DESCAS & DESCAS - [2013] FMCAfam 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DESCAS & DESCAS

[2013] FMCAfam 69

FAMILY LAW – Property – application for property settlement – where wife claimed former matrimonial home was haunted – whether value of former matrimonial home affected by alleged haunting – credibility issues – where parties have one child – where child lives with the wife – whether the wife made a greater contribution by caring for child with a learning disability – whether child’s disability sufficiently established by evidence – whether disability to be considered as a factor under Family Law Act 1975 (Cth) s.75(2).

PRACTICE AND PROCEDURE – Application to re-open case – where wife claims that the husband failed to make a full and frank disclosure of his superannuation interests.

Family Law Act 1975 (Cth), ss.75, 79

Al-Sadikh & Al-Sadikh [2007] FamCA 716
Black & Kellner (1992) 15 Fam LR 343; FLC 92-287
CKC & RRC [2006] FamCA 1290; (2006) FLC 299
Erdem & Ozsoy [2012] FMCAfam 1323
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; FLC 93-143
Jones v Dunkel (1959) 101 CLR 298
Keegan & Hart [2007] FamCA 111
Lachlan & Lachlan [2008] FamCA 455
Stanford v Stanford [2012] HCA 52
Williams v Williams (1985) 10 Fam LR 335; FLC 91-628

Applicant:

MR DESCAS

Respondent:

MS DESCAS

File Number:

SYC 6968 of 2009

Judgment of:

Scarlett FM

Hearing dates:

19 & 20 May, 19 December 2011

Date of Last Submission:

19 December 2011

Delivered at:

Sydney

Delivered on:

30 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Livingstone

Solicitors for the Applicant:

Alidenes & Company

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

Doolan Wagner & Callaghan

ORDERS

Within four (4) months from the date of these Orders, the following shall simultaneously occur:
(a)The Applicant Husband must transfer to the Respondent Wife all of his right title and interest in the property situate at and known as Property D in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier [omitted];
(b)The Husband and Wife must do all acts and things and sign all documents necessary at the Wife’s expense to cause to be discharged and refinanced into her sole name the mortgage secured against the title to the property at Property D aforesaid being registered mortgage number [omitted] to Westpac Banking Corporation and the Wife must indemnify and keep indemnified the Husband from all any obligation the Husband may have pursuant to the mortgage to Westpac Banking Corporation;
(c)The Wife must pay to the Husband by way of settlement of property the sum of $189,288.77.
In the event that the Wife defaults in making the payment to the Husband in accordance with Order (1)(c) within four (4) months of the date of these Orders, then the Husband and Wife must forthwith do all acts and things and sign all documents necessary so as to effect the sale of the property at Property D for the best price reasonably…

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 DESCAS & DESCAS

Details

AGLC: DESCAS & DESCAS [2013] FMCAfam 69
Case: [2013] FMCAfam 69
Decision Date: 30 January 2013

CaseChat Overview and Summary

The matter in Descas & Descas involved a property settlement dispute between a husband and wife. The wife claimed that the former matrimonial home was haunted, which she argued should affect the value of the property. The wife also asserted that she made a greater contribution to the relationship by caring for their child, who had a learning disability. The husband disputed these claims, particularly regarding the alleged haunting and the child's disability. The court had to determine whether the wife's claims about the haunting and her care for the child with a disability were credible, and whether these factors should be considered in the property settlement under the Family Law Act 1975 (Cth). Additionally, the wife applied to reopen the case, alleging that the husband had not fully disclosed his superannuation interests.

The court examined the evidence regarding the haunting and found that the wife's claims lacked credibility. The court concluded that the alleged haunting did not affect the property's value. Regarding the wife's care for the child, the court determined that while the wife had made a significant contribution, the child's disability was not sufficiently established by the evidence. The court noted that under section 75(2) of the Family Law Act, the disability of a child should be considered if it is relevant to the contribution made by a party. However, in this case, the evidence did not convincingly establish the child's disability. The court also dismissed the wife's application to reopen the case based on the husband's alleged failure to disclose superannuation interests, finding that there was no merit in the application.

The court ordered that within four months, the husband must transfer his interest in the former matrimonial home to the wife, and the wife must pay the husband $189,288.77 as part of the property settlement. If the wife failed to make the payment, the court mandated a sale of the property under specific terms. The court further ordered that the proceeds from the sale, after expenses, be divided 65% to the wife and 35% to the husband. Each party was to retain their respective superannuation interests and bank accounts, and the wife was to retain the Toyota Corolla motor car. Each party was to be responsible for their own credit card debt and indemnify the other party against claims arising from such debt. The court also set a timeframe for applications for costs.

Orders

Orders of the court

Within four (4) months from the date of these Orders, the following shall simultaneously occur:

(a) The Applicant Husband must transfer to the Respondent Wife all of his right title and interest in the property situate at and known as Property D in the State of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier [omitted];

(b) The Husband and Wife must do all acts and things and sign all documents necessary at the Wife’s expense to cause to be discharged and refinanced into her sole name the mortgage secured against the title to the property at Property D aforesaid being registered mortgage number [omitted] to Westpac Banking Corporation and the Wife must indemnify and keep indemnified the Husband from all any obligation the Husband may have pursuant to the mortgage to Westpac Banking Corporation;

In the event that the Wife defaults in making the payment to the Husband in accordance with Order (1)(c) within four (4) months of the date of these Orders, then the Husband and Wife must forthwith do all acts and things and sign all documents necessary so as to effect the sale of the property at Property D for the best price reasonably obtainable in the following manner:

(a) The Husband and Wife must do all things and sign all necessary documents to instruct a solicitor to act on the conveyance of the property at Property D within twenty-one (21) days of the date of the default;

(b) The Husband and Wife must do all things and sign all necessary documents to appoint a Real Estate Agent to conduct the sale of the property at Property D within twenty-one (21) days of the date of the default;

(c) The listing price for sale of the property at Property D shall be $750,000.00 unless otherwise agreed by the parties;

(d) In the event that the property at Property D is not sold within sixteen (16) weeks of the date that the property is listed for sale then the Husband and Wife must do all things and sign all necessary documents to sell the property at Property D by public auction;

(e) The reserve price for the sale by public auction of the property at Property D shall be as agreed between the Husband and Wife fourteen (14) days prior to the date that the property is auctioned or in default of such agreement the Husband and Wife shall do all things and sign all necessary documents to request the President of the Real Estate Institute of New South Wales to nominate a reserve price for the auction of the property at Property D and any cost associated with obtaining such nomination are to be paid equally by the parties;

(f) The Husband and Wife must do all things and sign all necessary documents to cause the Real Estate Agent to auction the property within six (6) weeks of the date referred to in Order (2)(d) above;

(g) The Husband and Wife must do all things and sign all necessary documents to instruct the Real Estate Agent to accept the reserve price in the event that a bid is made in this sum or a greater sum at the auction;

(h) In the event that the property at Property D is not sold on the first occasion that it is auctioned, then the Husband and Wife must do all things and sign all necessary documents to cause the Real Estate Agent to auction the property again every six (6) weeks until it is sold upon the same terms and conditions as stated in Orders (2)(d), (2)(e) and (2)(g) above;

(i) In the event that the bidding at the auctions does not reach the reserve price the Husband or Wife or such of them as attends the relevant auctions may negotiate with the highest bidders or any other interested person and effect a sale of the property at Property D at a price that is not more than five (5) per cent below the reserve price or at such other price as the parties agree in writing;

(j) The Husband and Wife must each co-operate in every way with the Real Estate Agent, including:

(i) Making the key available to the Real Estate Agent;

(ii) Allowing the inspection of the property at Property D at all reasonable times as requested by the Real Estate Agent;

(iii) By not saying or doing anything that is likely to hinder or prevent the sale being effected;

(iv) By ensuring that the property at Property D including the grounds is in a neat and clean condition at the time of inspection by the Real Estate Agent or prospective purchasers;

(v) Signing all documents requested by the Real Estate Agent in relation to the listing for sale of the property at Property D except a contract or agreement for sale that has not been authorised by the solicitor for the Husband and Wife acting in relation to the conveyance.

(k) The Husband and Wife must do all things and sign all necessary documents and provide all necessary authorities to cause the proceeds of sale of the property at Property D to be distributed in the following manner and priority:

(i) All costs and expenses of sale including legal costs and disbursements, Real Estate Agent’s commission, valuer’s fees and auction expenses, if any (including repayment of any such expense as has been paid by either or both of the parties);

(ii) The balance then remaining is to be divided as follows:

(A) as to 65% to the Wife; and

(B) as to 35% to the Husband.

Except as otherwise provided for in these Orders, each party shall be liable for and shall indemnify the other in respect of any liabilities in their respective names.

Each party is to retain any superannuation interests in his or her own name.

Each party is to retain any bank account standing in his or her own name.

The Wife is to retain and is solely entitled to the Toyota Corolla motor car registered number [omitted].

Each party is to be solely responsible for any credit card debt standing in his or her name and shall indemnify the other party against all or any claims arising from such debt.

Written submissions in support of any application for costs are to be filed and served within 21 days and written submissions in opposition to any such application are to be filed and served within a further period of 14 days.

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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