FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOWNEY & BEALE | [2017] FCCA 316 |
| Catchwords: FAMILY LAW – Final property adjustment – where the parties have reached an agreement regarding all financial issues between them, save one issue with respect to the ownership of an (dog breed omitted) named (name omitted). |
| Legislation: Family Law Act 1975, ss.75(2), 78, 79 Companion Animals Act 1998 (NSW), ss.7, 9, 11 Evidence Act 1995, s.128 |
| Cases cited: Dred Scott v. Sandford, 60 U.S. 393 (1857) Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) Stanford v Stanford [2012] HCA 52 Other Articles Cited: Lesley Petrie, “Animal Law: Animals as Property and the Implications for Veterinary Practice”, Flinders Law School, Proceedings of the AVA Annual Conference, Adelaide 2011. Maja Visic, Jade Henderson, Brooke Gilbey, “Animals as Property under the Law”, 2013. |
| Applicant: | MS DOWNEY |
| Respondent: | MR BEALE |
| File Number: | PAC 4165 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 2 February 2017 |
| Date of Last Submission: | 2 February 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hogg |
| Solicitors for the Applicant: | Maatouks Law Group |
| Solicitors for the Respondent: | Mr Mitchell of Johnsons Solicitors and Attorneys |
ORDERS
By consent Final Property adjustment Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.
Direct the solicitor for the Respondent to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
Dismiss the Application in case filed 23 November 2016 and the Response thereto filed 31 January 2017.
Leave is granted to the wife to withdraw and discontinue without penalty as to costs, her Application for Contravention filed 31 January 2017.
Dismiss the Application of Mr Beale for an Order adjusting interest in property with respect to the chattel comprised of an (dog breed omitted) named “(name omitted)”.
Pursuant to section 78 of the Family Law Act 1975, the wife shall be and is hereby declared to be the owner of (name omitted) as and against the husband and consistent with Order 6 made above.
As far as necessary, the husband will do all things necessary to cause the former matrimonial dog, “(name omitted)”, registration to be transferred into the wife’s name alone.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
EXHIBIT ‘A’
That the interim Consent Orders of the 11th October 2016 be vacated.
That the Husband will within 42 days of the date of these Orders, do all acts, and things necessary to refinance the ‘(omitted) Mortgage (No: (omitted)) into his name alone.
That simultaneously with Order 2 above:
(a)The Wife will do all things and acts necessary to transfer to the Husband all…
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- Downey and Beale [2017] FCCA 316
- Case
- [2017] FCCA 316
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of the final property adjustment orders, which were to be made by consent. Specifically, the court needed to address the refinancing of a mortgage, the transfer of interest in the former matrimonial home, a financial payment from the husband to the wife, and the allocation of responsibility for property outgoings. Further issues included the ownership of a dog and the dismissal of various applications and responses filed by the parties.
The court made final property adjustment orders by consent, in accordance with the Terms of Settlement executed by the parties. These orders included provisions for the husband to refinance a mortgage into his sole name, the wife to transfer her interest in the former matrimonial home to the husband, and the husband to pay $125,000 to the wife. The husband was granted sole occupancy of the property and sole responsibility for its outgoings. The orders also stipulated default provisions in the event the husband failed to comply with these terms, including the sale of the property and the disbursement of proceeds. The court also declared the wife to be the owner of the dog as against the husband and ordered the husband to take necessary steps to transfer its registration into the wife's name. Various applications and responses were dismissed, and leave was granted to the wife to withdraw her application for contravention.
Orders
Orders of the court
1.
By consent Final Property adjustment Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.
2.
Direct the solicitor for the Respondent to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
3.
Dismiss the Application in case filed 23 November 2016 and the Response thereto filed 31 January 2017.
4.
Leave is granted to the wife to withdraw and discontinue without penalty as to costs, her Application for Contravention filed 31 January 2017.
5.
Dismiss the Application of Mr Beale for an Order adjusting interest in property with respect to the chattel comprised of an (dog breed omitted) named “(name omitted)”.
6.
Pursuant to section 78 of the Family Law Act 1975, the wife shall be and is hereby declared to be the owner of (name omitted) as and against the husband and consistent with Order 6 made above.
7.
As far as necessary, the husband will do all things necessary to cause the former matrimonial dog, “(name omitted)”, registration to be transferred into the wife’s name alone.
8.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
EXHIBIT ‘A’
1.
That the interim Consent Orders of the 11th October 2016 be vacated.
2.
That the Husband will within 42 days of the date of these Orders, do all acts, and things necessary to refinance the ‘(omitted) Mortgage (No: (omitted)) into his name alone.
3.
That simultaneously with Order 2 above:
(a) The Wife will do all things and acts necessary to transfer to the Husband all her right title and interest in the former matrimonial home, better described as Property A (title reference (omitted)) here after referred to as ‘the property’;
(b) The Husband will pay into the Wife’s Solicitor Trust Account the sum of $125,000.00.
4.
That the Husband shall be entitled to sole occupancy of the property from the date of these Orders and will be solely responsible and indemnifying the Wife in relation to all mortgage payments and outgoings in relation to the property.
In Default
5.
In circumstances where the Husband fails to comply with Orders 2 and 3b above:
(a) The Husband shall provide vacant possession of the property with 7 days ensuring that the property is a fit and reasonable state of repair having regard to the condition of the property at separation.
(b) The parties shall each take all necessary steps and execute all necessary documents to cause the property to be sold by auction forthwith and at the earliest date with the reserve to be set by the selling agent.
(c) The parties appoint Byles Anjos Solicitors to act on the sale.
(d) The parties appoint (omitted) Real Estate to act on the sale.
(e) That the proceeds of sale be disbursed as follows:-
1. Payment of Agent’s commission and advertising expenses.
2. Payment of legal Costs.
3. Payment to the Wife of $30,000.00
4. The balance to be equally divided between the parties.
(f) That in the event the Husband falls to sign any documents or vacate the property as ordered above with 7 days of a written request, the Wife has the right to sign all documents to give effect to these Orders and take possession of the property.
6.
That each party will be entitled to retain all other items, chattels, superannuation, Jewellery, and items of personality in their names and possession.
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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