Forster and Forster (No 2) - [2012] FamCA 1028

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 2)

[2012] FamCA 1028

FAMILY LAW - ENFORCEMENT – application by the wife for directions in relation to the sale of the former matrimonial home – where the property is vacant and the parties are paying insurance and other costs to maintain the property – where the orders for the sale of the property are now the subject of an application to file an appeal out of time – where the matter has a long and very complex history – just and equitable – orders that the property be sold and the proceeds be held in an interest bearing account pending further order of the Court.

FAMILY LAW - STAY – oral application by the husband seeking a stay of the orders just made – where the husband intends to lodge an appeal against them – where the husband has not established any reasonable likelihood of success or that it is appropriate in all the circumstances – application refused.

FAMILY LAW - COSTS – application by the wife seeking the costs of her application – consideration of the factors set out in s 117(2A) – where the Court took into account the conduct of the husband during the proceedings – where the husband was wholly unsuccessful in the proceedings – where the circumstances justify the making of a costs order – where the Court reduced the sum sought by the wife to account for a delay in service on the husband – orders that the husband pay the wife’s costs of and incidental fixed in the sum of $4,000 – where the Court refused the husband’s oral application to stay the costs order.

Family Law Act 1975 (Cth) ss 117 & 117(2A)

APPLICANT:

Ms Forster

RESPONDENT:

Mr Forster

FILE NUMBER:

ADC

3359

2007

DATE DELIVERED:

30 November 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

30 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs West

SOLICITOR FOR THE APPLICANT:

Catherine Hicks & Co

COUNSEL FOR THE RESPONDENT:

n/a

SOLICITOR FOR THE RESPONDENT:

In person

Orders

The property known as P Street, Adelaide Suburb N in the State of South Australia (Certificate of Title …) be sold for such price and upon such conditions and by such mode of sale whether private treaty, auction or otherwise as the wife shall determine in consultation with Mr B of C Real Estate Agents PROVIDED THAT the wife be restrained from entering into any contract to sell the property for a sale price less than FOUR HUNDRED THOUSAND DOLLARS [$400,000.00] unless and until she has given the husband seven [7] days written notice of her intention so to do and provided to the husband at the time of such notice full particulars of the sale price and terms and conditions of sale.

The husband have liberty to apply in respect of any orders relating to the sale of the property upon such notice referred to in the preceding paragraph…

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 Forster and Forster (No 2)

Details

AGLC: Forster and Forster (No 2) [2012] FamCA 1028
Case: [2012] FamCA 1028
Decision Date

CaseChat Overview and Summary

In Forster and Forster (No 2), the Family Court of Australia considered an application by the wife for directions regarding the sale of the former matrimonial home. The property was vacant and incurring maintenance costs, and the existing orders for its sale were subject to an application by the husband for leave to appeal out of time. The matter had a complex history, and the wife sought orders for the sale of the property with the proceeds to be held in an interest-bearing account pending further court determination. The husband also made an oral application for a stay of any orders made, intending to appeal.

The court was required to determine whether to grant the wife's application for directions concerning the sale of the former matrimonial home, considering the ongoing costs of maintaining the vacant property and the husband's pending application for an out-of-time appeal. Additionally, the court had to consider the husband's oral application for a stay of any orders made, and the wife's application for costs, including the application of section 117(2A) of the *Family Law Act 1975* (Cth).

Justice Dawe found that the wife's application for directions regarding the sale of the property was appropriate and just and equitable in the circumstances, even with the potential risk of the underlying orders being set aside. The court also imposed a time limit for the husband to file any proceedings to set aside the property settlement orders, aiming to bring finality to the litigation. The husband's oral application for a stay of the orders was refused, as he failed to establish a reasonable likelihood of success or that a stay was appropriate in all the circumstances, particularly given the protracted history of the matter.

Regarding costs, the court considered the conduct of the parties and the fact that the husband was wholly unsuccessful. While acknowledging a dispute regarding the timing of service of proceedings, the court reduced the wife's costs claim to account for this issue. Consequently, the husband was ordered to pay the wife's costs incidental to the divorce proceedings, fixed at $4,000, to be paid within 28 days. The husband's subsequent oral application to stay this costs order was also refused.

Orders