BEST & VIDMA - [2015] FamCA 715

FAMILY COURT OF AUSTRALIA

BEST & VIDMA

[2015] FamCA 715

FAMILY LAW – PROPERTY – Interim distribution – where the husband seeks an interim distribution from the proceeds of sale – where consideration of general principles – where significant factual issues between the parties – where order for modest distribution to both parties made – where characterisation of the payment reserved to trial.

Family Law Act 1975 (Cth) ss 75, 79, 80(1)(h), 90E, 117(2)

Harris & Harris (1993) FLC 92-378
In the Marriage of Poletti [1990] FamCA 79
Stanford v Stanford [2012] HCA 52
Strahan & Strahan [2009] FamCAFC 166
In the Marriage of Wilson (1989) FLC 92-033
In the Marriage of Zschokke [1996] FamCA 79

APPLICANT:

Mr Best

RESPONDENT:

Ms Vidma

FILE NUMBER:

PAC

705

2014

DATE DELIVERED:

31 August 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

6 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

SOLICITOR FOR THE APPLICANT:

McPhee Kelshaw

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

Turner Freeman Lawyers

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT:

That the husband and wife do all things necessary to authorise and direct that from the net proceeds of sale of the property at Suburb B the sum of $100,000 be paid to each of them or as they may otherwise direct in writing and that otherwise the net proceeds of sale be held in an interest bearing controlled monies account in trust for the parties jointly.
That the characterisation of the payment of such monies be reserved to trial.
That the costs of the present application be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Vidma 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 PARRAMATTA

FILE NUMBER: PAC 705 of 2014

Mr Best

Applicant

And

Ms Vidma

Respondent

REASONS FOR JUDGMENT

At the time of this interim hearing the contracts for sale of one of the properties owned by the wife in this matter at C Street, Suburb B, New South Wales have been exchanged. Settlement was imminent.
The husband makes application by way of Application in a Case filed on 24 July 2015 for an interim distribution of part of the proceeds of sale by way of a payment to him of $285,000 from such proceeds.
In support of his application the husband relies upon:
a)his affidavit filed on 24 July 2015,
b)his affidavit filed on 26 February 2015,
c)the two affidavits filed by his solicitor Ann Shrale on 24 July 2015.
The wife opposes the orders sought by the husband in her Response to the Application in a Case filed on 5 August 2015. In support of the orders sought by her the wife relies upon her affidavit filed on 5 August 2015.
The husband filed his application for property settlement orders on 24 March 2015. In summary he…

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 BEST & VIDMA

Details

AGLC: BEST & VIDMA [2015] FamCA 715
Case: [2015] FamCA 715
Decision Date: 31 August 2015

CaseChat Overview and Summary

In the matter of *BEST & VIDMA*, Foster J of the Family Court of Australia considered an application concerning the net proceeds of sale of a property. The dispute involved a husband and wife, and the court was asked to make interim orders regarding the distribution of funds derived from the sale of their property located in Suburb B.

The primary legal issue before the court was how to characterise and distribute the net proceeds of sale of the property pending a final determination of the parties' financial matters. Specifically, the court needed to decide whether to permit a partial distribution of the proceeds and how to manage the remaining funds.

Foster J ordered that from the net proceeds of sale of the property at Suburb B, the sum of $100,000 was to be paid to each of the husband and wife, or as they directed in writing. The remaining net proceeds were to be held in an interest-bearing controlled monies account in trust for the parties jointly. The court further reserved the characterisation of these payments for the final trial and also reserved the costs of the present application.

Orders

Orders of the court

PENDING FURTHER ORDER, IT IS ORDERED THAT:

That the husband and wife do all things necessary to authorise and direct that from the net proceeds of sale of the property at Suburb B the sum of $100,000 be paid to each of them or as they may otherwise direct in writing and that otherwise the net proceeds of sale be held in an interest bearing controlled monies account in trust for the parties jointly.

That the characterisation of the payment of such monies be reserved to trial.

That the costs of the present application be reserved.

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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