Bogdanov and Pryor (No 4) - [2013] FamCA 1084

FAMILY COURT OF AUSTRALIA

BOGDANOV & PRYOR (NO 4)

[2013] FamCA 1084

FAMILY LAW – PROPERTY – Where the wife seeks an extension of time to a partial property settlement order – S 80(1) Family Law Act 1975 (Cth) – Fahmi & Fahmi (1995) 19 FamLR 517 – Watson & Watson [2013] FamCAFC 25 – Where the wife’s evidence had misled the court - Where the wife’s financial circumstances had changed – Dollar for dollar order – Where the wife claimed the existence of an equitable charge over an asset that was subject to the order – A charge of that nature cannot defeat a legal order of the court – orders suspended.

Family Law Act 1975 (Cth)

Fahmi & Fahmi (1995) 19 FamLR 517
Watson & Watson [2013] FamCAFC 25

APPLICANT:

Ms Bogdanov

RESPONDENT:

Mr Pryor

FILE NUMBER:

BRC

9953

2012

DATE DELIVERED:

13 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

15 and 25 November 2013 and 2 and 7 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

North SC on 15 November 2013
Mr Jones on 25 November 2013
Mr Jones on 2 December 2013
Mr Jones on 7 December 2013

SOLICITOR FOR THE APPLICANT:

Jones Mitchell Lawyers

COUNSEL FOR THE RESPONDENT:

Hackett on 15 November 2013
Hackett on 25 November 2013
Hackett on 2 December 2013
Mr Hirst on 7 December 2013

SOLICITOR FOR THE RESPONDENT:

Hirst & Co Family Lawyers

Orders

It is ordered that:

Pursuant to section 80(1) of the Family Law Act 1975 (Cth), Order (1) of the Orders of the Honourable Justice Tree made 11 October 2013 be varied so as to allow the applicant wife until 4.00pm 24 March 2014 to pay the respondent husband the sum of $135,000 provided that, in order to pay that sum to the husband, the applicant wife hereby does forthwith:
(a)       cause the four trading accounts held by her with F Pty Ltd being accounts numbered …, …, … and … to be closed and/or sold and provide evidence of same to the husband’s solicitors as soon as possible thereafter;
(b)       cause the proceeds of sale referred to in (1)(a) hereof to be paid to the husband’s solicitors’ trust account (being NAB account BSB … account number … in the name of G Trust);
(c)       cause $10,000 of the monies held in the ANZ account number … to be paid to the husband’s solicitors’ trust account (being NAB account BSB … account number … in the name of G Trust);
(d)       deliver up the husband the British sports car registration number “…” on the basis that he be appointed trustee for sale and the net sale proceeds be paid to the husband’s solicitors’ trust account (being NAB account BSB … account number … in the name of G Trust);
Should the net proceeds from the sale of the vehicle referred to in Order (1)(d) herein be in excess of what is required to meet Order 1 of the order…

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.

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Details

Case: [2013] FamCA 1084
Decision Date: 13 December 2013

CaseChat Overview and Summary

In *Bogdanov and Pryor (No 4)*, Bell J of the Family Court of Australia considered an application by the wife for an extension of time to comply with a partial property settlement order made on 11 October 2013. The dispute arose from the wife's failure to meet the payment obligations stipulated in the original order, which involved a sum of $135,000 payable to the husband. The wife's application was complicated by allegations that her evidence had misled the court and a subsequent change in her financial circumstances.

The primary legal issues before the court were whether to grant the wife an extension of time to satisfy the property settlement order and whether to vary the existing orders to facilitate payment. The court also had to consider the wife's claim of an equitable charge over an asset that was subject to the original order, and the impact of such a claim on the enforceability of the court's legal orders. The court was guided by principles relating to the variation of property settlement orders under section 80(1) of the *Family Law Act 1975* (Cth), and relevant case law including *Fahmi & Fahmi* and *Watson & Watson*.

Bell J reasoned that an equitable charge, if it existed, could not defeat a legal order of the court. The court ultimately varied the original orders to provide the wife with a new deadline of 24 March 2014 to pay the $135,000 to the husband. This variation was contingent on the wife taking specific steps to realise funds, including closing or selling four trading accounts, paying a portion of funds from another account, and delivering a specific motor vehicle to the husband for sale. The proceeds from these actions were to be applied towards the husband's entitlement. The court also made provision for any residual proceeds from the vehicle sale to be used for other outstanding orders, and stipulated that if these residual proceeds were depleted before a certain date, then certain further orders would be suspended until 27 January 2014.

Orders

Orders of the court

It is ordered that:

Pursuant to section 80(1) of the Family Law Act 1975 (Cth), Order (1) of the Orders of the Honourable Justice Tree made 11 October 2013 be varied so as to allow the applicant wife until 4.00pm 24 March 2014 to pay the respondent husband the sum of $135,000 provided that, in order to pay that sum to the husband, the applicant wife hereby does forthwith:

(a) cause the four trading accounts held by her with F Pty Ltd being accounts numbered …, …, … and … to be closed and/or sold and provide evidence of same to the husband’s solicitors as soon as possible thereafter;

(b) cause the proceeds of sale referred to in (1)(a) hereof to be paid to the husband’s solicitors’ trust account (being NAB account BSB … account number … in the name of G Trust);

(c) cause $10,000 of the monies held in the ANZ account number … to be paid to the husband’s solicitors’ trust account (being NAB account BSB … account number … in the name of G Trust);

(d) deliver up the husband the British sports car registration number “…” on the basis that he be appointed trustee for sale and the net sale proceeds be paid to the husband’s solicitors’ trust account (being NAB account BSB … account number … in the name of G Trust);

Should the net proceeds from the sale of the vehicle referred to in Order (1)(d) herein be in excess of what is required to meet Order 1 of the order of Justice Tree (following first the use of the funds generated from orders (1)(a), (b) and (c) to meet Order (1) of Justice Tree), then the residual amount from the sale of the vehicle be placed in Jones Mitchell Lawyers’ trust account to be used to meet Orders 2 – 5 of the Order of the Honourable Justice Tree made 11 October 2013.

If it is the case that there are residual proceeds from the sale of the vehicle placed in Jones Mitchell Lawyers’ trust account pursuant to Order (2) herein, and if it is the case that the said residual proceeds are depleted before 27 January 2013, then, pursuant to section 80(1) of the Family Law Act 1975 (Cth), Orders (2) – (5) of the Order of the Honourable Justice Tree made 11 October 2013 be suspended until 27 January 2014.

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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