FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Charles & Charles [2023] FedCFamC2F 1237
File number(s): NCC 3549 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 22 September 2023 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79 Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 15 September 2023 Place: Parramatta Counsel for the Applicant: Mr Battley Solicitor for the Applicant: Warwick McCarthy & Co Solicitors Counsel for the Respondent: Mr Bateman Solicitor for the Respondent: Osborne Legal ORDERS
NCC 3549 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHARLES
Applicant
AND: MS CHARLES
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
22 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Within 3 months from the date of these Orders the following shall occur simultaneously:
(a)The wife shall pay the husband the sum of $58,213.
(b)The husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right title and interest in the property situate at B Street, Town C (hereinafter “B Street”).
(c)The husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right title and interest in the property situate at D Street, Town C (hereinafter “D Street”).
(d)The wife shall refinance the mortgage with NAB over B Street and D Street into her sole name.
2.Failing the wife complying with the above Order, the husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of B Street and by way of consequential arrangement:
(a)The listing price for B Street shall be as agreed between the parties and if there is no agreement then the listing price shall be $156,000.
(b)B Street shall be listed for sale by private treaty with an estate agent as agreed upon between the parties and if there is no agreement then the estate agent shall be as nominated by the President of the Real Estate Institute of New South Wales.
3.On completion of the sale in accordance with the above Order, the proceeds of the sale shall be distributed in the order set out below after the usual adjustments (up to completion) are made for any land tax, council rates or water rates:
(a)In discharge of the mortgage loan ending …80 to NAB;
(b)Payment of all selling estate fees and marketing expenses in respect of the sale;
(c)Payment of all solicitor’s professional fees and disbursements in respect of the sale;
(d)As to the balance:
(i)The husband shall receive $58,213 less his half share of the expenses in (b) and (c) above;
(ii)The wife shall receive the balance less her half share of the expenses in (b) and (c) above.
4.Should B Street not be sold within 3 months of being listed for sale pursuant to…
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CaseChat Overview and Summary
Judge Newbrun considered the contributions of each party to the acquisition and maintenance of the properties, as well as their future needs and circumstances. The court found that the proposed division of property and liabilities was just and equitable. The wife was ordered to pay the husband $58,213, and the husband was required to transfer his interest in the properties to the wife. The wife was also required to refinance the mortgage over the properties into her sole name. If the wife failed to comply with these orders, the properties were to be sold, with the proceeds distributed between the parties according to the court’s orders.
The court further ordered that the husband remain liable for a loan from his parents relating to B Street and indemnify the wife in relation to that loan. Both parties were to retain their personal property, shares, debentures, bank accounts, life insurance policies, and superannuation funds. Each party was also to be solely responsible for their own debts and liabilities as at the date of the orders. The court appointed a Registrar to enforce the orders if either party failed to comply.
Orders
Orders of the court
NCC 3549 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CHARLES
Applicant
AND:
MS CHARLES
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
22 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. Within 3 months from the date of these Orders the following shall occur simultaneously:
(a) The wife shall pay the husband the sum of $58,213.
(b) The husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right title and interest in the property situate at B Street, Town C (hereinafter “B Street”).
(c) The husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right title and interest in the property situate at D Street, Town C (hereinafter “D Street”).
(d) The wife shall refinance the mortgage with NAB over B Street and D Street into her sole name.
2. Failing the wife complying with the above Order, the husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of B Street and by way of consequential arrangement:
(a) The listing price for B Street shall be as agreed between the parties and if there is no agreement then the listing price shall be $156,000.
(b) B Street shall be listed for sale by private treaty with an estate agent as agreed upon between the parties and if there is no agreement then the estate agent shall be as nominated by the President of the Real Estate Institute of New South Wales.
3. On completion of the sale in accordance with the above Order, the proceeds of the sale shall be distributed in the order set out below after the usual adjustments (up to completion) are made for any land tax, council rates or water rates:
(a) In discharge of the mortgage loan ending …80 to NAB;
(b) Payment of all selling estate fees and marketing expenses in respect of the sale;
(c) Payment of all solicitor’s professional fees and disbursements in respect of the sale;
(d) As to the balance:
(i) The husband shall receive $58,213 less his half share of the expenses in (b) and (c) above;
(ii) The wife shall receive the balance less her half share of the expenses in (b) and (c) above.
4. Should B Street not be sold within 3 months of being listed for sale pursuant to the Order 2, then:
(a) The parties shall instruct the estate agent to list B Street for sale by private treaty at a price agreed to by the parties and failing agreement at a figure of 5 per cent less than the initial listing price;
(b) Interest shall accrue in favour of the husband on the sum of $58,213 at the rate prescribed by r 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(c) The proceeds of sale shall be distributed in accordance with Order 3 above.
5. As between the husband and wife, and subject to the above Orders, the husband and wife shall each respectively retain all interest in and entitlement to:
(a) All personal property now in his/her respective possession or control.
(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
(c) All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
6. As between the husband and wife and subject to these Orders they are each solely responsible for and shall indemnify the other party in relation to any debts or liabilities standing in their sole name as at the date of these Orders.
7. The husband shall remain liable for the loan from his parents relating to B Street ($49,000) and shall indemnify the wife in relation to that loan.
8. Both the husband and wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
9. The parties will do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
10. The parties and each of them is ordered to do all acts and things and sign all documents to give effect to these Orders and in the event of either party failing, neglecting or refusing to do any act or thing or sign any document which is required to give such effect, a Registrar of the Federal Circuit and Family Court of Australia is appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) (as amended) to do such act or thing or sign such document in the name of the defaulting party and on that party's behalf.
11. Liberty to the parties to apply to the Court on 7 days’ notice in respect to the implementation or facilitation of the above Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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