Connor and Connor - [2008] FamCA 847

FAMILY COURT OF AUSTRALIA

CONNOR & CONNOR

[2008] FamCA 847

FAMILY LAW – SPOUSAL MAINTENANCE – Lump sum – Interim – Sale of matrimonial home – Sale of assets including art

APPLICANT:

Ms Connor

RESPONDENT:

Mr Connor

FILE NUMBER:

MLC

1600

2008

DATE DELIVERED:

14 August 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Watt J

HEARING DATE:

5, 8 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Atkinson

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

Orders

IT IS ORDERED BY CONSENT THAT:

The parties and the children of the marriage further attend upon Ms D, psychologist for the purposes of preparing an updated family report as to the issues raised in the husband’s further amended response filed 5 August 2008 and generally as matters affecting the interests of and arrangements for the children AND IT IS REQUESTED that a copy of the update report be made available to the parties and the Court by 30 September 2008. The costs of that report be paid from the proceeds of sale of the O paintings.
On or before 19 August 2008:
(a)the husband provide to the wife, at his expense, all the documents listed on the facsimile letter from Taussig Cherrie to Lander & Rogers dated 1 August 2008;
(b)the wife provide to the husband, at her expense, so many of the documents referred to in paragraph 17 of the husband’s further amended response filed 5 August 2008.
The husband provide to the solicitors for the wife:
(a) not less than 14 days written notice of the proposed date of settlement of the current component sold within F development, or if not known to the husband within 14 days, within 24 hours of the husband being aware of same;
(b) not less than seven days written notice of the proposed statement of adjustment and settlement statement for the sale, or if not available to the husband, within 24 hours of the husband receiving same.
The parties attend a mediation conducted by Mr J Melilli of the Victorian Bar on or before 15 September 2008 and that any fees of the mediator be met from the sale of the artwork referred to in the annexure to the orders made on 6 May 2008 or from borrowings to be secured in accordance with paragraph 2 of the orders made on 6 June 2008.
I reserve liberty to the parties to apply generally on short notice in writing to the other party.

IT IS FURTHER ORDERED THAT:

By consent I discharge paragraph 3 of my order made 5 August 2008
The parties do all things and sign all documents necessary to cause the former matrimonial home at T to be sold at auction such auction to be conducted by no later than the end of September 2008 (unless otherwise agreed by the parties) and from the net proceeds of sale after payment of all reasonably incurred…

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 Connor and Connor

Details

AGLC: Connor and Connor [2008] FamCA 847
Case: [2008] FamCA 847
Decision Date: 14 August 2008

CaseChat Overview and Summary

In the matter of *Connor and Connor*, Watt J of the Family Court of Australia made orders by consent between the husband and wife concerning various financial and practical arrangements. The dispute involved the division of matrimonial assets and arrangements for the children, with specific directions regarding the sale of property, disclosure of documents, and attendance at mediation and psychological assessments.

The court was required to determine the specific terms of consent orders addressing the sale of the former matrimonial home and other assets, the distribution of proceeds from these sales, the disclosure of financial documents between the parties, and the arrangements for a family report and mediation. The orders also dealt with the discharge of a mortgage and the allocation of funds from the sale of artwork.

Watt J's reasoning, as reflected in the consent orders, involved facilitating the resolution of financial matters and ensuring appropriate arrangements for the children. The court applied principles of family law by ordering the sale of assets to achieve an equitable distribution of property and by directing psychological assessments and mediation to address issues concerning the children and to promote settlement. The orders reflect a pragmatic approach to resolving complex financial and familial issues, with specific timelines and responsibilities assigned to each party.

The court made detailed orders by consent, including the sale of the former matrimonial home with specific distribution of proceeds, the sale of certain paintings with a directed allocation of funds, and the disclosure of financial documents. The parties were ordered to attend mediation and a psychologist, and liberty to apply was reserved. The matter was adjourned for oral reasons to be given.

Orders

Orders of the court

IT IS ORDERED BY CONSENT THAT:

The parties and the children of the marriage further attend upon Ms D, psychologist for the purposes of preparing an updated family report as to the issues raised in the husband’s further amended response filed 5 August 2008 and generally as matters affecting the interests of and arrangements for the children AND IT IS REQUESTED that a copy of the update report be made available to the parties and the Court by 30 September 2008. The costs of that report be paid from the proceeds of sale of the O paintings.

On or before 19 August 2008:

(a) the husband provide to the wife, at his expense, all the documents listed on the facsimile letter from Taussig Cherrie to Lander & Rogers dated 1 August 2008;

(b) the wife provide to the husband, at her expense, so many of the documents referred to in paragraph 17 of the husband’s further amended response filed 5 August 2008.

The husband provide to the solicitors for the wife:

(a) not less than 14 days written notice of the proposed date of settlement of the current component sold within F development, or if not known to the husband within 14 days, within 24 hours of the husband being aware of same;

(b) not less than seven days written notice of the proposed statement of adjustment and settlement statement for the sale, or if not available to the husband, within 24 hours of the husband receiving same.

The parties attend a mediation conducted by Mr J Melilli of the Victorian Bar on or before 15 September 2008 and that any fees of the mediator be met from the sale of the artwork referred to in the annexure to the orders made on 6 May 2008 or from borrowings to be secured in accordance with paragraph 2 of the orders made on 6 June 2008.

I reserve liberty to the parties to apply generally on short notice in writing to the other party.

IT IS FURTHER ORDERED THAT:

By consent I discharge paragraph 3 of my order made 5 August 2008

The parties do all things and sign all documents necessary to cause the former matrimonial home at T to be sold at auction such auction to be conducted by no later than the end of September 2008 (unless otherwise agreed by the parties) and from the net proceeds of sale after payment of all reasonably incurred costs of sale and the discharge of all encumbrances the proceeds then available are to be paid to the solicitors for the wife and applied:

(a) in payment of the sum of $145,000 to the wife; and

(b) to pay the balance to the wife’s solicitors to be held in an interest bearing account on trust for the husband and the wife until further order of the Court or unless with the prior written consent of the parties.

If by 4.00pm on 15 August 2008 the parties are unable to agree on the appointment of an agent or agents to market the property and conduct the auction, the reserve price, the advertising to be conducted or any other aspect of the sale such matters upon which the parties are unable to agree are to be conducted in accordance with advice received from the Director of the Real Estate Institute of Victoria or his nominee.

The husband, in his capacity as the sole Director of E Pty Ltd, do all things and sign all such documents as may be required to discharge the registered mortgage to Perpetual Trustee Company Ltd in anticipation of the settlement of the sale of T property.

10.

The parties jointly instruct X Galleries to pay the proceeds of sale of the O paintings (less any commission properly payable on the sale) to the solicitors for the wife who are to pay to the wife the sum of $105,000 and hold the balance to be applied in payment of one half of the the costs of the accountant’s report (exhibit ‘H&W1’), Ms D’s second report and the costs of the mediator conducting the mediation to be held in accordance with paragraph 4 of this order and in payment of the balance then remaining to the wife.

11.

I reserve liberty to the parties to apply to vacate paragraph 4 of this order in the event that non-compliance with paragraphs 2 or 3 (or both) is alleged by the party applying.

12.

In the event that before the date fixed for the auction of the property in accordance with paragraph 7 of this order the wife receives amounts totalling the sum of $250,000 representing the proceeds of sale of any assets of the parties in respect of which orders for sale have already been made, the number plates sold by Mr C, a borrowing in accordance with earlier orders or those assets in respect of which she seeks an order for sale in her amended application in a case filed 2 June 2008, I reserve liberty to the husband to apply for the vacation of the order for sale and in the event that sales of such assets produce proceeds of sale in excess of the amount necessary to pay the said sum to the wife the husband is to pay such excess to his solicitors who are to hold any such amount or amounts on trust for the parties in an interest bearing account until further order or the receipt of joint instructions from the parties as to their disposition.

13.

In the event that the wife has received the said sum of $250,000 and thereafter the proceeds of sale of the G painting (see paragraph 3 of annexure A to the orders of 6 May 2008) become available the wife is to pay the said proceeds to her solicitor to be held on trust by her solicitors for the parties in an interest bearing account.

14.

I reserve the final characterisation of the funds [$250,000] to be received by the wife as envisaged by this order to the trial judge.

15.

I adjourn the matter to 9.15am on 14 August 2008 to give my reasons orally.

AND THE COURT NOTES that the Court has been advised this day by counsel for the parties that the two O paintings have been sold for a sum of $140,000 (which sum has been received from the X Gallery) and the selling agent’s commission is likely to be approximately $20,000 leaving net proceeds of approximately $120,000 to be applied in accordance with this order.

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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