Crest and Oates - [2009] FamCA 310

FAMILY COURT OF AUSTRALIA

CREST & OATES

[2009] FamCA 310

FAMILY LAW – PROPERTY SETTLEMENT – obligation of full and substantive disclosure in property proceedings and positive nature of that obligation – not fulfilled by the wife - credit findings against wife – substantial diminution of assets in the control of the wife while property proceedings pending – discussion of add backs to asset list and hazards of doing so in the circumstances of this case – orders for the husband to receive all of the actual available assets except for remainder of wife’s superannuation which she retains

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338

Kiefer & Kiefer (2008) 40 FLR 295

APPLICANT:

Mr Crest

RESPONDENT:

Ms Oates

FILE NUMBER:

SYF

2939

2006

DATE DELIVERED:

28 April 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

25, 26, 27 June & 15, 16, 17, 18 December 2008 &

30 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Simpson SC with Ms Cleary

SOLICITOR FOR THE APPLICANT:

Athena Touriki Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC with Mr Schonell
[25-27 June 2008]
Ms Mundey
[15-18 December 2008 & 30 January 2009]

SOLICITOR FOR THE RESPONDENT:

Aitken Lawyers

Orders

The husband and the wife are to do all acts and things necessary to pay to the husband the whole of the net proceeds of sale of the B1 property.
The wife is to forthwith do all things and sign all documents necessary to sell the property at H, Queensland and to pay to the husband on settlement of the sale the whole of the net proceeds of sale after payment of the following:
(i)the costs, expenses and commission of the real estate agents acting on the sale of the property;
(ii)the costs, fees and disbursements of the lawyers acting for the parties on the sale of the H property; and
(iii)the amount owing to the ANZ Bank Loan Account No. ….
The husband is entitled to direct the manner and timing of the sale referred to in order 2 here and if the H property is sold by public auction either party may attend at the auction and bid to purchase the property.
Unless otherwise specified by these orders each party is entitled to retain absolutely all property owned by that party and presently in the possession of that party.
The wife is to continue to pay to the husband spouse maintenance in the sum of $984 per week until the husband receives in full the proceeds of sale of the B1 property.
If the wife refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the orders made, a Registrar of the Court at Sydney is appointed pursuant to s.106A to execute the deed or instrument in the name of the wife and to do all other acts and things necessary to give…

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 Crest and Oates

Details

AGLC: Crest and Oates [2009] FamCA 310
Case: [2009] FamCA 310
Decision Date: 28 April 2009

CaseChat Overview and Summary

In *Crest and Oates*, heard by Moore J, the dispute concerned the division of property and the provision of spousal maintenance between a husband and wife. The orders made by the court addressed the sale of a property at H, Queensland, the distribution of its net proceeds, and the wife's obligation to pay spousal maintenance to the husband. The court also made orders regarding specific items of property, including a painting and household furniture, and provided for the execution of necessary documents by a Registrar if a party refused to comply.

The court was required to determine how the net proceeds of the sale of the H property should be distributed, specifically to whom they should be paid and what deductions were permissible. Further issues included the husband's entitlement to direct the manner and timing of the sale, the wife's ongoing obligation to pay spousal maintenance until the husband received the sale proceeds, and the division of household furniture. The court also considered the appointment of a Registrar to execute documents and the entitlement to specific items of personal property.

Moore J ordered that the husband was to receive the whole of the net proceeds of sale of the H property after the deduction of specified expenses, including agent commissions, legal costs, and an ANZ Bank loan. The wife was directed to facilitate the sale and sign all necessary documents, with the husband having the right to direct the sale's manner and timing. The wife was also ordered to continue paying spousal maintenance of $984 per week until the husband received the full proceeds from the sale of the B1 property. The court further ordered that the husband was entitled to sole possession of a specific Aboriginal painting, and the remaining furniture was to be divided by agreement, with a process outlined for division should agreement not be reached.

Orders

Orders of the court

The husband and the wife are to do all acts and things necessary to pay to the husband the whole of the net proceeds of sale of the B1 property.

The wife is to forthwith do all things and sign all documents necessary to sell the property at H, Queensland and to pay to the husband on settlement of the sale the whole of the net proceeds of sale after payment of the following:

(i) the costs, expenses and commission of the real estate agents acting on the sale of the property;

(ii) the costs, fees and disbursements of the lawyers acting for the parties on the sale of the H property; and

(iii) the amount owing to the ANZ Bank Loan Account No. ….

The husband is entitled to direct the manner and timing of the sale referred to in order 2 here and if the H property is sold by public auction either party may attend at the auction and bid to purchase the property.

Unless otherwise specified by these orders each party is entitled to retain absolutely all property owned by that party and presently in the possession of that party.

The wife is to continue to pay to the husband spouse maintenance in the sum of $984 per week until the husband receives in full the proceeds of sale of the B1 property.

If the wife refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the orders made, a Registrar of the Court at Sydney is appointed pursuant to s.106A to execute the deed or instrument in the name of the wife and to do all other acts and things necessary to give validity and operation to the deed or instrument and that the wife pay the costs of the husband on a lawyer/client basis in relation to the obtaining of the Registrar’s signature.

The husband is entitled to sole possession of the painting known to the parties as “The [G] Painting”, being a painting by an aboriginal artist and purchased from G on 15 April 1994 and the painting is to be delivered to the husband on or before one month from the date of these orders.

Subject to order 7, the furniture contained in the B1 home at separation is to be divided between the parties by agreement and failing agreement according to this process:

(i) the wife is to prepare two lists marked A and B comprising all of the items;

(ii) the lists are to be provided to the husband on or before 30 days from today;

(iii) the husband will be at liberty to select the items on either list A or B within 7 days of receiving the list and notify the wife accordingly;

(iv) on selection of the list the parties will each be entitled absolutely to the items on the relevant lists.

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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