DARLEY & DARLEY - [2017] FamCA 347

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY

[2017] FamCA 347

FAMILY LAW – PROPERTY SETTLEMENT – Interim –Where the matter has been listed for final property adjustment proceedings – Where it is ordered that the parties sell the former matrimonial home – Where the parties have four months to sell the former matrimonial home by private treaty prior to putting the property to auction.

FAMILY LAW – PROPERTY SETTLEMENT – Interim – Personal property – Where the wife is restrained from taking any item of personal property from the former matrimonial home – Where the husband is entitled to remove contents of the shed of the former matrimonial home – Where the husband is to provide to the wife original DVD recordings.

Family Law Act 1975 (Cth)
Family Law Rules 2004

APPLICANT:

Mr Darley

RESPONDENT:

Ms Darley

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

26 May 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

22 May 2017

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

IT IS ORDERED, UNTIL FURTHER ORDER

Sale of Real Property

That the Applicant Husband (“the Husband”) and the Respondent Wife (“the Wife”) shall do all such acts and things as may be necessary to sell their former matrimonial home 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 … (hereinafter referred to as “the C Town property”) and that sale shall be conducted as follows:
(i)The Wife forthwith inform the current tenants in writing that their current lease will not be renewed at its expiration as the C Town property is being sold and that they will thereafter be on a month to month tenancy, terminable on a month’s written notice by the tenants or the owners at any time;
(ii)The C Town property be forthwith listed for sale with D Real Estate of C Town and Mr F of C Town Real Estate, with each of the Husband and the Wife signing all such documents as might be necessary to give each of those real estate agencies listing rights;
(iii)The C Town property be listed for sale at $589,000, or as might otherwise be agreed in writing between the Husband and the Wife after consultation with the listing agents, with the husband and wife to accept any offer to purchase the property for a figure in excess of $550,000 or any other amount as may be agreed between them;
(iv)All other terms of the contract of sale shall be as agreed between the Husband and Wife or, failing agreement, as ordered by the Court;
(v)Should a contract for sale of the C Town property not be obtained within four calendar months of the date of these orders then the C Town property shall be sold at a public auction that takes place before the end of October, 2017, with the auctioneer to be chosen by agreement between…

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 & DARLEY

Details

AGLC: DARLEY & DARLEY [2017] FamCA 347
Case: [2017] FamCA 347
Decision Date: 26 May 2017

CaseChat Overview and Summary

In the matter of *Darley & Darley*, Forrest J of the Family Court of Australia made interim orders concerning the property settlement between the Applicant Husband and the Respondent Wife. The dispute centred on the sale of the former matrimonial home and the division of personal property.

The court was required to determine the terms and conditions for the sale of the former matrimonial home, including the listing price, reserve price, and the timeline for sale by private treaty or auction. Additionally, the court had to address the disposition of personal property, specifically the wife's restraint from removing items from the home and the husband's entitlement to remove contents from a shed, as well as the provision of original DVD recordings to the wife. The court also considered the parties' ongoing disclosure obligations.

Forrest J ordered that the former matrimonial home be sold, with specific instructions regarding its listing and sale by private treaty within four months, or by auction thereafter. The court detailed the process for setting the sale price and reserve price, and outlined procedures for subsequent auctions if the property remained unsold. Regarding personal property, the wife was restrained from removing items from the home, while the husband was permitted to remove the contents of a shed, with an independent valuer to document the items. The husband was also ordered to provide original DVD recordings to the wife. The court also reiterated the parties' duty of disclosure under the Family Law Rules 2004.

The orders provided for the application of sale proceeds, including costs, mortgage discharge, and investment pending finalisation of property adjustment proceedings. The court also appointed the Senior Registrar to execute documents on behalf of a party who refused or neglected to comply with the orders, pursuant to s 106A of the *Family Law Act 1975*.

Orders

Orders of the court

IT IS ORDERED, UNTIL FURTHER ORDER

Sale of Real Property

That the Applicant Husband (“the Husband”) and the Respondent Wife (“the Wife”) shall do all such acts and things as may be necessary to sell their former matrimonial home 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 … (hereinafter referred to as “the C Town property”) and that sale shall be conducted as follows:

(i) The Wife forthwith inform the current tenants in writing that their current lease will not be renewed at its expiration as the C Town property is being sold and that they will thereafter be on a month to month tenancy, terminable on a month’s written notice by the tenants or the owners at any time;

(ii) The C Town property be forthwith listed for sale with D Real Estate of C Town and Mr F of C Town Real Estate, with each of the Husband and the Wife signing all such documents as might be necessary to give each of those real estate agencies listing rights;

(iii) The C Town property be listed for sale at $589,000, or as might otherwise be agreed in writing between the Husband and the Wife after consultation with the listing agents, with the husband and wife to accept any offer to purchase the property for a figure in excess of $550,000 or any other amount as may be agreed between them;

(iv) All other terms of the contract of sale shall be as agreed between the Husband and Wife or, failing agreement, as ordered by the Court;

(v) Should a contract for sale of the C Town property not be obtained within four calendar months of the date of these orders then the C Town property shall be sold at a public auction that takes place before the end of October, 2017, with the auctioneer to be chosen by agreement between the Husband or the Wife or, in default of agreement, to be the person nominated by the Chairman of the Real Estate Institute of Queensland;

(vi) The reserve price at the auction shall be such amount as is agreed between the Husband and the Wife after consultation with the auctioneer or $540,000, whichever is the lesser figure;

(vii) In the event that the C Town property is not sold by auction or private negotiation at the auction or within fourteen (14) days of the said auction date, unless otherwise agreed between the Husband and the Wife or ordered by this Court, a second auction shall take place within a further twenty-eight (28) days of the expiry of the said fourteen (14) day period with the reserve price to be as agreed between the parties or, in default of agreement, as determined by the auctioneer;

(viii) The Husband and the Wife shall ensure that vacant possession of the C Town property is given to the purchasers on the date of settlement of the sale;

(ix) 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;

(x) 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 and the said Bank;

(xi) Subject to the filing within fourteen (14) days of these Orders of an affidavit in which he consents so to act, Mr F, solicitor of Brisbane, shall act for the Husband and the Wife as solicitor on the conveyance of the said property, and in default of his consent it shall be a solicitor nominated by the CEO of the Queensland Law Society;

(xii) 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, solicitor, in acting for the Husband and Wife on the conveyance;

(b) In the discharge of the mortgage encumbering the C Town property;

(c) To be invested by Mr F on trust for the Husband and the Wife in an interest bearing account pending finalisation of the current property adjustment proceedings between the Husband and the Wife or earlier Order of this Court;

(xiii) Pending settlement of the sale of the C Town property the payment of the costs of any maintenance, repairs or other work undertaken to better present the C Town property for sale shall be as agreed in writing between the Husband and the Wife or, in default of agreement, as might be further ordered by this Court.

Personal Property

That the Wife is restrained and an injunction hereby restrains her from taking any item of personal property from the C Town property not already removed by her prior to the date of these Orders.

That prior to the settlement of the sale of the C Town property, the Husband shall attend at the C Town property by arrangement with the tenants, if they are still in occupation, but at his convenience if the tenants have already given up vacant possession to the Husband and the Wife, and he shall be entitled to remove from the 12m x 9m shed at the rear of the property all of the contents of that shed at his sole expense in the first instance, with an employee or agent of G Valuers to be present with the husband when he attends at the property to remove those contents to document and record all of the items of personal property removed by the Husband and to check it off against the list of those items of personal property previously provided to the Husband and the Wife in the valuation already done by G Valuers in these proceedings, with the Husband to pay the costs of that employee or agent’s attendance in the first instance, with the ultimate decision as to who bears those costs to be a matter for the Trial Judge in this matter.

That the Husband shall be responsible for retaining possession of or storing at his expense all of the items of personal property that he removes from the C Town property pursuant to Order 3 hereof pending the determination of the final disposition of that personal property by the Trial Judge.

That in addition to whatever evidence the Husband shall file as directed in the property adjustment proceedings currently listed for trial before Hogan J in October 2017, the Husband shall also file and serve an affidavit in which he includes a schedule of the items of personal property that he removes from the C Town property, the value attributed by G Valuers to that item in their original valuation, whether the item was included in that original valuation at all, whether he wants to retain the item of property as his sole property at the G Valuers original valuation and, if not, what he proposes happens with the item. That schedule shall also include any item that was included on the list of personal property originally valued by G Valuers that was not in the shed when he attended to remove the items as well as the value originally ascribed to it.

That the Husband shall cause an affidavit of the employee or agent of G Valuers who attends with him when he attends to remove the items of personal property from the shed at the C Town property to be filed in these proceedings, in which the employee or agent confirms his or her observations of what the Husband removes from the property and how that relates to the list of personal property originally valued by G Valuers in this matter.

That in addition to whatever evidence the Wife shall file as directed in the property adjustment proceedings currently listed for trial before Hogan J in October 2017, the Wife shall also file and serve an affidavit in which she includes a list of the items of personal property that she wishes to retain as her sole property by reference to the list of items originally valued by G Valuers and a list of those items that she does not wish to retain as her sole property and, if not, what she proposes happens with the item.

That the Husband shall provide to at least one of the real estate agents with whom the C Town property is listed for sale all keys, gate openers and shed openers relating to the C Town property as are in his possession.

That after the Husband has removed the items of personal property from the shed at the C Town property he shall cause delivery to the Wife of the original DVD recording of the christening celebration for the child, X, the original DVD recording of the wedding celebration of the Husband and the Wife, and the original Compact Disc storing the photographs of the said christening and the said wedding, such discs to be in an undamaged, working condition. In addition, and at the same time, the Husband shall copy to any computer hard drive provided to him in advance by the Wife, copies of any photos of the children of the parties as he has in his possession.

Disclosure

10.

That in compliance with the duty of disclosure clearly set out in Rule 13.04 and Rule 13.07 of the Family Law Rules 2004, on or before 30 June 2017, each of the Husband and the Wife shall file and serve an affidavit in which they list all documents he or she is required to disclose pursuant to that duty and by 31 August 2017, each of the Husband and the Wife shall provide the other with copies of any such documents as might be requested in writing by the other party prior to 31 July 2017, with the requesting party to pay the reasonable costs of the provision of those copies.

The Execution of any Documents necessary to give effect to these Orders

11.

That the Husband and the Wife shall sign all documents that are necessary to give effect to these Orders and should either of them refuse or neglect to comply with this Order then pursuant to s 106A of the Family Law Act 1975, the Senior Registrar of the Brisbane Registry of this Court is appointed to sign any such document in the name of the Husband or the Wife, whichever one of them it is who has refused or neglected to comply with the Order with the Senior Registrar being entitled to act on this Order on the filing and service of an affidavit by the party who seeks to have the Senior Registrar sign a document on behalf of the defaulting party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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