Cord and Cord - [2013] FMCAfam 61

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CORD & CORD

[2013] FMCAfam 61

FAMILY LAW – Property – interim application for property distribution pending final hearing – husband seeks sale of parties’ former family home prior to final hearing of competing applications for settlement of matrimonial property – husband proposes each party receive payment of $100,000.00 upon sale of property with proceeds, after payment of expenses to be invested prior to trial – wife seeks to retain property following hearing – husband asserts such an outcome impossible given nature of each parties’ contributions up to this point – parties have been separated for in excess of two years – since separation wife has lived in subject property with children of the marriage with the acquiescence of husband – husband has made significant contributions towards payment of outgoings on property – wife has limited income – husband asserts that when child support issues are considered he has no capacity to continue to pay outgoings on subject property – husband further contends that the wife has no capacity to acquire what must be his significant interest in property – matters to be considered – justice and equity – interests of justice – whether appropriate to make such an order.

Family Law Act 1975, ss.75(2), 79(1), 79(2), 79(4) & 80(1)(h)

Stanford v Stanford [2012] HCA 52
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
R v Watson; Ex parte Armstrong[1976] HCA 39; (1976) 136 CLR 248

Strahan v Strahan (2010) 42 Fam LR 203
Harris & Harris (1993) FLC 92-378

Wenz v Archer (2009) 40 Fam LR 212
Benson & Benson [2012] FMCAfam 335

Applicant:

MR CORD

Respondent:

MS CORD

File Number:

MLC 4542 of 2012

Judgment of:

Brown FM

Hearing date:

11 December 2012

Date of Last Submission:

11 December 2012

Delivered at:

Adelaide

Delivered on:

29 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Keen

Solicitors for the Applicant:

Lander & Rogers

Counsel for the Respondent:

Mr Berman SC

Solicitors for the Respondent:

Norman Waterhouse

ORDERS

The application filed by the husband on 29 November 2012 in which he sought the sale of the parties’ former family home located at Property W, [W] and the distribution of proceeds prior to the hearing of the parties’ competing application for final orders dividing their matrimonial property estate is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cord & Cord is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

MLC 4542 of 2012

MR CORD

Applicant

And

MS CORD

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment relate to an application for interim or partial settlement of matrimonial property. The applicant in the proceedings Mr Cord “the husband” seeks an order that a property located at Property W, [W] be sold as soon as practicable.
The respondent to the application is Ms Cord “the wife”. The property concerned is the parties’ former matrimonial home. The…

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 Cord and Cord

Details

AGLC: Cord and Cord [2013] FMCAfam 61
Case: [2013] FMCAfam 61
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, Mr Cord, the husband, sought an order for the sale of the parties’ former family home and the distribution of the proceeds prior to the hearing of the parties’ competing application for final orders dividing their matrimonial property estate. Ms Cord, the wife, opposed the application and sought its dismissal. The court had to decide whether it was appropriate to make such an order pending final hearing. The court considered the principles of justice and equity, the interests of the parties, and the need to avoid multiple hearings in respect of property issues. The court also had to consider the potential for the wife to suffer irremediable prejudice in the period leading up to the final hearing.

The court found that the application for the sale of the former family home should be dismissed. The court concluded that it would not be just and equitable to make the orders sought by the husband at this stage, and that the discretion to make an interim or partial property settlement is not to be mechanically or routinely performed. The court found that it would be preferable to have only one final hearing of property proceedings, rather than a succession of subsidiary provisional hearings. The court also found that the wife had not formulated the means by which she wished to retain the property, and that there were controversies arising between the parties regarding the disclosure of relevant financial information. The court concluded that there were "known unknowns" and "unknown unknowns" that may significantly change the issues in dispute between the parties and how their property is to be distributed between them. Therefore, the court dismissed the husband’s application for the sale of the property.

The orders of the court were that the application filed by the husband on 29 November 2012 in which he sought the sale of the parties’ former family home located at Property W, [W] and the distribution of proceeds prior to the hearing of the parties’ competing application for final orders dividing their matrimonial property estate is dismissed.

Orders