Chaves and Chaves - [2019] FamCA 1022

FAMILY COURT OF AUSTRALIA

CHAVES & CHAVES

[2019] FamCA 1022

FAMILY LAW – PROPERTY – Interim distribution – Where each party seeks orders in relation to the sale of two properties – Where the parties agree that both properties should be sold – Where the parties agree on the reserve prices – Where the wife seeks that she be appointed as trustee of the sales – Where the husband seeks that the sales be effected jointly – Where the nature of the parties’ relationship would make it difficult for them to effect the sales jointly – Where there is no practical risk of the wife acting adversely to the parties’ shared interests – Wife to be appointed as trustee of sale for each property – Orders made for the net proceeds of sale to be firstly applied to discharge the mortgages, pay agents’ fees and other costs associated with the sales – Remaining balance of the proceeds of sale of the first property to be divided equally between the parties by way of interim property settlement – Any balance of the proceeds of sale of the second property to be retained in a controlled monies account – Orders made for the husband to vacate both properties in anticipation of the sales.

Family Law Act 1975 (Cth) ss 79, 75, 114
APPLICANT:	Ms Chaves

RESPONDENT:

Mr Chaves

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

925

2019

DATE DELIVERED:

6 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

6 December 2019

REPRESENTATION

APPLICANT APPEARED IN PERSON:

Ms Chaves

RESPONDENT APPEARED IN PERSON

Mr Chaves

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

Orders

The mother file and serve a Response to any application for interim parenting orders filed and served by the father, that Response and her affidavit/s in support be filed and served within seven days after the date of service of the father’s material.
The Court Notes that a hearing date will be allocated by the registry on the filing of any such application.
The Independent Children’s Lawyer is excused in relation to the balance of the hearing today.
Within six week’s from the date of these Orders or such other time as is agreed between the parties in writing the husband vacate the property known as G Street, Suburb H in the State of New South Wales (“Suburb H property”).
The wife be appointed the trustee for sale of the Suburb H property and that subject to these orders she is authorised to sell the property in any manner she deems fit including appointing a real estate agent and lawyer to act on the sale, to sign all documents required for the sale and to negotiate a sale price and accept offers from any potential purchasers.
The Suburb H property be listed for sale as soon as practicable and sold with a reserve price of $1.65 million or such other price as the parties agree upon in writing and that…

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 Chaves and Chaves

Details

AGLC: Chaves and Chaves [2019] FamCA 1022
Case: [2019] FamCA 1022
Decision Date: 6 December 2019

CaseChat Overview and Summary

This matter concerned applications by the father for interim parenting orders and property settlement, and by the mother for interim property orders, before Loughnan J of the Federal Circuit and Family Court of Australia. The dispute involved the welfare of the children and the division of significant assets, including two properties.

The court was required to determine, among other things, the interim arrangements for the children, the immediate possession and sale of two properties located at G Street, Suburb H, and D Street, Suburb J, in New South Wales, and the management of a Commonwealth Bank account. The court also needed to address the provision of information regarding the sale of the properties and the use of a motor vehicle.

Loughnan J made orders for the mother to file and serve a response to any interim parenting applications by the father within seven days. The court also ordered the husband to vacate both the Suburb H and Suburb J properties within six weeks, appointing the wife as trustee for the sale of each property. The wife was authorised to sell the properties in any manner she deemed fit, with specific reserve prices set for each. The proceeds of sale were to be disbursed in a defined priority, with the remaining balance of the net proceeds from the Suburb H property to be divided equally between the parties as an interim property distribution. The wife was also ordered to provide the husband with detailed information regarding the sale process of both properties and to respond promptly to his written requests for updates. Furthermore, the husband was restrained from dealing with a specific Commonwealth Bank account without the wife's prior written consent, and the wife was ordered to provide the husband with a spare key for a motor vehicle. The parties were also directed to attend a conciliation conference.

Orders

Orders of the court

The mother file and serve a Response to any application for interim parenting orders filed and served by the father, that Response and her affidavit/s in support be filed and served within seven days after the date of service of the father’s material.

The Court Notes that a hearing date will be allocated by the registry on the filing of any such application.

The Independent Children’s Lawyer is excused in relation to the balance of the hearing today.

Within six week’s from the date of these Orders or such other time as is agreed between the parties in writing the husband vacate the property known as G Street, Suburb H in the State of New South Wales (“Suburb H property”).

The wife be appointed the trustee for sale of the Suburb H property and that subject to these orders she is authorised to sell the property in any manner she deems fit including appointing a real estate agent and lawyer to act on the sale, to sign all documents required for the sale and to negotiate a sale price and accept offers from any potential purchasers.

The Suburb H property be listed for sale as soon as practicable and sold with a reserve price of $1.65 million or such other price as the parties agree upon in writing and that upon completion of the sale the wife authorise the disbursement of proceeds of sale in the following manner and priority:

6.1 the amounts required to discharge the mortgage secured over the title of the Suburb H property (being both the mortgage account number …59 and …67);

6.2 all costs and expenses of sale including legal costs and disbursements, advertising expenses (including the reimbursement of any such expenses as have been paid by either or both of the parties by private agreement between them);

6.3 the amounts required to pay all municipal and water rates outstanding with respect to the Suburb H property as adjusted between vendor and purchaser;

6.4 in payment to B Real Estate Agents of Suburb H, on account of their outstanding agent’s fees and commissions.

6.5 The remaining balance of the net proceeds of sale shall be divided equally between the parties by way of interim property distribution.

That within six weeks from the date of these Orders or such other time as the parties might agree upon in writing, the husband vacate the property known as D Street, Suburb J in the State of New South Wales (“Suburb J property”).

The wife be appointed trustee for the sale of the Suburb J property and subject to these orders is authorised to sell the property in any manner she deems fit including appointing a real estate agent and lawyer to act on the sale, signing all documents required for the sale and negotiating the sale price and accepting offers from any potential purchasers.

The Suburb J property be listed for sale as soon as practicable and sold with a reserve price of $700,000 and that upon completion of the sale the wife authorise the disbursement of the net proceeds of sale in the following manner and priority:

9.1 the amounts required to discharge the mortgage secured over the title of the Suburb J property;

9.2 all costs and expenses of sale including legal costs and disbursements, advertising expenses, agent commissions, valuers fees (if applicable) and auction expenses;

9.3 the amounts required to pay all municipal and water rates outstanding with respect to the Suburb J property as adjusted between vendor and purchaser;

9.4 in payment of the balance remaining to a controlled monies account operated on behalf of the parties by the solicitors for the applicant, Swaab or such firm as nominated by the wife.

10.

In relation to the sale of each of the Suburb H and Suburb J properties the wife provide to the husband as soon as practicable a copy of any agreement with a real estate agent for the sale of either property, a copy of any draft contract for sale and notice of all and any offers in respect of those properties together with immediate notice of the acceptance of an offer for sale, copies of the signed contracts, notice of the settlement dates and copies of the settlement sheet in relation to each such sale.

11.

The wife respond in a timely way to any written request from the husband in respect of the progress of the sale of either property.

12.

The husband be restrained until further order from dealing with drawing on, transferring or otherwise transacting in relation to any funds or liabilities associated with Commonwealth Bank Account No. …20 without the wife’s prior written consent.

13.

As soon as practicable the wife provide to the husband the spare key in her possession for the Motor Vehicle 1 Registration No. ….

14.

The parties attend a conciliation conference on 16 January 2020 at 2.00 pm.

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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