Dalby and Dalby - [2017] FCCA 3389

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALBY & DALBY

[2017] FCCA 3389

Catchwords:
FAMILY LAW – Property orders.

Legislation:

Family Law Act 1975 (Cth)

Bevan v Bevan [2013] FamCAFC 116
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro [1992] FamCA 64
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Kennon v Kennon [1997] FamCA 27
Lynam v Director-General of Social Security (1983) 52 ALR 128
Sha & Cham [2017] FamCAFC 161
Stanford v Stanford [2012] HCA 52
Whinton & Whinton (2014) FamCA 102

Applicant:

MR DALBY

Respondent:

MS DALBY

File Number:

NCC 1314 of 2014

Judgment of:

Judge Myers

Hearing dates:

4–5 July 2016, 21–24 November 2016, 5–7 July 2017, 14–17 August 2017

Date of Last Submission:

17 August 2017

Delivered at:

Sydney

Delivered on:

7 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr Bateman

Solicitors for the Applicant:

Mr Fryatt

Counsel for the Respondent:

Mr Sundstorm

Solicitors for the Respondent:

Ms Clarke

ORDERS

Within 28 days from the making of these orders, the Respondent wife (“the wife”) do all acts and things and sign all documents necessary to transfer to the Applicant husband (“the husband”) all of her right, title and interest in the property situated at and known as Property A, delivering vacant possession to the husband.
Simultaneous with compliance with order 1, above, the husband pay to the wife the sums of $89,714.36 and $3,262.24.
Simultaneous with compliance with orders 1 and 2, above, the wife will do all acts and things as to refinance the (omitted) Bank Investment Loan and the (omitted) Bank Home Loan listed as items 24 and 26 within the joint balance sheet, forming Exhibit “R” in the proceedings, so as to release the husband as borrower or guarantor in respect of such loans and to release from such loans security over the said property at Property A.
The husband transfer to the wife his interest in the 122 (omitted) shares held in their joint names.
Within 7 days from the making of these orders, the wife make available for collection by the husband’s nominee (excluding his children) the following items:
(a)The husband’s passport;
(b)One ladder;
(c)One set of car ramps;
(d)One old record player and one old set of scales;
(e)One tent and camping gear;
(f)Two boxes of photos and one pile of old books;
(g)Two crockery bowls, 2 crockery plates and 2 pottery pots;
(h)One old mantel clock;
(i)One little rocking horse;
(j)Two broken shovels;
(k)One bag of adult movies belonging to the husband;
(l)Two work benches, with one vice attached; and
(m)A 2-door cupboard in the garage at Property A and the contents contained, therein.
Within 14 days from the making of these orders, the wife shall request from her son or any third party, the return of any items of furniture of furnishings she has loaned or provided to be held on trust for her.
Within 35 days from the making of these orders, the parties each attend at the other’s…

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 Dalby and Dalby

Details

AGLC: Dalby and Dalby [2017] FCCA 3389
Case: [2017] FCCA 3389
Decision Date: 7 December 2017

CaseChat Overview and Summary

In the matter of *Dalby and Dalby*, Judge Myers of the Federal Circuit Court of Australia made orders concerning the division of property and other assets between the applicant husband and the respondent wife. The dispute centred on the equitable distribution of various assets following the breakdown of the marriage.

The court was required to determine how the parties' property, including real estate, financial assets, and personal belongings, should be divided. This involved addressing the transfer of a property, the payment of specific sums of money, the refinancing of loans, the division of shares, and the allocation of numerous personal items and furniture. The court also needed to establish a mechanism for the equitable division of remaining furniture and furnishings and to make provision for the enforcement of its orders.

Judge Myers ordered the wife to transfer her interest in a property known as Property A to the husband, who was to pay the wife specific sums of money simultaneously. The wife was also ordered to refinance certain bank loans to release the husband from his obligations and security over Property A. The husband was to transfer his interest in jointly held shares to the wife. The orders further detailed the return of specific personal items to the husband by the wife, and established a process for the parties to divide the remaining furniture and furnishings at each residence by coin toss and alternating selection, with an injunction preventing the disposal of items pending this division. Each party was declared the sole beneficial owner of assets standing in their name or possession, with the Registrar appointed to execute documents if a party failed to do so.

Orders

Orders of the court

Within 28 days from the making of these orders, the Respondent wife (“the wife”) do all acts and things and sign all documents necessary to transfer to the Applicant husband (“the husband”) all of her right, title and interest in the property situated at and known as Property A, delivering vacant possession to the husband.

Simultaneous with compliance with order 1, above, the husband pay to the wife the sums of $89,714.36 and $3,262.24.

Simultaneous with compliance with orders 1 and 2, above, the wife will do all acts and things as to refinance the (omitted) Bank Investment Loan and the (omitted) Bank Home Loan listed as items 24 and 26 within the joint balance sheet, forming Exhibit “R” in the proceedings, so as to release the husband as borrower or guarantor in respect of such loans and to release from such loans security over the said property at Property A.

The husband transfer to the wife his interest in the 122 (omitted) shares held in their joint names.

Within 7 days from the making of these orders, the wife make available for collection by the husband’s nominee (excluding his children) the following items:

(a) The husband’s passport;

(b) One ladder;

(d) One old record player and one old set of scales;

(e) One tent and camping gear;

(f) Two boxes of photos and one pile of old books;

(g) Two crockery bowls, 2 crockery plates and 2 pottery pots;

(h) One old mantel clock;

(i) One little rocking horse;

(j) Two broken shovels;

(k) One bag of adult movies belonging to the husband;

(l) Two work benches, with one vice attached; and

(m) A 2-door cupboard in the garage at Property A and the contents contained, therein.

Within 14 days from the making of these orders, the wife shall request from her son or any third party, the return of any items of furniture of furnishings she has loaned or provided to be held on trust for her.

Within 35 days from the making of these orders, the parties each attend at the other’s individual residence. While at each residence, the parties shall toss a coin, with the husband to call the toss at the wife’s residence and the wife at the husband’s residence. The winner of the toss shall, thereafter, select an item of furniture and the other party shall then select an item of furniture. The parties will, thereafter, take turns selecting individual items of furniture and furnishings. The parties shall place stickers in a designated colour on the items they have selected, until such time as all of the furniture and furnishings at each party’s residence have been divided between them.

The parties will, thereafter, remove those items they have selected, pursuant to order 7, above into their possession, away from the other party’s residence.

Pending compliance with orders 7 and 8, above, each party shall be prohibited by injunction from destroying, parting with, giving away or selling any items of furniture or furnishing in their possession as at the date of these orders.

10.

Otherwise as provided for in these orders, each party be declared to be the sole beneficial owner to the exclusion of the other party, of any real property, funds in bank accounts, superannuation, motor vehicles, shares in public or private companies, businesses, tools and the like that stands in that party’s name or in that party’s possession as at the date of these orders.

11.

If either party refuses or neglects to sign (within 14 days of a written request to do so) any document necessary to give effect to the terms of these orders, the Registrar of the Newcastle Registry of the Federal Circuit Court of Australia is hereby appointed, pursuant to the provisions of the Family Law Act 1975 (Cth), to execute such documents on behalf of such party.

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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