FEDERAL CIRCUIT COURT OF AUSTRALIA
| DISHMAN & DISHMAN (No.2) | [2019] FCCA 2803 |
| Catchwords: FAMILY LAW – PROPERTY – Where the husband is self-represented – conduct of proceedings – where the husband withdrew and disengaged from the proceedings – due process – property adjustment – where there is little controversy between the parties as to the evidence – where the available assets and resources and the net value of all assets is agreed between the parties or clearly established on evidence – contributions – where the wife received a significant inheritance during the marriage – homemaker contributions – primary wage-earning contributions – section 75(2) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 90XZD |
| Cases cited: Re F Litigant in PersonGuidelines (2001) FLC 93-072 Allesch & Maunz [2000] HCA 40 |
| Applicant: | MS DISHMAN |
| Respondent: | MR DISHMAN |
| File Number: | PAC 6114 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 23 September 2019 |
| Date of Last Submission: | 23 September 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 8 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroeder |
| Solicitors for the Applicant: | Matthews Dooley & Gibson |
| The Respondent appeared in Person |
ORDERS
That each of the parties shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to instruct Matthews Dooley & Gibson Solicitors (or such other practice or individual/s as hold on trust for the parties the sum of $1,205,274 and being the proceeds of sale of the former matrimonial home at Suburb A), to release to the wife all funds held by them on behalf of the parties together with any interest accrued thereupon.
That within forty two (42) days the Husband shall:-
(a)Pay to the Wife the sum of $350,000;
(b)Discharge the mortgage over the property known as Property B being the whole of the land comprised in Folio Identifier … (“Property B”); and
(c)Discharge the mortgage over the property known as Property C being the whole of the land comprised in Folio Identifier … (“Property C”).
That simultaneously with the Husband complying with Order 2 the Wife shall do all such things and sign all such documents provided to her by the Husband as may be necessary to transfer to the Husband all of her right title and interest in Property B and Property C.
That in the event that the Respondent fails to comply with Order 2 within forty two (42) days, the parties…
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- DISHMAN & DISHMAN (No.2) [2019] FCCA 2803
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- [2019] FCCA 2803
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CaseChat Overview and Summary
The court was required to determine the appropriate property adjustment, considering the parties' contributions, including the wife's significant inheritance during the marriage, her homemaker contributions, and the husband's primary wage-earning contributions. The court also had to consider the factors outlined in section 75(2) of the relevant legislation.
The court's reasoning focused on achieving a just and equitable outcome, taking into account the established contributions and financial resources of each party. The orders made reflect a division of assets, including the proceeds from the sale of the former matrimonial home, the transfer of specific properties, and the allocation of vehicles and other financial resources. The court also made provision for the execution of necessary documents by the Registrar or Deputy Registrar in the event of a party's default, and outlined a process for the disbursement of sale proceeds from the properties. The wife was given the option to pursue costs.
Orders
Orders of the court
1.
That each of the parties shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to instruct Matthews Dooley & Gibson Solicitors (or such other practice or individual/s as hold on trust for the parties the sum of $1,205,274 and being the proceeds of sale of the former matrimonial home at Suburb A), to release to the wife all funds held by them on behalf of the parties together with any interest accrued thereupon.
2.
That within forty two (42) days the Husband shall:-
(a) Pay to the Wife the sum of $350,000;
(b) Discharge the mortgage over the property known as Property B being the whole of the land comprised in Folio Identifier … (“Property B”); and
(c) Discharge the mortgage over the property known as Property C being the whole of the land comprised in Folio Identifier … (“Property C”).
3.
That simultaneously with the Husband complying with Order 2 the Wife shall do all such things and sign all such documents provided to her by the Husband as may be necessary to transfer to the Husband all of her right title and interest in Property B and Property C.
4.
That in the event that the Respondent fails to comply with Order 2 within forty two (42) days, the parties shall within seven (7) days of his default, do all acts and things and sign all documents necessary to effect a sale of the Property B and Property C properties in accordance with the following conditions of sale:-
(a) That the parties sign all selling authorities as may be necessary to enable Property B and Property C to be listed for sale with a licensed real estate agent or agents as agreed between the parties and in default of agreement as appointed by the Real Estate Institute of NSW or its then present equivalent for such purpose.
(b) That the parties instruct a Solicitor/Conveyancer to have the carriage of the sale of Property B and Property C being such Solicitor/Conveyancer as agreed between the parties and in default of agreement such Solicitor/Conveyancer to be appointed by the President of the New South Wales Law Society.
(c) That the parties list Property B and Property C at such prices as the parties shall agree and failing agreement then at such prices as may be determined by a Valuer appointed by the President for the time being of the Australian Property Institute (NSW Division) or his nominee or its then present equivalent for such purpose.
(d) If contracts for the sale of Property B by private treaty have not been exchanged within three (3) months from the date Property B was placed on the market for sale then the parties will cause Property B to be listed for sale by way of public auction within four (4) months from the date that Property B was placed on the market for sale.
(e) If contracts for sale of Property C by private treaty have not been exchanged within three (3) months from the date Property C was placed on the market for sale then the parties will cause Property C to be listed for sale by way of public auction within four (4) months from the date that Property C was placed on the market for sale.
(f) If either Property B or Property C is listed for sale by way of public auction, a reserve price shall be fixed by agreement between the parties, and failing agreement the reserve price will be determined by a Valuer appointed by the parties, or failing agreement, appointed by the President for the time being of the Australian Property Institute (NSW Division) or his nominee or its then present equivalent, upon the written request of either party.
5.
In the event that the Property B and/or Property C are not sold by public auction as provided for above, then each unsold property is to be relisted on the market for sale by private treaty with a real estate agent agreed between the parties and at a price agreed between the parties or failing agreement within seven (7) days after the auction then as determined by the President for the time being of the Australian Property Institute (NSW Division) or his nominee, or its then present equivalent, upon the written request of either party.
6.
That upon completion of the first sale as between Property B and Property C the sale proceeds shall be disbursed in the following manner and priority:-
(a) In discharge of any mortgage;
(b) In payment of the costs and expenses of the sale;
(c) In payment of the sum of $350,000 plus interest calculated in accordance with the Federal Circuit Court Rules 2001 to the Wife; and
(d) The balance, if any, to the Husband
7.
That the sale proceeds of the second property to be sold shall be disbursed in the following manner and priority;-
(a) In discharge of any mortgage;
(b) In payment of the costs and expenses of the sale;
(c) In payment of such sum as is necessary to provide a total payment to the Wife of $350,000 plus interest calculated in accordance with the Federal Circuit Court Rules 2001 in the event that there was a shortfall in that payment pursuant to the last preceding Order; and
(d) The balance to the Husband.
8.
That pending the transfer of Property B and Property C or the sale of Property B and Property C in accordance with the Orders herein, the rental income from each property shall be applied to payment of the outgoings on those properties and any shortfall shall be paid by the Husband.
9.
That the Wife be declared the sole owner in law and equity of Vehicle D.
10.
That the Husband be declared the sole owner in law and equity of Vehicle E.
11.
That other than as aforesaid the Husband and the Wife be declared to have the sole right title and interest in:
(a) Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively
(b) Any moneys, shares, debentures which stand in their sole name (including, in the case of the husband, any offset account connected with any mortgage encumbering any parcel of real estate to be retained by him) respectively at the date hereof.
(c) Any financial resources, including superannuation entitlements, which stand in their sole name respectively at the date hereof.
12.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar or Deputy Registrar of the Parramatta Registry of the Court making this Order be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument upon being satisfied by Affidavit of such neglect or refusal. A party shall be deemed to be in default if that party refuses or neglects to sign any document within seven (7) days of being requested to execute that document, such request being made in writing.
13.
In the event that the applicant wife seeks to press for an order with respect to costs then the wife’s legal representatives shall advise my Associate in writing, within 28 days of delivery of these reasons, of their intention to press that application and upon receipt of such notice the matter will then be relisted for argument and appropriate directions made as to the filing of a minute of order sought and written submissions.
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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