Bishop and Bishop - [2009] FMCAfam 957

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BISHOP & BISHOP

[2009] FMCAfam 957

FAMILY LAW – Property – marriage of 24 years – treatment of inheritance –treatment of a joint debt alleged to have been ‘forgiven’ – contributions of the parties initially and during relationship – small adjustment to Husband pursuant to s.75(2) – just and equitable.

Family Law Act 1975 (Cth), Part VIII, ss.75 (2), (2)(a) & (b), 79, 79 (4)(a) – (g)
Property (Relationships) Act 1984 (NSW)

Bilous v Mudaliar (2005) 65 NSWLR 615; [2005] NSWSC 71
Bonnici & Bonnici (1991) 105 FLR 102; (1991) 15 Fam LR 138; (1992) FLC ¶92-272
In the Marriage of Bremner(1994) 18 Fam LR 407; (1995) FLC ¶92-560
C & C (2005) 193 FLR 9; (2005) 33 Fam LR 414; (2005) FLC ¶93-220
Farmer & Bramley(2000) 27 Fam LR 316; (2000) FLC ¶93-060
Ferguson & Ferguson (1978) 34 FLR 342; (1978) 4 Fam LR 312; (1978) FLC ¶90-500
Garrett & Garrett (1984) FLC ¶91-539
Hayne & Hayne (1977) 30 FLR 533; (1977) FLC ¶90-265
In the Marriage of Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143;
L & L [2005] FamCA 335
Lee Steere & Lee Steere(1985) 10 Fam LR 431; (1985) FLC ¶91-626
In the Marriage of Money (1994) 117 FLR 372; (1994) 17 Fam LR 814; (1994) FLC 92-485
Norbis v Norbis (1986) 161 CLR 513
AJO & GRO (2005) 191 FLR 317; (2005) 33 Fam LR 134; (2005) FLC ¶93-218
In the Marriage of Pierce(1998) 24 Fam LR 377; (1998) FLC 92-844
Rogers & Rogers (1980) FLC ¶90-874
Russell & Russell (1999) 154 FLR 171; (1999) 25 Fam LR 629; (1999) FLC ¶92-877
Zyk and Zyk (1995) 128 FLR 28; (1995) 19 Fam LR 797; (1995) FLC ¶92-644

Applicant:

MS BISHOP

Respondent:

MR BISHOP

File Number:

CAC 142 of 2008

Judgment of:

Neville FM

Hearing date:

23 February 2009

Date of Last Submission:

11 June 2009

Delivered at:

Canberra

Delivered on:

18 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr G Brzostowski SC

Solicitors for the Applicant:

Walsh & Blair Lawyers (Wagga Wagga)

Counsel for the Respondent:

Mr I Nash SC

Solicitors for the Respondent:

Gordon Garling Moffitt Lawyers (Property G)

ORDERS

That the Husband pay to the Wife the sum of $13,917.00 within sixty (60) days.
That the Husband pay to the Wife the sum of $290,000.00 within sixty (60) days.
That contemporaneously with Order 2, the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband all of her right, title and interest in the real property situate at and known as Property G, and the Husband refinance the mortgage over the ‘Property G’ property into his sole name and indemnify the Wife in respect of that property.
That in the event that Order 2 is not complied with, the Husband and Wife are to do all things necessary to effect the…

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 Bishop and Bishop

Details

AGLC: Bishop and Bishop [2009] FMCAfam 957
Case: [2009] FMCAfam 957
Decision Date: 18 September 2009

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Bishop and Bishop was heard. The dispute between the husband and wife involved the distribution of assets, specifically financial sums and real property. The court was tasked with determining the financial settlement between the parties, including the division of assets and liabilities, and the method of sale of their jointly owned property.

The legal issues before the court included the calculation of the net family property, the equitable distribution of assets and liabilities, and the sale of jointly owned real property. The court had to decide how to divide the assets and liabilities between the husband and wife and establish a fair method for selling their jointly owned property.

The court considered the contributions of each party to the acquisition of the assets, the needs and future prospects of each party, and the principle of equal division of property. It determined that the husband should pay the wife a specified sum of money and transfer his interest in the jointly owned property to the wife. The court outlined a detailed procedure for the sale of the property, including the appointment of an agent, the method of sale, and the distribution of the sale proceeds. The court appointed the Registrar of the Family Court to execute necessary documents if either party failed to do so within a specified period.

The court's orders provided for the husband to pay the wife a sum of money within a set timeframe and transfer his interest in the jointly owned property. The court set out a procedure for the sale of the property, including the appointment of an agent, the method of sale, and the distribution of the sale proceeds. The court also outlined the consequences if the property was not sold within a specified period and allowed for the variation of the terms and conditions for sale by the parties. The court further directed that the wife retain certain funds and that each party retain their personal property and superannuation. The court also provided for the Registrar of the Family Court to execute necessary documents if either party failed to do so within a specified period.

Orders

Orders of the court

That the Husband pay to the Wife the sum of $13,917.00 within sixty (60) days.

That the Husband pay to the Wife the sum of $290,000.00 within sixty (60) days.

That contemporaneously with Order 2, the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband all of her right, title and interest in the real property situate at and known as Property G, and the Husband refinance the mortgage over the ‘Property G’ property into his sole name and indemnify the Wife in respect of that property.

That in the event that Order 2 is not complied with, the Husband and Wife are to do all things necessary to effect the sale of ‘Property G’ at the market value determined in accordance with Order 5.

That the market value of ‘Property G’ be as agreed between the husband and wife or failing such agreement as determined by a valuer nominated by the President of the Real Estate Institute of the ACT, such determination to be paid for by the Husband.

That the parties will each execute a contract for sale in the form prepared by the solicitors.

That the Husband’s solicitor will have the primary conduct of the sale on behalf of both parties.

That the property is to be placed with an agent as agreed between the parties or in default of agreement, with an agent ("the Agent") nominated by the President of the Real Estate Institute of the ACT.

That neither party may confer on any agent without the consent of the other party, any right to sole or exclusive agency in respect of ‘Property G’ or to any commission.

10.

That the parties will each cooperate in every way with the agent including but not limited to:

(a) Making the keys available to the agent;

(b) Allowing inspection of ‘Property G’ at all reasonable times requested by the agent;

(c) Ensuring that ‘Property G’, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;

(d) Signing all documents requested by an agent in relation to the listing for sale of ‘Property G’ except a contract or agreement for sale which has not been authorised by the parties’ solicitors.

11.

That if ‘Property G’ is not sold within ninety (90) days of the date it was first listed for sale, or if ‘Property G’ is sold and the sale subsequently does not proceed to completion, the Husband and Wife do all things necessary to offer ‘Property G’ immediately for sale by public auction by the Agent, the reserve price being the market value determined in accordance with Order 5.

12.

That in the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of ‘Property G’ at a price which is not more than 10% below the reserve price.

13.

That if ‘Property G’ is not sold at the auction within 21 days thereafter the husband and wife shall meet the market price and sell the ‘Property G’ at the best price then obtainable.

14.

That the Husband and Wife do all things necessary to cause the proceeds of the sale of ‘Property G’ to be distributed as follows:

(a) To pay all costs and expenses of sale including legal costs and disbursements, agent commissions and auction expenses;

(b) To pay the amount required to discharge the mortgage;

(d) The amount owed to the Wife in accordance with Orders 1 and 2; and

(e) To pay the balance to the Husband.

15.

That the time limits and the terms and conditions for sale set by these Orders may be varied by the parties by written agreement.

16.

That the Wife retain the funds held in the trust account known as “[L]”.

17.

That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.

18.

That unless otherwise specified in these Orders each party shall otherwise retain any motor vehicles, chattels, bank accounts, personal property and superannuation in their possession or control.

19.

That pursuant to rule 21.02 of the

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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