DOBBS & DOBBS - [2019] FamCA 536

FAMILY COURT OF AUSTRALIA

DOBBS & DOBBS

[2019] FamCA 536

FAMIL LAW – PROPERTY – enforcement – where final orders were made 18 months ago – where the parties dispute terms for the conduct of sale of their investment property – where the wife has already engaged a selling agent – no evidence that the appointed selling agent is not appropriate to effect a sale – order that the selling agent be retained – order for the parties to communicate in relation to the sale.

Family Law Act 1975 (Cth) s 106A

APPLICANT:

Mr Dobbs

RESPONDENT:

Ms Dobbs

FILE NUMBER:

MLC

8793

2015

DATE DELIVERED:

16 July 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

16 July 2019

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

The wife have leave to withdraw her contravention application filed 5 April 2019.
That in order to give effect to order 4 of the orders dated 15 February 2018 (“the Final Orders”), regarding the sale of the property at D Street, Suburb L (“D Street”);
(a)The selling agents be Mr H and Mr J of K Real Estate, Suburb L (“the selling agents”).
(b)The sale be by public auction to be conducted no later than …2019.
(c)The reserve price to be as agreed between the parties such agreement to be in writing and confirmed no later than 14 days prior to the auction date and failing agreement to be nominated by the selling agents.
(d)Within 14 days the husband and the wife do all such acts and things as may be required to appoint a conveyancing solicitor to conduct the sale and in the event that there is no agreement such solicitor be as nominated by the President of the Law Institute of Victoria or his nominee.
That from the husband’s entitlements pursuant to order 4 of the Final Orders, the wife be paid the sum of $9000, being costs awarded to her pursuant to the order of the Full Court of the Family Court of Australia dated 10 September 2018, less the costs awarded to the husband pursuant to orders of the Federal Circuit Court of Australia dated 9 September 2016 and the Family Court of Australia dated 24 August 2017.
That there be liberty to apply with respect to the terms and conditions of the sale of D Street.
That for the purposes of giving effect to these orders and order 4 of the Final Orders the wife be permitted to communicate with the husband in writing to:
(a)…, and
(b)M Street, Suburb N.
That for the purposes of giving effect to these orders and order 4 of the Final Orders, the husband be permitted to communicate with the wife in writing to…
That the Application in a Case filed 7 June 2019 and the Response to Application in a Case filed 8 July 2019 be otherwise dismissed.

Note: The form of the order is subject to the entry of the…

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 DOBBS & DOBBS

Details

AGLC: DOBBS & DOBBS [2019] FamCA 536
Case: [2019] FamCA 536
Decision Date: 16 July 2019

CaseChat Overview and Summary

The matter of *Dobbs & Dobbs* came before Johns J of the Family Court of Australia. The proceedings concerned the finalisation of property settlement orders and related applications. The wife sought leave to withdraw a contravention application, and the court was required to make further orders to give effect to existing final orders concerning the sale of a property located at D Street, Suburb L.

The court was tasked with determining the specific terms and conditions for the sale of the D Street property, including the appointment of selling agents, the method of sale, the establishment of a reserve price, and the appointment of a conveyancing solicitor. Additionally, the court needed to address the payment of costs awarded to both parties by different courts, and to make orders regarding communication between the parties for the purpose of giving effect to the property sale.

Johns J ordered that the wife have leave to withdraw her contravention application. The court then made detailed orders for the sale of the D Street property, appointing specific selling agents and stipulating a public auction to be conducted by a certain date. The reserve price was to be agreed in writing by the parties, failing which it would be nominated by the selling agents. The parties were ordered to appoint a conveyancing solicitor within 14 days, with the President of the Law Institute of Victoria to nominate one if agreement was not reached. The court also ordered that $9000 be paid to the wife from the husband's entitlements, representing the net effect of costs awarded to her by the Full Court of the Family Court of Australia less costs awarded to the husband by the Federal Circuit Court of Australia and the Family Court of Australia. Liberty to apply was granted concerning the sale terms, and specific written communication arrangements were permitted between the parties for the purpose of giving effect to the orders. The remaining applications before the court were dismissed.

Orders

Orders of the court

The wife have leave to withdraw her contravention application filed 5 April 2019.

That in order to give effect to order 4 of the orders dated 15 February 2018 (“the Final Orders”), regarding the sale of the property at D Street, Suburb L (“D Street”);

(a) The selling agents be Mr H and Mr J of K Real Estate, Suburb L (“the selling agents”).

(b) The sale be by public auction to be conducted no later than …2019.

(c) The reserve price to be as agreed between the parties such agreement to be in writing and confirmed no later than 14 days prior to the auction date and failing agreement to be nominated by the selling agents.

(d) Within 14 days the husband and the wife do all such acts and things as may be required to appoint a conveyancing solicitor to conduct the sale and in the event that there is no agreement such solicitor be as nominated by the President of the Law Institute of Victoria or his nominee.

That from the husband’s entitlements pursuant to order 4 of the Final Orders, the wife be paid the sum of $9000, being costs awarded to her pursuant to the order of the Full Court of the Family Court of Australia dated 10 September 2018, less the costs awarded to the husband pursuant to orders of the Federal Circuit Court of Australia dated 9 September 2016 and the Family Court of Australia dated 24 August 2017.

That there be liberty to apply with respect to the terms and conditions of the sale of D Street.

That for the purposes of giving effect to these orders and order 4 of the Final Orders the wife be permitted to communicate with the husband in writing to:

(a) …, and

(b) M Street, Suburb N.

That for the purposes of giving effect to these orders and order 4 of the Final Orders, the husband be permitted to communicate with the wife in writing to…

That the Application in a Case filed 7 June 2019 and the Response to Application in a Case filed 8 July 2019 be otherwise dismissed.

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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