File Number:

BRC 10953 of 2015

Judgment of:

Judge Purdon-Sully

Hearing date:

12 May 2016

Date of Last Submission:

12 May 2016

Delivered at:

Brisbane

Delivered on:

29 September 2016

REPRESENTATION

Solicitors for the Applicant:

Wiltshire Lawyers

Counsel for the Respondent:

Mr Shoebridge

Solicitors for the Respondent:

Browns Lawyers

ORDERS

That the Wife or her agent be at liberty to do all things necessary (including but not limited to registering the stamped Transfer signed by the parties) to effect the transfer of the Husband’s interest in the property situate at the Northern New South Wales property, and more particularly described as Lot 1 in Strata Plan (omitted) (the “Northern New South Wales property”) to the Wife on a date nominated by her but on a date no later than twenty-eight (28) days of the date of this Order.
That the Wife or her agent shall notify the Husband, care of Browns Lawyers of the settlement date to effect the transfer of the Northern New South Wales Property and that for the purpose of the Orders dated 2 December 2015, the date nominated by the Wife to effect the transfer of the Northern New South Wales Property as provided for in Order 1 hereof shall be deemed “The Settlement Date”.
That the Husband do all things and…

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 BEBBINGTON & BEBBINGTON

Details

AGLC: Bebbington and Bebbington [2016] FCCA 2513
Case: [2016] FCCA 2513
Decision Date: 29 September 2016

CaseChat Overview and Summary

In the matter of Bebbington & Bebbington, Purdon-Sully J of the Family Court of Australia made orders concerning the transfer of a property. The dispute involved the Husband and Wife regarding the disposition of their interests in a property located in Northern New South Wales.

The court was required to determine the terms and conditions under which the Husband's interest in the Northern New South Wales property would be transferred to the Wife. This included specifying the timeframe for the transfer, the obligations of each party in facilitating the transfer, and the consequences of non-compliance. The court also considered and dismissed orders sought by the Husband in his Response filed on 14 March 2016.

Purdon-Sully J ordered that the Wife, or her agent, was at liberty to take all necessary steps to effect the transfer of the Husband's interest in the Northern New South Wales property to her, within twenty-eight days of the order. The Wife was to notify the Husband of the settlement date, which would be deemed "The Settlement Date" for the purposes of prior orders. The Husband was directed to sign all necessary documents for the transfer within three business days of a request, and to vacate the property at least two business days prior to the nominated settlement date. Crucially, pursuant to s 106A of the *Family Law Act 1975* (Cth), a Registrar or Deputy Registrar of the Family Court of Australia was appointed to sign on behalf of the Husband should he fail to do so within the specified timeframe. The court also ordered that written submissions regarding costs be filed within fourteen days, with a response due within a further fourteen days.

Orders

Orders of the court

That the Wife or her agent be at liberty to do all things necessary (including but not limited to registering the stamped Transfer signed by the parties) to effect the transfer of the Husband’s interest in the property situate at the Northern New South Wales property, and more particularly described as Lot 1 in Strata Plan (omitted) (the “Northern New South Wales property”) to the Wife on a date nominated by her but on a date no later than twenty-eight (28) days of the date of this Order.

That the Wife or her agent shall notify the Husband, care of Browns Lawyers of the settlement date to effect the transfer of the Northern New South Wales Property and that for the purpose of the Orders dated 2 December 2015, the date nominated by the Wife to effect the transfer of the Northern New South Wales Property as provided for in Order 1 hereof shall be deemed “The Settlement Date”.

That the Husband do all things and sign all documents necessary to effect the transfer of his interest in the Northern New South Wales property to the Wife within three (3) business days of a request being made by the wife or her agent to do a thing and/or sign a document.

That the Husband vacate the Northern New South Wales property at least two (2) business days prior to the settlement date nominated by the Wife.

That pursuant to s106A of the Family Law Act 1975 (Cth) should the Husband fail, neglect or refuse to sign any document necessary to give effect to these orders within three (3) days of a request by the Wife to do so, then a Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is appointed to sing on behalf of the Husband.

That the Orders sought in the Response filed by the Husband on 14 March 2016 be dismissed.

That written submissions in support of any application for costs be filed within fourteen (14) days of today’s date with any response to be filed by the other party within a further fourteen (14) days thereafter.

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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