Geborovich and Geborovich - [2010] FamCA 257

FAMILY COURT OF AUSTRALIA

GEBOROVICH & GEBOROVICH [2010] FamCA 257

FAMILY LAW - PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable – Superannuation

Family Law Act 1975 (Cth) ss 75 & 79
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 258 ALR 14
The State of Queensland v JL Holdings (1997) 141 ALR 353
S & S [2003] FamCA 971
Neocleous & Neocleous (1993) FLC 92-37
In the Marriage of Jacenko (1986) 11 Fam LR 34
In the Marriage of Whitford (1979) 4 Fam LR 754
McMahon and McMahon (1976) FLC 90‑038
Tormsen and Tormsen (1993) 18 Fam LR 232; FLC 92‑392
In the Marriage of Hickey (2003) 30 Fam LR 355
Black and Kelner (1992) FLC 92-287
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414

APPLICANT: Ms Geborovich

RESPONDENT: Mr Geborovich

FILE NUMBER: SYC 317 Of 2008

DATE DELIVERED: 9 April 2010

PLACE DELIVERED: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE: 29 & 30 October 2009,
19 February 2010 &
12 March 2010
REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:
Mr A. Givney

SOLICITOR FOR THE APPLICANT: Nash Allen Williams & Wotton

COUNSEL FOR THE RESPONDENT
HUSBAND:
Mr G. Gersbach

SOLICITOR FOR THE RESPONDENT: Shepherds The Family Law Specialists
Orders
1.The husband shall within two months of the date of these orders pay the sum of $118,401.00 to the wife.
2.In the event the husband fails or neglects to pay such sum then the husband shall do all acts and things necessary to sell the property at J, in the State of New South Wales and in respect of such sale the following shall apply:-
a)The property shall be sold at the best price reasonably obtainable.
b)In the event the parties cannot agree as to the best price reasonably obtainable and/or the reserve price at auction then the parties shall appoint the President for the time being of the Australian Institute of Valuers or his or her nominee to assess the best price reasonably obtainable and/or reserve price at auction and the parties shall be bound by such assessment and shall equally bear the cost.
c)In the event the property is not subject to a binding agreement for sale within five months of the date of these orders then the husband shall do all acts and things necessary to place the property in the hands of a licensed auctioneer to sell the property within six weeks thereafter.
d)Upon sale the proceeds of sale shall be paid as follows:-
i.In payment of agents commission and legal costs occasioned by the sale.
ii.Payment to 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 Geborovich and Geborovich

Details

AGLC: Geborovich and Geborovich [2010] FamCA 257
Case: [2010] FamCA 257
Decision Date: 9 April 2010

CaseChat Overview and Summary

Judicial Registrar Loughnan considered the financial matters between the husband and wife in this family law proceeding. The dispute concerned the division of property, specifically the wife's entitlement to a sum of money from the husband.

The court was required to determine the specific orders to be made regarding the financial settlement between the parties. This included the method and timeframe for the husband to satisfy his financial obligations to the wife, and the consequences of any failure to comply with those orders. The court also needed to address the division of other assets and the mechanism for enforcing the orders.

The court ordered the husband to pay the wife a sum of $118,401.00 within two months. If this payment was not made, the husband was directed to take all necessary steps to sell their property at J, New South Wales, at the best reasonably obtainable price. The orders provided a mechanism for resolving disputes regarding the sale price or reserve price by appointing the President of the Australian Institute of Valuers. Specific timeframes were set for the sale, and the proceeds were to be applied first to sale costs, then to the wife's payment with interest, with any balance to the husband. The court also ordered that each party retain other assets in their possession and appointed the Registrar of the Family Court of Australia as an attorney to execute documents if either party refused to do so, pursuant to section 106A of the Family Law Act 1975 (Cth).

Orders

Orders of the court

1. The husband shall within two months of the date of these orders pay the sum of $118,401.00 to the wife.

2. In the event the husband fails or neglects to pay such sum then the husband shall do all acts and things necessary to sell the property at J, in the State of New South Wales and in respect of such sale the following shall apply:-

a) The property shall be sold at the best price reasonably obtainable.

b) In the event the parties cannot agree as to the best price reasonably obtainable and/or the reserve price at auction then the parties shall appoint the President for the time being of the Australian Institute of Valuers or his or her nominee to assess the best price reasonably obtainable and/or reserve price at auction and the parties shall be bound by such assessment and shall equally bear the cost.

c) In the event the property is not subject to a binding agreement for sale within five months of the date of these orders then the husband shall do all acts and things necessary to place the property in the hands of a licensed auctioneer to sell the property within six weeks thereafter.

d) Upon sale the proceeds of sale shall be paid as follows:-

i. In payment of agents commission and legal costs occasioned by the sale.

ii. Payment to the wife of $118,401.00 together with interest dated from 2 months from the date of these orders.

iii. The balance if any to the husband.

3. Each party shall otherwise retain all other assets currently in his or her possession, custody or control, including, but not limited to shares, stock options, funds at bank, motor vehicles, and furniture and effects.

4. In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Family Court of Australia shall be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

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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COUNSEL FOR THE APPLICANT WIFE:	Mr A. Givney
SOLICITOR FOR THE APPLICANT:	Nash Allen Williams & Wotton