Botsis and Botsis - [2016] FamCA 249

FAMILY COURT OF AUSTRALIA

BOTSIS & BOTSIS

[2016] FamCA 249

FAMILY LAW – PROPERTY – Sale of property – interim application by the wife for the sale of property – where the husband has previously failed to service the mortgage on the property in accordance with court orders – where the wife alleges that the husband has drawn down on his superannuation to service the mortgage and seeks to preserve the asset pool – where the husband currently resides in the property – where the husband seeks to retain the property – where the husband deposes that his income will increase in the next year – where the mortgage is currently not in arrears – where the wife has not particularised the final property orders sought by her – interim orders made dismissing the wife’s application for sale of property

Family Law Act 1975 (Cth)

Strahan &Strahan (interim property orders) [2009] FamCAFC 166; (2011) FLC 93-446

APPLICANT:

Ms Botsis

RESPONDENT:

Mr Botsis

FILE NUMBER:

MLC

2266

2015

DATE DELIVERED:

11 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

2 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pandeli

SOLICITOR FOR THE APPLICANT:

Barbayannis Solicitors

THE RESPONDENT:

In person

Orders

That paragraphs 1 to 6 inclusive of the wife’s interim orders sought in her Amended Initiating Application filed 3 September 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Botsis & Botsis 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 MELBOURNE

FILE NUMBER: MLC 2266 of 2015

Ms Botsis

Applicant

And

Mr Botsis

Respondent

REASONS FOR JUDGMENT

Introduction

This matter came before me in the Judicial Duty List upon the application of the wife seeking the sale of a property at B Street, Suburb C (“B Street”). That property is registered in the husband’s sole name.
It is the wife’s case that B Street should be sold in order to preserve the assets of the parties. Although orders have previously been made in this matter for the husband to pay the minimum mortgage repayments in respect of the loan secured against B Street, the wife says that the husband is failing to meet those mortgage repayments and has been drawing down on his superannuation entitlements to meet part of the costs of those repayments.
The husband opposes the sale of B Street. Since separation the husband has lived at B Street and he seeks to retain that property as part of his final property settlement; an order for the sale of the property would defeat that application. Further, whilst the husband concedes that the mortgage payments are in arrears, it was his submission that receipt of anticipated commissions in February 2016 will enable him to service the mortgage debt.

The Parties

The wife is the applicant in the proceedings. She is aged 43 years and is engaged in home…

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 Botsis and Botsis

Details

AGLC: Botsis and Botsis [2016] FamCA 249
Case: [2016] FamCA 249
Decision Date: 11 April 2016

CaseChat Overview and Summary

In the matter of *Botsis and Botsis*, heard before Johns J, the wife sought interim orders concerning property settlement and spousal maintenance. The husband opposed these applications.

The primary legal issues before the court were whether the wife had established a sufficient prima facie case to warrant the granting of interim property orders and interim spousal maintenance, and whether the court should exercise its discretion to make such orders.

Johns J dismissed the wife's interim applications, finding that she had not established a sufficient prima facie case to justify the making of interim property orders. The court also found that the wife had not demonstrated a need for interim spousal maintenance, nor had she established that the husband had the capacity to pay it. Consequently, the court declined to exercise its discretion to make the interim orders sought.

Orders

Orders of the court

That paragraphs 1 to 6 inclusive of the wife’s interim orders sought in her Amended Initiating Application filed 3 September 2015 be dismissed.

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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