Gresham and Gresham (No 3) - [2019] FamCA 983

FAMILY COURT OF AUSTRALIA

GRESHAM & GRESHAM (NO. 3)

[2019] FamCA 983

FAMILY LAW – ORDERS – Stay of property orders only granted on terms.

Family Law Act 1975 (Cth) s 106A

Aldridge & Keaton [2009] FamCAFC 106
Alexander & Cambridge Credit Corp (1985) 2 NSWLR 685
Clemett & Clemett (1981) FLC 91-013
Fluvium v Carlson [2012] FamCA 831
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681
K & B [2006] FamCA 848; (2006) FLC 93-288
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220
Trahn & Long (No.2) [2008] FamCAFC 194

APPLICANT:

Ms Gresham

RESPONDENT:

Mr Gresham

FILE NUMBER:

SYC

7914

2016

DATE DELIVERED:

20 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

17 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams SC

SOLICITOR FOR THE APPLICANT:

Mills Oakley

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Watson & Watson Solicitors

Orders

Order 23 of Orders made 11 October 2019 is stayed pending further Order or pending the hearing and determination of the Wife’s Appeal.
That forthwith and pending further Order or pending the hearing and determination of the Wife’s Appeal the Applicant Wife and the Respondent Husband cause the whole of the rent received by her in respect of the tenancy of the property at D Street, Suburb E to be paid and applied as follows:
(a)       In full repayment of the monthly mortgage to the Australia and New Zealand Bank (“ANZ”);
(b)       To pay the rates to Suburb E Council and Insurance of the property;
(c)       Any costs associated with the maintenance of the property whilst let and required in order to prepare the property for sale; and
(d)       After payment of the above the remainder to be retained by the Wife which amount shall be in full payment of amounts required to be paid by the husband pursuant to Order 30 of the Orders of 11 October 2019 including all obligations of the Husband to pay spousal maintenance to the Wife.
That the Applicant Wife forthwith do all acts and things and complete all documents so as to comply with Orders 16, 17 and 24 of the Orders of 11 October 2019 being:
(a)       To divide equally funds in the UK Investment Bond and close the account;
(b)       To divide equally the funds or liabilities associated with the ANZ Joint Bank Accounts and close the accounts;
(c)       Sign all documents and execute all consents necessary to transfer her interest in the property known as G Street to the Husband with any costs associated therewith to be equally borne; and
(d)       Sign all documents and give all consents necessary to affect an equal division of the Country Q Pensions in the Husband’s name being the BB Pension and the CC Pension.
In the event that the Applicant Wife refuses or neglects to execute…

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 Gresham and Gresham (No 3)

Details

AGLC: Gresham and Gresham (No 3) [2019] FamCA 983
Case: [2019] FamCA 983
Decision Date: 20 December 2019

CaseChat Overview and Summary

This matter came before Henderson J concerning an application by the Applicant Wife following orders made on 11 October 2019. The dispute involved the division of assets and liabilities between the Applicant Wife and the Respondent Husband, including property, bank accounts, and superannuation interests.

The court was required to determine the terms of interim orders pending the wife's appeal, specifically regarding the application of rental income from a property at D Street, Suburb E, and the execution of orders for the division of various financial assets. The court also considered the implications of the wife's potential refusal or neglect to comply with the substantive orders.

Henderson J ordered that Order 23 of the previous orders be stayed pending further order or the determination of the wife's appeal. The court further directed that rental income from the D Street property be applied first to the ANZ mortgage, council rates, and insurance, then to maintenance costs for sale preparation. Any remaining rent was to be paid to the wife in full satisfaction of amounts the husband was required to pay under Order 30, including spousal maintenance. The wife was also ordered to take all necessary steps to comply with specific orders concerning the division of a UK Investment Bond, ANZ joint bank accounts, the transfer of her interest in the G Street property to the husband, and the equal division of two Country Q pensions. In the event of the wife's non-compliance, the Registrar of the Court was appointed to execute necessary documents pursuant to section 106A of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

Order 23 of Orders made 11 October 2019 is stayed pending further Order or pending the hearing and determination of the Wife’s Appeal.

That forthwith and pending further Order or pending the hearing and determination of the Wife’s Appeal the Applicant Wife and the Respondent Husband cause the whole of the rent received by her in respect of the tenancy of the property at D Street, Suburb E to be paid and applied as follows:

(a) In full repayment of the monthly mortgage to the Australia and New Zealand Bank (“ANZ”);

(b) To pay the rates to Suburb E Council and Insurance of the property;

(c) Any costs associated with the maintenance of the property whilst let and required in order to prepare the property for sale; and

(d) After payment of the above the remainder to be retained by the Wife which amount shall be in full payment of amounts required to be paid by the husband pursuant to Order 30 of the Orders of 11 October 2019 including all obligations of the Husband to pay spousal maintenance to the Wife.

That the Applicant Wife forthwith do all acts and things and complete all documents so as to comply with Orders 16, 17 and 24 of the Orders of 11 October 2019 being:

(a) To divide equally funds in the UK Investment Bond and close the account;

(b) To divide equally the funds or liabilities associated with the ANZ Joint Bank Accounts and close the accounts;

(c) Sign all documents and execute all consents necessary to transfer her interest in the property known as G Street to the Husband with any costs associated therewith to be equally borne; and

(d) Sign all documents and give all consents necessary to affect an equal division of the Country Q Pensions in the Husband’s name being the BB Pension and the CC Pension.

In the event that the Applicant Wife 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 Court 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 Applicant Wife and to 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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