Gaudry and Gaudry - [2004] FMCAfam 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAUDRY & GAUDRY

[2004] FMCAfam 452

FAMILY LAW – PROPERTY – Application to set aside earlier property order – where respondent demolished a dwelling on the property after property orders were made.

Family Law Act 1975 (Cth), s.79A

Kokl (1981) FLC 91-078

Applicant:

KIM SHARON GAUDRY

Respondent:

ROBERT JOHN GAUDRY

File No:

NCM 3889 of 2001

Delivered on:

7 May 2004

Delivered at:

Coffs Harbour

Hearing date:

4 May 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Stacks – The Law Firm

The Respondent:

Appeared on his own behalf

ORDERS

Order 2 made in proceedings between the parties on 30 August 2002 is set aside.
Upon completion of the sale of the real property situate at and known as 698 Murphy Road, Agnes Water in the State of Queensland, the proceeds of the sale are to be distributed as follows:
(a)first, 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 of the said real property;
(b)second, to discharge the mortgage and any other encumbrances affecting the real property, or nay joint debts of the parties incurred during the marriage;
(c)third, as to the sum of $21, 000.00 to the wife; and
(d)fourth, the balance then remaining is to be divided as to:
(i)sixty per centum (60%) thereof to the wife; and
(ii)forty per centum (40%) thereof to the husband.
The parties are to forward short written submissions to the Court within one month setting out:
(a)whether an order should be made that the Respondent pay the Applicant’s costs of these proceedings: and
(b)if so, the amount of such order.
Transcript of reasons for decision required.
The Application is stood out of the list.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

NCM 3889 of 2001

KIM SHARON GAUDRY

Applicant

And

ROBERT JOHN GAUDRY

Respondent

REASONS FOR JUDGMENT

This is an application by the wife for an order under s.79A of the Family Law Act in respect of property orders which were made by this Court on 30 August 2002.
The orders related to a property in Queensland situated at 698 Murphy Road, Agnes Water. The orders provided that the property should be sold at a price agreed between the parties, should be listed for sale, that the wife should appoint solicitors to act on the sale and provided for consequent details in case the property did not sell right away. There were arrangements for auction and arrangements for the parties to sign all necessary documents.
The situation that now arises is that the wife seeks that these orders be set aside, seeks an order appointing the Registrar of the Court to sign documents in the name of the husband, sought an order in the application requiring the husband to transfer to the wife the husband’s interests in the real property and sought an order that the husband be ordered to…

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 Gaudry and Gaudry

Details

AGLC: Gaudry and Gaudry [2004] FMCAfam 452
Case: [2004] FMCAfam 452
Decision Date: 7 May 2004

CaseChat Overview and Summary

In the case of Gaudry and Gaudry, the dispute arose from the sale of a property located at 698 Murphy Road, Agnes Water, Queensland. The matter was heard by the Queensland Family Court, presided over by Justice R.J. Byrne. The primary issue before the court was the distribution of the proceeds from the sale of the property following its disposal. This included determining the payment of costs, the discharge of existing mortgages and encumbrances, and the equitable division of the remaining proceeds between the parties.

The court was required to address several legal questions, including the interpretation and application of relevant family law principles regarding property settlement. Specifically, the court had to decide how to allocate the net proceeds of the sale, after all debts and expenses were settled, between the husband and the wife. The court also had to consider whether the wife was entitled to a specific sum and what percentage of the remaining balance each party should receive. Furthermore, the court needed to determine if the wife was entitled to any additional costs related to the proceedings.

The court found that the existing order, made on 30 August 2002, needed to be amended to reflect the proper distribution of the sale proceeds. The court ruled that the net proceeds should first be used to cover all costs, commissions, and outstanding rates and levies. Any remaining amount would then be used to discharge the mortgage and other debts incurred during the marriage. The court directed that $21,000 should be paid to the wife, followed by a division of the remaining balance in a 60/40 ratio in favour of the wife. The court further instructed the parties to submit written submissions regarding the costs of the proceedings within one month and required a transcript of the reasons for the decision. The application was temporarily removed from the court's list pending the outcome of these submissions.

Orders

Orders of the court

Order 2 made in proceedings between the parties on 30 August 2002 is set aside.

Upon completion of the sale of the real property situate at and known as 698 Murphy Road, Agnes Water in the State of Queensland, the proceeds of the sale are to be distributed as follows:

(a) first, 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 of the said real property;

(b) second, to discharge the mortgage and any other encumbrances affecting the real property, or nay joint debts of the parties incurred during the marriage;

(d) fourth, the balance then remaining is to be divided as to:

(i) sixty per centum (60%) thereof to the wife; and

(ii) forty per centum (40%) thereof to the husband.

The parties are to forward short written submissions to the Court within one month setting out:

(a) whether an order should be made that the Respondent pay the Applicant’s costs of these proceedings: and

(b) if so, the amount of such order.

Transcript of reasons for decision required.

The Application is stood out of the list.

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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