Brum and Mendes and Ors - [2007] FamCA 1412

FAMILY COURT OF AUSTRALIA

BRUM & MENDES AND ORS

[2007] FamCA 1412

FAMILY LAW – PROPERTY SETTLEMENT – Identification of matrimonial property – Contributions
FAMILY LAW – CHILD SUPPORT DEPARTURE – Just and equitable
FAMILY LAW – CHILD SUPPORT SUBSTITUTION ORDER – Just and equitable

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

In the Marriage of Hickey(2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett & Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
McGuiness & Cowie (2002) 29 Fam LR 441

APPLICANT:

Mr Brum

FIRST RESPONDENT:

Ms Mendes

SECOND & THIRD RESPONDENTS:

Mr & Mrs Mendes

FILE NUMBER:

SYF

4705

2005

DATE DELIVERED:

6 December 2007

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATES:

13, 14 & 20 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms J Haughton
SOLICITOR FOR THE APPLICANT:	Stephen W. Bell & Associates
COUNSEL FOR THE RESPONDENT:	Mr R. Maurice
SOLICITOR FOR THE RESPONDENT:	Eleanor Murphy & Co

COUNSEL FOR THE SECOND & THIRD

RESPONDENTS:

Mr J Lloyd

SOLICITOR FOR THE SECOND & THIRD RESPONDENTS:

Pearson Family Lawyers

Orders

The husband sign all documents and do all things necessary to transfer to the wife the whole of his right title and interest in the former matrimonial home being the property situate at and known as R being the whole of Folio Identifier … within sixty days (60) of the date hereof.
At the same time as the husband complies with Order 1 hereof the wife pay to the husband the sum of Seventy Three thousand dollars ($73,000.00) and at the same time the wife will arrange for the husband to be released from any obligation under the mortgage to the Westpac Bank and the husband shall sign all documents required in that regard.
In the event that the wife fails to comply with Order 2, the husband and wife shall forthwith sign all documents and do all things necessary to sell their interest in the property and after payment of agents’ commission, legal costs and any necessary adjustments, to discharge their obligation to the Westpac Bank and to distribute the net proceeds of sale, as to $73,000 to the husband and the remainder, to the wife.
In the event either party neglects or refuses to sign any documents to give effect to these orders within seven (7) of being called upon by the other to do so, the Registrar of this court is authorised to sign any such documents pursuant to s.106A of the Family Law Act 1975.
The husband and wife are otherwise to retain any…

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 Brum and Mendes and Ors

Details

AGLC: Brum and Mendes and Ors [2007] FamCA 1412
Case: [2007] FamCA 1412
Decision Date: 6 December 2007

CaseChat Overview and Summary

This matter concerned an application by the husband and wife, Brum and Mendes, before Judicial Registrar Loughnan. The dispute revolved around the division of property and the variation of child support obligations. The court was required to make orders concerning the former matrimonial home, financial settlements between the parties, and the ongoing child support payments for their two children.

The primary legal issues before the court were the equitable distribution of the former matrimonial home, including the valuation and payment of the husband's interest, and the appropriate adjustment of child support payments. The court also needed to address the mechanism for enforcing its orders, particularly in the event of a party's non-compliance, and to determine the final disposition of other assets and liabilities not specifically addressed in the property settlement.

Judicial Registrar Loughnan ordered that the husband transfer his interest in the former matrimonial home to the wife within sixty days, subject to the wife paying the husband $73,000 and arranging for his release from the mortgage. In the alternative, if the wife failed to comply, the property was to be sold, with the net proceeds distributed to satisfy the $73,000 owed to the husband and the remainder to the wife. The Registrar was authorised to sign documents on behalf of either party if they failed to do so. Other property was to be retained by each party. Child support payable by the husband was varied to $65 per child per week until 31 January 2009, after which child support would be determined under the administrative scheme. The parties' applications and responses were otherwise dismissed, with liberty to restore proceedings within seven days regarding the form of the orders.

Orders

Orders of the court

The husband sign all documents and do all things necessary to transfer to the wife the whole of his right title and interest in the former matrimonial home being the property situate at and known as R being the whole of Folio Identifier … within sixty days (60) of the date hereof.

At the same time as the husband complies with Order 1 hereof the wife pay to the husband the sum of Seventy Three thousand dollars ($73,000.00) and at the same time the wife will arrange for the husband to be released from any obligation under the mortgage to the Westpac Bank and the husband shall sign all documents required in that regard.

In the event that the wife fails to comply with Order 2, the husband and wife shall forthwith sign all documents and do all things necessary to sell their interest in the property and after payment of agents’ commission, legal costs and any necessary adjustments, to discharge their obligation to the Westpac Bank and to distribute the net proceeds of sale, as to $73,000 to the husband and the remainder, to the wife.

In the event either party neglects or refuses to sign any documents to give effect to these orders within seven (7) of being called upon by the other to do so, the Registrar of this court is authorised to sign any such documents pursuant to s.106A of the Family Law Act 1975.

The husband and wife are otherwise to retain any property in their respective name, possession, custody and control including but not exclusively bank accounts, furniture, jewellery, insurance policies, superannuation and motor vehicles.

That the rate of child support payable by the husband pursuant to the Assessment issued by the Child Support Registrar in CSA Case Nos. …1 and …2, the subject of an objection determined on 14 May 2007, be varied as follows:

(a) the husband pay to the wife the sum of $65.00 per child per week for each of the children D born ….10.94 and M born ….04.00 for the period commencing on 13 September 2007 until 31 January 2009; and

(b) thereafter the liabilities of the husband and wife for child support be determined under the terms of the administrative scheme.

The Application and Reply of the husband and the Response of the wife are otherwise dismissed.

The parties are at liberty to restore the proceedings within 7 days from the date of these orders in relation to the form of the orders.

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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