DAVIDA & DAVIDA - [2011] FamCAFC 38

FAMILY COURT OF AUSTRALIA

DAVIDA & DAVIDA

[2011] FamCAFC 38

FAMILY LAW - APPEAL - PROPERTY SETTLEMENT – where the Federal Magistrate erred in his calculation of the parties’ assets and liabilities – where the Federal Magistrate erred in his assessment of the husband’s initial non-financial contributions – appealable error established – re-determination.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Davida

RESPONDENT:

Mrs Davida

FILE NUMBER:

BRC

2360

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

2 March 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, O'Ryan & Ainslie-Wallace JJ

HEARING DATE:	1 October 2010
DATE OF LAST SUBMISSIONS:	7 October 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

12 February 2010

LOWER COURT MNC:

[2010] FMCAfam 102

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr T. Matthews

SOLICITOR FOR THE APPELLANT:

Berek & Associates

COUNSEL FOR THE RESPONDENT:

Ms J.D. Hogan

SOLICITOR FOR THE RESPONDENT:

Murdoch Lawyers

Orders

That the appeal against the order of Federal Magistrate Coates made on 12 February 2010 be allowed.
That the order be set aside and in its place the following order be made:
(1) The husband and wife execute all documents and writings and do all acts and things necessary to effect the sale of the former matrimonial home by private treaty and in particular shall:
(a)Place the home with such real estate agent as the parties may agree to appoint and in default of an agreement such real estate agent as the C.E.O. of the Real Estate Institute of Queensland shall appoint (hereinafter called the real estate agent) for the sale at the earliest possible date;
(b)Execute all documents requested by the real estate agent for the sale of the home by private treaty;
(c)Request the real estate agent to recommend a reserve price to be placed on the home for the purpose of the sale and accept such recommended reserve price;
(d)Pay to the real estate agent any sums requested for advertising expenses in relation to the sale;
(e)Give such instructions as are necessary to a solicitor for the preparation of a contract for sale and for the contract for sale to be made available to the real estate agent;
(f)Negotiate with any potential buyers;
(g)Execute the contract for sale;
(h)Co-operate in any way with the real estate agent in relation to the sale of the home including making a key available, allowing inspection of the home at all times requested by the real estate agent and ensuring that the home is in a neat and clean condition at the time of inspection by prospective purchasers;
(i)Execute all other documents necessary to complete the sale.
(2)In the event that the former matrimonial home is not sold by private treaty within three months of listing the parties do all acts and things necessary for the sale of the home by auction and in particular shall:
(a)Place the home with such auctioneer as the parties may agree to appoint and in default of an agreement such auctioneer…

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 DAVIDA & DAVIDA

Details

AGLC: DAVIDA & DAVIDA [2011] FamCAFC 38
Case: [2011] FamCAFC 38
Decision Date: 2 March 2011

CaseChat Overview and Summary

In the case of Davida and Davida, the Federal Court of Australia was presented with a dispute regarding the sale of a former matrimonial home and the division of assets following a divorce. The husband and wife, Davida, were unable to reach an agreement on how to proceed with the sale of their home and the subsequent distribution of assets. The case was heard by the Full Court of Australia, which was tasked with resolving the legal issues surrounding the sale of the former matrimonial home and the division of the remaining assets.

The court had to determine whether the Federal Magistrate's order, which required the parties to sell the former matrimonial home and divide the proceeds and remaining assets, was appropriate. The issues included whether the sale of the home should be conducted by private treaty or auction, the division of the proceeds and assets, and the allocation of specific items of property to each party. The court also had to consider whether the order adequately addressed the need for the parties to co-operate in the sale process and the potential consequences of their failure to do so.

The Full Court of Australia found that the Federal Magistrate's order was not sufficiently detailed and did not provide clear instructions for the parties to follow in the sale of the former matrimonial home. The court emphasised the need for the parties to co-operate in the sale process and the importance of setting specific timelines and procedures for the sale. The Full Court allowed the appeal, set aside the original order, and made a new order that required the parties to sell the home by private treaty or auction, depending on the outcome, and provided detailed instructions for the sale process and the division of the proceeds and assets. The court also emphasised the need for the parties to execute all necessary documents and co-operate with each other in the sale process.

The court made an order allowing the appeal against the order of the Federal Magistrate and setting aside the original order. In its place, the court made a new order detailing the sale process and the division of the proceeds and assets. The court ordered that the former matrimonial home be sold by private treaty or auction, depending on the outcome, and provided specific instructions for the sale process, including the appointment of a real estate agent or auctioneer, the negotiation of a reserve price, and the payment of advertising expenses. The court also ordered the division of the proceeds and assets, including the allocation of specific items of property to each party, and the disbursement of the proceeds in a specific order of priority. The court further ordered that the parties execute all necessary documents and co-operate in the sale process and that the Registrar of the Federal Magistrates Court of Australia be empowered to sign documents and direct actions if either party refused or neglected to do so within 14 days of a demand.

Orders

Orders of the court

That the appeal against the order of Federal Magistrate Coates made on 12 February 2010 be allowed.

That the order be set aside and in its place the following order be made:

(1) The husband and wife execute all documents and writings and do all acts and things necessary to effect the sale of the former matrimonial home by private treaty and in particular shall:

(a) Place the home with such real estate agent as the parties may agree to appoint and in default of an agreement such real estate agent as the C.E.O. of the Real Estate Institute of Queensland shall appoint (hereinafter called the real estate agent) for the sale at the earliest possible date;

(b) Execute all documents requested by the real estate agent for the sale of the home by private treaty;

(c) Request the real estate agent to recommend a reserve price to be placed on the home for the purpose of the sale and accept such recommended reserve price;

(d) Pay to the real estate agent any sums requested for advertising expenses in relation to the sale;

(e) Give such instructions as are necessary to a solicitor for the preparation of a contract for sale and for the contract for sale to be made available to the real estate agent;

(f) Negotiate with any potential buyers;

(g) Execute the contract for sale;

(h) Co-operate in any way with the real estate agent in relation to the sale of the home including making a key available, allowing inspection of the home at all times requested by the real estate agent and ensuring that the home is in a neat and clean condition at the time of inspection by prospective purchasers;

(i) Execute all other documents necessary to complete the sale.

(2) In the event that the former matrimonial home is not sold by private treaty within three months of listing the parties do all acts and things necessary for the sale of the home by auction and in particular shall:

(a) Place the home with such auctioneer as the parties may agree to appoint and in default of an agreement such auctioneer as the C.E.O. of the Real Estate Institute of Queensland shall appoint (hereinafter called the “auctioneer”) for the sale at the earliest possible date;

(b) Execute all documents requested by the auctioneer for the sale of the home by auction;

(c) Request the auctioneer to recommend a reserve price to be placed on the home for the purpose of the auction sale and accept such recommended reserve price;

(d) Pay to the auctioneer any sums requested for advertising expenses in relation to the auction;

(e) Give such instructions as are necessary to a solicitor for the preparation of a contract for sale and for the contract for sale to be made available to the auctioneer prior to the auction;

(f) Attend at the auction sale of the home and negotiate with the highest bidder in the event that the reserve price is not reached; the parties agree to accept the advice of the auctioneer as to the acceptance of the price less than the reserve price;

(g) Execute the contract for sale;

(h) Co-operate in any way with the auctioneer in relation to the auction of the home including making a key available, allowing inspection of the home at all times requested by the auctioneer and ensuring that the home is in a neat and clean condition at the time of inspection by prospective purchasers;

(i) Execute all other documents necessary to complete the sale.

(3) In the event the former matrimonial home is not sold by auction in accordance with paragraph 2 of this Order the parties be at liberty to apply to the Federal Magistrates Court of Australia for further orders in relation to the sale of the former matrimonial home upon providing the other party with 48 hours notice of their intention to do so.

(4) Upon completion of the sale of the former matrimonial home, the proceeds thereof be disbursed in the following manner and priority:

(a) All payments required to discharge and release the Suncorp Metway mortgage (registered mortgage number …);

(b) All payments owing to the real estate agent and/or auctioneer pursuant to the contract of sale for the former matrimonial home;

(d) A payment of 42.71 per cent of the balance remaining to the wife;

(e) The balance (57.29 per cent) to the husband.

(5) Contemporaneously with and so as to enable the sale of the former matrimonial home to be completed the husband shall pay from his share of the net proceeds of sale of the former matrimonial home all amounts required to discharge and release the Suncorp Metway overdraft facility (registered mortgage number …).

(6) The wife retain to the exclusion of the husband:

(a) The Honda motor vehicle;

(b) Bank accounts, furniture and personal items in her possession;

(d) Her credit card liability.

(7) The husband retain to the exclusion of the wife:

(a) The Holden utility vehicle;

(b) The KTM motorcycle;

(d) The plant and tools in his possession;

(e) Bank accounts, furniture and personal items in his possession; and

(f) His credit card liability.

(8) The husband and wife cause the funds held in the Australian Scholarships Group Account (member number …) to be held in joint names at an agreed bank, to be used for the children’s education unless there is agreement in writing otherwise.

(9) The husband retain any superannuation interests held solely in his name to the exclusion of the wife.

(10) The wife retain any superannuation interests held solely in her name to the exclusion of the husband.

(11) Unless otherwise specified in this Order:

(a) The husband and the wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively;

(b) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.

(12) The Husband and the Wife execute all deeds or instruments and do all acts and things necessary to give validity and operation to the deed or instrument to give effect to this Order.

(13) If either party shall refuse or neglect to sign any document or do any such thing as may be reasonably required to give effect to this Order within 14 days of the service of a demand upon him or her to execute such document or to do such thing, pursuant to s.106A of the Family Law Act 1975 (Cth) the Registrar of the Federal Magistrates Court of Australia at Brisbane is empowered to sign such document and to direct such things to be done in the name of the party in default.

That the appeal be listed before the Full Court sitting at Brisbane on 10 March 2011 at 2:15 pm for the making of submissions in relation to the costs of the appeal.

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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