CARROLL & CARROLL - [2012] FMCAfam 1100

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARROLL & CARROLL

[2012] FMCAfam 1100

FAMILY LAW – Property – long marriage – contributions – gambling – failed business – future needs.

Family Law Act 1975, ss.79, 75
Evidence Act 1995 (Cth)

Hickey & Hickey (2003) FLC 93-141
Ferraro & Ferraro (1993) FLC 92-335
DH & RM [2004] FMCAfam 74
Norbis v Norbis (1986) 161 CLR 513
McMahon and McMahon (1995) FLC 92-606
Kowaliw & Kowaliw (1981) FLC 91-902
Browne & Green (1999) FLC 92-873
D & D [2005] FamCA 356
Hamilton & Thomas [2008] FamCAFC 8
De Angelis & De Angelis (2003) FLC 93-133
Briginshaw v Briginshaw (1938) 60 CLR 336
Hampton Court v Crooks (1957) 97 CLR 367
G v H (1994) 181 CLR 387
Weir & Weir (1993) FLC 92-338
Waters & Jurek (1995) FLC 92-635
Clauson and Clauson (1995) FLC 92-595

Anthony Dickey, Family Law (5th ed, Lawbook Co., 2007)

Applicant:

MR CARROLL

Respondent:

MS CARROLL

File Number:

DGC 2391 of 2008

Judgment of:

Baker FM

Hearing dates:

7, 8, and 23 May and 14 June 2012

Date of Last Submission:

14 June 2012

Delivered at:

Hobart

Delivered on:

11 October 2012

REPRESENTATION

Counsel for the Applicant:

Mr Turnbull

Solicitors for the Applicant:

Ogilvie Jennings

Counsel for the Respondent:

Mr Foster

Solicitors for the Respondent:

Moores Legal

ORDERS

Within 45 days form the date of this order the wife shall pay to the husband the sum of $91,531.00.
In the event that the wife is not able to obtain finance to pay the husband to sum referred to in order 1:
(a)The property situated at Property E shall be listed for sale.
(b)The listing price shall be agreed between the parties and failing agreement as determined by a valuer nominated by the Present of the Real Estate Institute of Victoria.
(c)The property shall be sold by such means as auction or private treaty as agreed and failing agreement as determined by an agent nominated by the President of the Real Estate Institute of Victoria.
(d)The husband and wife both forthwith do all acts and things and sign all necessary documents to effect the sale of the property.
(e)The proceeds of sale of the property be distributed as follows:
(i)To discharge the mortgage and any other encumbrances effecting the property;
(ii)To pay all real estate agent’s costs, commissions and expenses of the sale of the property;
(iii)To pay any council fees and rates outstanding in the respect of the property;
(iv) To pay the solicitor’s costs in relation to the property;
(v)The balance to be divided between the husband and wife so as to ensure that the husband receives a sum equal to 25% of the net asset pool.
(f)Pending completion of the sale of the property the wife shall be solely responsible for the payments of principal and interest of the mortgage secured over the property and shall make all payments in relation to it.
(g)Pending completion of the sale of the property the wife will be liable for…

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

AGLC: CARROLL & CARROLL [2012] FMCAfam 1100
Case: [2012] FMCAfam 1100
Decision Date: 11 October 2012

CaseChat Overview and Summary

The case before the Family Court of Australia involves a dispute between the husband and wife, identified as Carroll & Carroll, regarding the division of their matrimonial property and associated financial obligations. The wife sought an order for the husband to contribute towards the purchase of her property, which was part of the couple’s matrimonial assets. The husband, in turn, contested the wife’s application and sought orders regarding the division of the remaining assets, including the sale of a specific property.

The court was tasked with determining the appropriate division of the matrimonial assets, specifically focusing on the financial obligations of the wife towards the husband. Additionally, the court had to decide on the terms of the sale of the specified property if the wife was unable to obtain finance to meet her financial obligations to the husband. The court also needed to outline the respective responsibilities of the parties towards the property pending the sale and the distribution of the proceeds of the sale.

The court, after considering the evidence and submissions from both parties, ruled that the wife must pay the husband $91,531.00 within 45 days. If the wife was unable to obtain the necessary finance, the court mandated the sale of the property situated at Property E. The sale conditions included the listing price determination, sale methods, and distribution of the sale proceeds. The court further outlined the responsibilities of the parties towards the property and the distribution of sale proceeds. Each party was to be solely responsible for their respective debts and assets, with specific provisions for the wife's ongoing financial obligations during the sale process. The wife’s application for costs was adjourned to allow for further hearing and consideration.

The court issued specific orders detailing the timeline and process for the sale of the property, the distribution of proceeds, and the division of remaining assets. Each party was to indemnify the other against any liabilities concerning their respective properties. The wife was to solely manage the mortgage payments and other obligations of Property E until the sale was completed. The wife’s application for costs was deferred for a later hearing date.

Orders

Orders of the court

Within 45 days form the date of this order the wife shall pay to the husband the sum of $91,531.00.

In the event that the wife is not able to obtain finance to pay the husband to sum referred to in order 1:

(a) The property situated at Property E shall be listed for sale.

(b) The listing price shall be agreed between the parties and failing agreement as determined by a valuer nominated by the Present of the Real Estate Institute of Victoria.

(c) The property shall be sold by such means as auction or private treaty as agreed and failing agreement as determined by an agent nominated by the President of the Real Estate Institute of Victoria.

(d) The husband and wife both forthwith do all acts and things and sign all necessary documents to effect the sale of the property.

(e) The proceeds of sale of the property be distributed as follows:

(i) To discharge the mortgage and any other encumbrances effecting the property;

(ii) To pay all real estate agent’s costs, commissions and expenses of the sale of the property;

(iii) To pay any council fees and rates outstanding in the respect of the property;

(iv) To pay the solicitor’s costs in relation to the property;

(v) The balance to be divided between the husband and wife so as to ensure that the husband receives a sum equal to 25% of the net asset pool.

(f) Pending completion of the sale of the property the wife shall be solely responsible for the payments of principal and interest of the mortgage secured over the property and shall make all payments in relation to it.

(g) Pending completion of the sale of the property the wife will be liable for and indemnify the husband against all payments and liabilities in respect of the Property E property including but not limited to all rates, taxes and outgoings of whatsoever nature and kind and indemnify and keep the husband indemnified in respect thereof.

Unless otherwise specified in this order;

(i) Each party will be solely entitled to the exclusion of the other to all property in the possession of that party as at this date.

(ii) Each party will be solely liable for and indemnify the other party against any liability encumbering any form of property to which that party is entitled pursuant to this order.

(iii) Each party will remain solely liable for their respective debts.

(iv) Each party sign all such documents and do all such things as may be required to impellent the terms of this order.

The wife’s application for costs be adjourned to 23 November 2012 at 10.00am for hearing.

Pursuant to rule 21.15 of the

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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