Darley and Darley (No 5) - [2017] FamCA 1182

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 5)

[2017] FamCA 1182

FAMILY LAW – CONTRAVENTION – Where the Application for Contravention is dismissed – Where an oral application was made for interim property orders – Where orders for a Trustee for Sale to be appointed for the sale of the former matrimonial home is made

Family Law Act 1975 (Cth)

APPLICANT:

Mr Darley

RESPONDENT:

Ms Darley

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

25 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

25 July 2017

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

That the Application for Contravention filed on 7 July 2017 be dismissed.
That paragraph 1 of the Orders made 26 May 2017 be discharged.
That Mr F, solicitor of Brisbane, be appointed as Trustee for Sale of the real property situated at B Street, C Town in the State of Queensland, being the whole of the property described as Lot … on SO … bearing Title Reference … (“the C Town property”).
That the wife shall forthwith provide Mr F and the husband with a copy of the written tenancy agreement she asserts that she unilaterally entered into with the tenants and Mr F shall confirm with those tenants that the C Town property is to be sold and that they will be given a month’s written notice that their tenancy of the property will end prior to the settlement of the sale of the property.
That Mr F, if he considers it appropriate, shall honour any existing contractual arrangements with real estate agents entered into by the parties pursuant to the orders of 26 May 2017. Otherwise, the process of the sale is at his discretion as the Trustee for Sale.
That pending the sale of the C Town property or earlier Order of this Court, whilst ever the C Town property remains tenanted, the wife shall ensure that the interest only repayments payable to the mortgagee, the Westpac Banking Corporation, in respect of the liability secured by mortgage registered over the C Town property are paid to that bank as and when they fall due and are payable.
That should the C Town property become untenanted prior to settlement of the sale, repayment of any money to the Westpac Banking Corporation in respect of the liability secured by mortgage registered over the C Town property as it falls due and owing, shall be a matter for negotiation and agreement between the husband, the wife, the Trustee for Sale (Mr F) and the said Bank.
That upon completion of the sale of the C Town property, the proceeds of sale shall be applied as follows:
(a)In the payment of all costs, commissions and expenses of the sale of the C Town property, including the reasonable professional costs and outlays of Mr F in acting as Trustee for Sale of the property and conveyancing costs;
(b)In the discharge of the mortgage encumbering the C Town property;

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 Darley and Darley (No 5)

Details

AGLC: Darley and Darley (No 5) [2017] FamCA 1182
Case: [2017] FamCA 1182
Decision Date

CaseChat Overview and Summary

In *Darley & Darley (No. 5)*, the Family Court of Australia considered an application for contravention and an oral application for interim property orders. The applicant husband alleged that the respondent wife had contravened previous orders made on 26 May 2017, which concerned the sale of the former matrimonial home and the husband's access to personal property stored in a shed on the property. The wife, in turn, had also sought to vary the existing orders regarding access to the shed.

The primary legal issues before the Court were whether the wife had contravened the orders of 26 May 2017, and if not, what interim orders were necessary to facilitate the sale of the former matrimonial home and the resolution of disputes concerning personal property. The Court was also required to consider the parties' demonstrated inability to agree on these matters.

Justice Forrest found that the husband had not established, on the balance of probabilities, that the wife had contravened the previous orders. However, acknowledging the parties' ongoing inability to reach agreement, the Court entertained an oral application for further interim orders. The Court appointed a solicitor, Mr F, as Trustee for Sale of the former matrimonial home, with broad discretion regarding the sale process, including honouring existing agency agreements or proceeding at his discretion. The orders also detailed the application of sale proceeds, the wife's responsibility for mortgage repayments while the property was tenanted, and provisions for the husband's access to the shed, including the potential termination of the tenants' agreement if access was not granted. The Court also ordered the wife to provide the tenancy agreement to the husband.

Orders