Dacey and Dacey and Anor - [2013] FamCA 638

FAMILY COURT OF AUSTRALIA

DACEY & DACEY & ANOR

[2013] FamCA 638

FAMILY LAW ─ JURISDICTION ─ Accrued ─ Whether the Court had accrued jurisdiction to deal with a dispute between the husband and second respondent concerning beneficial ownership of land in a foreign country ─ Where there was no evidence before the Court and no likelihood of evidence being adduced in relation to the laws of the foreign country relating to the acquisition, dealing with, or disposition of land in that country ─ Where there was no evidence before the Court of the manner in which the ownership, as between the husband and the second respondent, on the one hand, and the occupiers on the other, would be determined according to the law of the foreign country ─ Accrued jurisdiction not exercised ─ Husband’s application for a declaration in relation to ownership of land in a foreign country dismissed

FAMILY LAW ─ PROPERTY SETTLEMENT ─ CONTRIBUTIONS ─ Where the wife claimed that she made a greater contribution to homemaking and parenting than did the husband in paid employment ─ Where throughout the marriage the husband generally was in paid employment leaving the traditional homemaking and parenting roles to the wife ─ Where taking into account the contributions of the husband’s family, the husband’s direct and indirect contributions as parent and homemaker, the wife’s contributions as a homemaker and parent and the husband’s contributions in the paid workforce, the Court was of the view that the contributions should be assessed as to 60 per cent in favour of the husband and 40 per cent in favour of the wife

FAMILY LAW ─ PROPERTY SETTLEMENT ─ ADJUSTMENT ─ Where the wife has not been in the paid work force for nearly 20 years, and has no demonstrated work skills ─ Where the husband’s prospects of income and financial assistance from third parties are superior to those of the wife ─ Adjustment made in favour of the wife

Family Law Act 1975 (Cth)
Jurisdiction of Courts (Foreign Land) Act 1989 (NSW)

British South Africa Company v Companhiade Mocambique [1893] AC 602
Habib v Commonwealth of Australia [2010] FCAFC 12
Kennon v Kennon (1997) FLC 92-757

APPLICANT:

Ms Dacey

RESPONDENT:

Mr Dacey

2^NDRESPONDENT:

Mr B

FILE NUMBER:

SYC

5386

2010

DATE DELIVERED:

14 August 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

5 - 6 August 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Mr Fowler

SOLICITOR FOR THE 2^ND RESPONDENT:

In Person

Orders

IT IS ORDERED

That each of the husband and the wife do all acts and things and sign all documents required to effect the sale of the property known as C Street, Suburb D (“The Property”).
(a) The listing price of the Property shall be that amount agreed upon by the parties but if there is no agreement within 30 days the parties shall list the Property for sale at a price as may…

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 Dacey and Dacey and Anor

Details

AGLC: Dacey and Dacey and Anor [2013] FamCA 638
Case: [2013] FamCA 638
Decision Date: 14 August 2013

CaseChat Overview and Summary

This case concerned a dispute between a husband and wife regarding property settlement, heard by Rees J. The husband also sought orders against a second respondent concerning beneficial ownership of land located in a foreign country.

The primary legal issues before the Court were whether it possessed accrued jurisdiction to determine the dispute concerning the foreign land, and how the parties' contributions and future needs should be assessed for the purposes of property settlement. The Court was required to consider the wife's claim of greater homemaking and parenting contributions and the husband's financial prospects relative to the wife's.

Rees J determined that the Court lacked accrued jurisdiction to deal with the foreign land dispute, as there was insufficient evidence regarding the foreign country's laws on land ownership and disposition, and therefore declined to exercise jurisdiction. In relation to the property settlement, the Court assessed the parties' contributions, acknowledging the wife's primary role in homemaking and parenting while the husband was in paid employment, but also considering the husband's family contributions and his direct and indirect contributions. The Court found contributions to be 60 per cent in favour of the husband and 40 per cent in favour of the wife. An adjustment was made in favour of the wife due to her prolonged absence from the paid workforce and limited work skills, contrasted with the husband's superior income prospects and potential for third-party financial assistance.

The Court ordered the sale of a specified property, with the proceeds to be applied first to sale costs, then 45 per cent to the wife, followed by a payment of $36,991 to the wife, with the remaining balance to the husband. The wife was also to return specific items to the husband and was entitled to household goods and jewellery in her possession. The wife was ordered to transfer her entitlements in certain companies to the husband, who would indemnify her. The husband's application against the second respondent was dismissed.

Orders

Orders of the court

IT IS ORDERED

That each of the husband and the wife do all acts and things and sign all documents required to effect the sale of the property known as C Street, Suburb D (“The Property”).

(a) The listing price of the Property shall be that amount agreed upon by the parties but if there is no agreement within 30 days the parties shall list the Property for sale at a price as may be recommended by the real estate agent with whom the Property is listed for sale.

(b) The Property shall be listed with E Real Estate, Suburb F, through Mr G or such other real estate agent as may be agreed upon by the parties (“the agent”), for sale upon the following terms:

(i) In default of agreement between the parties within 30 days as to the method of sale of the Property the parties shall accept, and act upon, the recommendations of the agent.

(ii) For the purposes of any public auction of the Property, the reserve price shall be that amount agreed upon between the parties and in the absence of agreement by the date which is 14 days prior to the auction date, shall be determined by a registered real estate valuer. In default of agreement by the parties by the date which is 7 days prior to the auction date as to the valuer to be appointed for this purpose then the parties shall engage such valuer as is recommended by the agent on the request of either party.

(iii) The parties shall each pay and be responsible for payment of one half of any marketing, advertising and/or auction expenses payable to the agent.

(iv) Both parties shall attend any auction of the property and if the Property is not sold for a price not less than the reserve price then the parties shall use their best endeavours to reach agreement on a sale price for the property with the underbidder.

(c) If an offer is made to purchase the Property on reasonable terms and the parties are in default of agreement as to whether or not the amount offered to purchase the Property should be accepted then the parties shall engage a registered real estate valuer to determine the fair market value of the Property and if the offer made is not less than the fair market value of the Property the parties shall accept the offer. In default of agreement by the parties as to the valuer to be appointed for this purpose then the parties shall engage such valuer as is recommended by the agent on the request of either party.

That, until settlement of the sale, the wife be responsible to pay council and water rates and building insurance.

That the husband and wife do all acts and things and sign all documents as may be required to cause the proceeds of sale of the Property to be applied as follows:

a. Firstly, to pay all costs, commissions and expenses of the sale.

b. To pay to the wife 45 per cent of the balance remaining.

c. To pay to the wife the sum of $36,991.

d. To pay the balance then remaining to the husband.

That the wife use her best endeavours to locate and make available for collection by the husband his rosewood icon and any hand or power tools in her possession.

That the wife be solely entitled to the household goods and jewellery in her possession.

That the wife execute all documents tendered to her by the husband to cause her entitlements to dividends declared in her favour by H Pty Ltd and I Pty Ltd, and her shares in H Pty Ltd, to be transferred to the husband and that the husband indemnify the wife and hold her safe in respect of any and all liability arising out of her being a shareholder of H Pty Ltd.

That the application of the husband seeking orders against the Second Respondent be dismissed.

That the Response of the Second Respondent be dismissed.

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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