Busoni and Busoni and Anor - [2018] FamCA 132

FAMILY COURT OF AUSTRALIA

BUSONI & BUSONI AND ANOR

[2018] FamCA 132

FAMILY LAW – INTERIM PROPERTY – Where the wife seeks orders as to interim property distribution, sale of the former matrimonial home, sole occupation and costs – Where the husband has had exclusive occupation of the former matrimonial home since separation in 2015 – Where the wife has accounted for monies she has had and expended since separation for herself and the child – Where the husband has made limited financial contributions to the care of the child – Where the husband has made no attempt to rectify property issues lowering the value of the former matrimonial home – Where neither party has the financial capacity to rectify defects with the property or retain the property – Where the wife asserts financial difficulty – Orders made for the former matrimonial home to be sold and the wife to have sole occupation for the purpose of sale – Orders made for interim property payments to be made to each party from the proceeds of sale.

Family Law Act 1975 (Cth) ss 75(2), 79

Harris & Harris (1993) FLC 92-378
Moroni & Moroni [2014] FamCA 664
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Busoni

FIRST RESPONDENT:

Mr Busoni

SECOND RESPONDENT:

D Pty Ltd

FILE NUMBER:

PAC

4490

2014

DATE DELIVERED:

2 March 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19 February 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

SOLICITOR FOR THE FIRST RESPONDENT:

Penhall & Co Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Penhall & Co Lawyers

Orders

That within 14 days from this date the husband vacate the property at B Street, Suburb C being the land comprised in Folio Identifier … and that thereafter the wife have sole use and occupation of the said property and the husband shall thereafter remain away from the said property.
That the husband is restrained on vacating the property from removing any items of furnishings or contents from the home save for his clothing and personal effects including any firearms without the written consent of the wife such writing to include SMS or email communication.
That the wife is hereby appointed trustee for sale of the property at B Street, Suburb C being the land comprised in Folio Identifier … at the best price reasonably obtainable and for such purpose the said property shall vest in her as trustee for sale.
That for the purposes of sale:
(a)the wife shall appoint the selling agent and accept the reasonable recommendations of such agent as to the mode of sale and the price at which the property shall be offered for sale;
(b)the wife shall appoint an accredited specialist property law solicitor to have the conduct of the sale;
(c)the wife is hereby authorised to sign all necessary documents on behalf of the husband to give effect to these orders for sale;
(d)the wife shall authorise and direct the selling agent and solicitor…

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: [2018] FamCA 132
Decision Date: 2 March 2018

CaseChat Overview and Summary

The parties to this proceeding were a husband and wife, referred to as the husband and the wife. The dispute concerned the matrimonial home located at B Street, Suburb C, and its contents. The matter came before Foster J.

The court was required to determine the terms of occupation of the matrimonial home and the disposition of its contents, as well as the process for the sale of the property and the distribution of the proceeds. Specifically, the court had to decide whether the husband should vacate the property, whether he should be restrained from removing furnishings, and how the sale of the property should be conducted, including the appointment of agents and solicitors, and the division of the sale proceeds.

Foster J ordered that the husband vacate the property within 14 days and thereafter have no further access to it, with the wife to have sole use and occupation. The husband was restrained from removing any furnishings or contents from the home, save for his clothing and personal effects, without the wife's written consent. The wife was appointed trustee for sale of the property, with authority to appoint the selling agent and solicitor, and to sign necessary documents on behalf of the husband. The proceeds of sale were to be applied first to sale expenses and legal fees, then to adjustments, followed by payments of $200,000 to the husband (from which any outstanding costs and interest owed by him to the wife would be deducted) and $200,000 to the wife. Any remaining balance was to be paid into a controlled monies account held by the wife's solicitor on trust for the parties.

Orders

Orders of the court

That within 14 days from this date the husband vacate the property at B Street, Suburb C being the land comprised in Folio Identifier … and that thereafter the wife have sole use and occupation of the said property and the husband shall thereafter remain away from the said property.

That the husband is restrained on vacating the property from removing any items of furnishings or contents from the home save for his clothing and personal effects including any firearms without the written consent of the wife such writing to include SMS or email communication.

That the wife is hereby appointed trustee for sale of the property at B Street, Suburb C being the land comprised in Folio Identifier … at the best price reasonably obtainable and for such purpose the said property shall vest in her as trustee for sale.

That for the purposes of sale:

(a) the wife shall appoint the selling agent and accept the reasonable recommendations of such agent as to the mode of sale and the price at which the property shall be offered for sale;

(b) the wife shall appoint an accredited specialist property law solicitor to have the conduct of the sale;

(c) the wife is hereby authorised to sign all necessary documents on behalf of the husband to give effect to these orders for sale;

(d) the wife shall authorise and direct the selling agent and solicitor with the carriage of the sale to provide to the husband or his solicitors such information as may be reasonably requested as to the progress of the sale; and

(e) the wife shall on sale pay the proceeds of sale as follows:

(i) in payment of agents’ commissions and expenses and costs incurred in the sale;

(ii) in payment of legal fees on sale;

(iii) in payment of any adjustments pursuant to the contract for sale,

(iv) in payment of the sum of $200,000.00 to the husband from which shall be deducted and paid to the wife any outstanding costs and interest accrued thereon till payment;

(v) in payment of the sum of $200,000.00 to the wife; and

(vi) in payment of the balance then remaining to a controlled monies interest bearing account held by the solicitor for the wife Matthews Folbigg Pty Ltd on trust for the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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