FARMER & PANSHIN - [2012] FMCAfam 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARMER & PANSHIN

[2012] FMCAfam 691

FAMILY LAW – Property – application for exclusive occupancy and for sale of home pending final order.

Family Law Act 1975, ss.79, 80, 114

Davis & Davis (1976) FLC 90-062
O’Dea and O’Dea (1980) FLC 90-896
Strahan (2011) FLC 93-466

Applicant:

MS FARMER

Respondent:

MS PANSHIN

File Number:

SYC 2252 of 2011

Judgment of:

Altobelli FM

Hearing dates:

5 and 6 July 2012

Date of Last Submission:

10 July 2012

Delivered at:

Sydney

Delivered on:

10 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr B.A. Batey

Solicitors for the Applicant:

Ms J. Stidwill

Counsel for the Respondent:

Mr L. Ang

ORDERS

The Applicant in these proceedings, namely MS FARMER, be declared to have the sole and exclusive use and occupation of the premises known as and situated at [address omitted] in the State of New South Wales ("the property").
The Applicant and Respondent ("the parties") do all acts and things necessary and sign all such documents an papers as may reasonably be required to sell the property for the best price reasonably obtainable in the following manner:
(a)The parties will, within seven (7) days of the making of these Orders, list the property for sale by public auction with Mr H of [omitted] Real Estate Agents or such other agent as the Applicant decides;
(b)The reserve price at which the property shall be listed shall be such sum as may be mutually agreed by the parties in writing within seven (7) days of the appointment of the agent and in the absence of agreement shall be $925,000;
(c)The firm of [omitted] Property Conveyancing, Licensed Conveyancers, will have carriage of the conveyance of the sale of the property.
(d)The parties will co-operate in every way with the agent, including, without limiting the generality of this Clause:
(i)making the key available to the agent at all times;
(ii)allowing inspection of the property at all reasonable times when requested to do so by the agent;
(iii)ensuring that the property, including the grounds, are in a neat and clean condition at the time of the inspection by the agent and prospective purchasers;
(iv)signing all documents requested by the agent in relation to listing the property, except a contract or agreement for sale which has not been authorised by the parties' solicitor or conveyancer; and
Upon completion of the sale of the property, the proceeds of the sale will be applied as follows:
(a)Firstly to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of any real property;
(b)Secondly, to discharge the mortgage secured against the property and any other encumbrances affecting the property;
(c)Thirdly, the balance then remaining shall be paid into a controlled monies trust account established by the solicitor for the Applicant in trust for both parties.
Pursuant to s.106A of the Family Law Act 1975, should either party fail to do anything, sign…

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 FARMER & PANSHIN

Details

AGLC: FARMER & PANSHIN [2012] FMCAfam 691
Case: [2012] FMCAfam 691
Decision Date

CaseChat Overview and Summary

MS Farmer, the applicant, filed an application in the Federal Magistrates Court for interim orders concerning exclusive occupancy and the sale of the matrimonial home. The respondent, MS Panshin, opposed the application. The case was part-heard, with the substantive hearing scheduled for February 2013. The central issues were the constitution of the asset pool, the assessment of contributions, and the evaluation of future needs.

The court considered two main legal issues: granting exclusive occupancy and making interim property orders. The court referenced previous cases such as O’Dea and O’Dea (1980) and Strahan (2011) to understand the criteria for exclusive occupancy and interim property orders, respectively. The court noted that exclusive occupancy should be granted cautiously, taking into account the means and needs of the parties, hardship, and conduct. For interim property orders, the court must consider whether making the order is appropriate in the circumstances and whether the remaining property needs to be adequate to meet the legitimate expectations of both parties.

The court reviewed the evidence presented, which included affidavits and financial documents. Key evidence included the respondent's poor financial management, her inability to work cooperatively with the applicant, and her inconsistent financial statements. The court observed that the respondent had significant mortgage arrears and had been unresponsive in producing necessary documents. The applicant's evidence demonstrated her willingness to take immediate possession and prepare the property for sale.

Based on the evidence, the court found that there was an imminent risk of mortgagee sale due to the respondent's non-payment of the mortgage. The court was not confident that the respondent would facilitate the sale of the property or pay the mortgage. Therefore, the court concluded that the only way to preserve the asset was to sell the property by placing the applicant in possession and ordering its sale. The court made orders for the applicant to have exclusive occupancy, to list the property for sale, and to apply the sale proceeds according to the court's directions. The respondent was ordered to vacate the property by a specified date. The court emphasized that the applicant, not the respondent, would control the sale of the property.

Orders