Cadwell and Cadwell - [2009] FamCA 881

FAMILY COURT OF AUSTRALIA

CADWELL & CADWELL

[2009] FamCA 881

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Initial contributions

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

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Pierce and Pierce (1999) FLC 92-844

APPLICANT:

Ms Cadwell

RESPONDENT:

Mr Cadwell

FILE NUMBER:

SYC

4268

2008

DATE DELIVERED:

15 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston JR

HEARING DATE:

23 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Rees

SOLICITOR FOR THE APPLICANT:

Clayhills Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Heazlewood

SOLICITOR FOR THE RESPONDENT:

Penhall & Co Laywers

Orders

That paragraphs 9 and 10 of the orders of 10 September 2009 are discharged.
That paragraphs 1 to 8 of the said orders are confirmed as final orders as set out hereunder:-
1.That the wife forthwith and within 3 business days of the date hereof pay to the ANZ Bank account number […]35 all monies held by her, including interest in her account with BankWest except for $60,000.00, $30,000.00 of which shall be paid by her to each party.
2.1That both parties are hereby restrained from taking, withdrawing or transferring any monies out of the following account, other than for the purposes of fulfilling these orders or with the prior written consent of both parties: ANZ Bank account number […]35 (“ANZ Bank account”)
2.2Each party must, within one (1) business day of the date of the making of these orders, notify the ANZ Bank of the terms and the effect of the above order 2.1.
3.In order to give effect to order 1:-
3.1The parties shall sign all auction authorities and pay all monies (if any) required to be paid to the Auctioneer within 7 days of the date hereof.
3.2Either party may on behalf of both parties instruct the Solicitor to prepare a contract to enable the property to be sold in accordance with the Auctioneer’s selling program or requirements.
3.3Both parties shall sign the auction contract within a reasonable time of being requested so to do by the auctioneer.
4.The parties shall jointly instruct Mr John Anthony, solicitor of Newtown to have the carriage of the sale.
4.1The parties should jointly instruct [Mr H] as their agent for the purpose of the sale and jointly negotiate the terms of the agency agreement and a reserve price.
4.2The reserve price is $905,000.00.
4.3The Auction shall proceed on Saturday, […] September 2009, or earlier if agreed.
5.If the property is not sold at auction, a further auction shall be conducted within 2 months of the date of the failed auction and the reserve price for the property shall be 10% less than the reserve price of the property at the previous auction.
6.If the property fails to sell at…

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 Cadwell and Cadwell

Details

AGLC: Cadwell and Cadwell [2009] FamCA 881
Case: [2009] FamCA 881
Decision Date: 15 September 2009

CaseChat Overview and Summary

This matter concerned an application by the parties, Mr and Mrs Cadwell, for final orders in relation to property settlement. The court was required to determine the terms of these orders, which involved the division of various assets including bank accounts, a property, and shares. The orders sought to provide a comprehensive framework for the division of the former matrimonial home and other property.

The primary legal issues before the court were how to effect a fair and equitable distribution of the parties' assets and how to manage the sale of the former matrimonial home. This included determining the process for its sale, including the reserve price, the conduct of auctions, and the distribution of proceeds. The court also had to address the division of jointly owned shares and declare each party the sole owner of other property and superannuation in their possession.

The court made orders that discharged certain previous directions and confirmed others as final. These final orders stipulated that the wife was to pay a specified sum from her BankWest account into an ANZ account, with both parties restrained from withdrawing funds from this ANZ account except for the purposes of fulfilling the orders or with mutual consent. The court also detailed a comprehensive process for the sale of the former matrimonial home, including joint instructions to an auctioneer and solicitor, a specified reserve price, and a procedure for subsequent auctions with progressively reduced reserve prices if the property did not sell. The proceeds of sale were to be applied to agent's and legal costs, discharge of the mortgage, and then distributed between the parties in specified percentages. The court further ordered the transfer of jointly owned shares and declared each party the sole owner of other property and superannuation. The orders were to commence operation from 30 September 2009.

Orders

Orders of the court

That paragraphs 9 and 10 of the orders of 10 September 2009 are discharged.

That paragraphs 1 to 8 of the said orders are confirmed as final orders as set out hereunder:-

1. That the wife forthwith and within 3 business days of the date hereof pay to the ANZ Bank account number […]35 all monies held by her, including interest in her account with BankWest except for $60,000.00, $30,000.00 of which shall be paid by her to each party.

2.1 That both parties are hereby restrained from taking, withdrawing or transferring any monies out of the following account, other than for the purposes of fulfilling these orders or with the prior written consent of both parties: ANZ Bank account number […]35 (“ANZ Bank account”)

2.2 Each party must, within one (1) business day of the date of the making of these orders, notify the ANZ Bank of the terms and the effect of the above order 2.1.

3. In order to give effect to order 1:-

3.1 The parties shall sign all auction authorities and pay all monies (if any) required to be paid to the Auctioneer within 7 days of the date hereof.

3.2 Either party may on behalf of both parties instruct the Solicitor to prepare a contract to enable the property to be sold in accordance with the Auctioneer’s selling program or requirements.

3.3 Both parties shall sign the auction contract within a reasonable time of being requested so to do by the auctioneer.

4. The parties shall jointly instruct Mr John Anthony, solicitor of Newtown to have the carriage of the sale.

4.1 The parties should jointly instruct [Mr H] as their agent for the purpose of the sale and jointly negotiate the terms of the agency agreement and a reserve price.

4.2 The reserve price is $905,000.00.

4.3 The Auction shall proceed on Saturday, […] September 2009, or earlier if agreed.

5. If the property is not sold at auction, a further auction shall be conducted within 2 months of the date of the failed auction and the reserve price for the property shall be 10% less than the reserve price of the property at the previous auction.

6. If the property fails to sell at the second auction, then the wife be allowed to take up exclusive residence in the property and a further auction shall be conducted within a further 2 months at a reserve price of 10% less than the reserve price offered at the previous auction. This procedure shall continue, that is there shall be an auction sale each 2 months and the reserve price shall reduce at each auction by 10% from the previous reserve price until a sale is achieved.

7. If either party pays any fees such as advertising fees or other outgoings in respect of the auction or Solicitors costs prior to the conclusion of the sale of the property, then any monies so paid shall be reimbursed to such party out of the proceeds of sale before the nett proceeds of sale are distributed between the parties.

8. If the Auctioneer or nominee recommends that any monies be paid to any person to undertake any work in respect of the property prior to sale, then any monies so expended shall be reimbursed to the party who paid them prior to a distribution of the proceeds of sale.

The proceeds of sale of the former matrimonial home known as E property shall be paid as follows:

3.1 To pay agent’s costs and costs of sale including legal costs;

3.2 To discharge the mortgage and

3.3 To pay 57.031 percent of the balance to the wife and 42.969 percent thereof to the husband

The parties are forthwith to do all things and sign all documents necessary to transfer half of the jointly owned shares in IAG to each of them or in such other proportions as they might otherwise agree with an appropriate cash adjustment.

Otherwise the parties are declared pursuant to s 79 of the Act to each be the sole owner of all other property and superannuation in their possession and/or control respectively.

All exhibits are to be released.

Both parties shall have liberty to re-list these proceedings on 7 days notice in relation to the implementation of these orders.

The above orders shall not commence operation until 30 September 2009.

Both parties shall have liberty to re-list these proceedings for the purposes of further submissions in relation to the form of the orders only at any time until 29 September 2009.

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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