Booth and Booth - [2013] FamCA 1063

FAMILY COURT OF AUSTRALIA

BOOTH & BOOTH

[2013] FamCA 1063

FAMILY LAW – PROPERTY – Application by husband to have orders altered pursuant to s 79A of the Family Law Act 1975 (Cth) – Application successful – proceedings adjourned for a period of ten years – procedural orders

Family Law Act 1975 (Cth) s 79A

La Rocca v La Rocca 1991 FLC 92-222

Cawthorn v Cawthorn (1998) FLC 92-805
Carrington v Carrington(No.2) [2010] FamCA 982

APPLICANT:

Mr Booth

RESPONDENT:

Ms Booth

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

AYC

468

2010

DATE DELIVERED:

16 December 2013

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

16 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

Pursuant to s 79A(1)(a) the property orders made 22 February 2011 be set aside.
Pursuant to s 79A these proceedings be adjourned for ten (10) years from the date of today’s date or such longer or shorter period as is determined by the Court.
Each party be given leave to make application to the Court for interim or final orders in relation to that ten (10) year period set out in order 2 above.

IT IS DIRECTED

Both parties shall, within fourteen (14) days, provide full details of the husband’s proposed occupation of the property for sale of petrol and for sale of carpets and for operation of his business and request of G Pty Ltd whether that will in any way delay or adversely impact upon the mediation work being carried out on the site.

IT IS FURTHER ORDERED

In the event that G Pty Ltd seriously objects to the proposals suggested by the husband under evidence in this court today, leave be given to the parties to request for a direction appointing the wife as receiver to enter into the contract suggested by G Pty Ltd of $50,000 per year and the remediation work.
In the event that the husband remains in occupation of the property, by way of interim property order, the husband shall pay to the wife half the difference of the rent that G Pty Ltd offered and the annual costs of operating the site including ordinary repayments of principle and interest on the mortgage, council rates and insurance.

IT IS FURTHER DIRECTED

A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Booth v Booth 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 HOBART

FILE NUMBER: AYC 468 of 2010

Mr Booth

Applicant

And

Ms Booth

Respondent

REASONS FOR JUDGMENT

There is an application before me to set aside orders made 21 February 2011 in respect of property. These orders were made by Federal Magistrate Henderson, as she then was, at the request…

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 Booth and Booth

Details

AGLC: Booth and Booth [2013] FamCA 1063
Case: [2013] FamCA 1063
Decision Date: 16 December 2013

CaseChat Overview and Summary

In the matter of *Booth and Booth*, Benjamin J considered an application to set aside previous property orders made on 22 February 2011. The proceedings involved a dispute between a husband and wife concerning their property.

The court was required to determine whether to set aside the existing property orders and, if so, what new orders should be made. Further issues included the husband's proposed occupation of a property for business purposes, the potential impact on mediation work, and the wife's potential role as receiver in relation to a contract and remediation work. The court also had to consider interim property orders if the husband remained in occupation.

Benjamin J ordered that the property orders made on 22 February 2011 be set aside pursuant to s 79A(1)(a) of the relevant Act. The proceedings were adjourned for ten years, with liberty for either party to apply for interim or final orders within that period. Directions were given for the husband to provide details of his proposed business operations and to ascertain any adverse impact on mediation. The court also made provision for the wife to be appointed receiver in certain circumstances and stipulated interim financial arrangements should the husband remain in occupation of the property.

Orders

Orders of the court

Pursuant to s 79A(1)(a) the property orders made 22 February 2011 be set aside.

Pursuant to s 79A these proceedings be adjourned for ten (10) years from the date of today’s date or such longer or shorter period as is determined by the Court.

Each party be given leave to make application to the Court for interim or final orders in relation to that ten (10) year period set out in order 2 above.

IT IS DIRECTED

Both parties shall, within fourteen (14) days, provide full details of the husband’s proposed occupation of the property for sale of petrol and for sale of carpets and for operation of his business and request of G Pty Ltd whether that will in any way delay or adversely impact upon the mediation work being carried out on the site.

IT IS FURTHER ORDERED

In the event that G Pty Ltd seriously objects to the proposals suggested by the husband under evidence in this court today, leave be given to the parties to request for a direction appointing the wife as receiver to enter into the contract suggested by G Pty Ltd of $50,000 per year and the remediation work.

In the event that the husband remains in occupation of the property, by way of interim property order, the husband shall pay to the wife half the difference of the rent that G Pty Ltd offered and the annual costs of operating the site including ordinary repayments of principle and interest on the mortgage, council rates and insurance.

IT IS FURTHER DIRECTED

A copy of the reasons for these orders be taken out and placed on the Court file.

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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