Hall and Hall (No 2) - [2015] FamCA 219

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO 2)

[2015] FamCA 219

FAMILY LAW – SPOUSE MAINTENANCE – enforcement – where husband failed to meet monthly spouse maintenance liability – where wife seeks sale of real property to meet past and future spouse maintenance liabilities - spouse maintenance orders the subject of appeal - where arrears substantially less than value of property – orders made for husband to meet liability through a mortgage or, failing compliance, the wife be permitted to sell the real property.

FAMILY LAW – PROPERTY – interim orders – where husband seeks sale of real estate – unoccupied - substantial mortgage debt – previous application refused – sale of property permitted.

FAMILY LAW – COSTS – Indemnity Costs – wife seeks costs of multiple interim applications on an indemnity basis – husband opposes application and submits the applications were reasonable – whether circumstances justify an order as to costs – husband not wholly unsuccessful – no orders for costs on an indemnity basis – husband ordered to pay costs of wife’s spouse maintenance enforcement application.

Family Law Act 1975 (Cth) s 75, 79, 80, 117

Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Hall

RESPONDENT:

Mr Hall

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

3671

2013

DATE DELIVERED:

2 April 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Justice Dawe

HEARING DATE:

17 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ackman, QC
[with Ms Kari of Counsel]

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley Shaw

COUNSEL FOR THE RESPONDENT:

Mr O'Shannessy

SOLICITOR FOR THE RESPONDENT:

Jordan & Fowler

Orders

If the appeal by the husband against the orders for spouse maintenance is unsuccessful then within thirty [30] days of the date of the dismissal of the appeal the husband do all such things necessary and sign all such documents as may be required to obtain a mortgage in the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000.00] secured over the title of the property situate at II Street, Suburb L in the State of South Australia being the whole of land comprised and described in Certificate of Title Register Book Volume … Folio … (“the Suburb L Property”).
Within seven [7] days of obtaining the funds the husband draw down on the mortgage facility and distribute the funds as follows:
(a)to an interest bearing trust account in the name of the wife’s solicitors for and on behalf of the wife the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000.00] PROVIDED THAT the said sum shall only be used for the purpose of discharging the husband’s liability to the wife for arrears of spouse maintenance and outgoings of the former matrimonial home pursuant to the Orders of 10 December 2013 and not otherwise; and
(b)thereafter that the wife’s solicitors distribute the remaining funds on a monthly basis in accordance with the orders made on 10 December 2013 and not otherwise.
The husband is hereby restrained from causing any…

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 Hall and Hall (No 2)

Details

AGLC: Hall and Hall (No 2) [2015] FamCA 219
Case: [2015] FamCA 219
Decision Date: 2 April 2015

CaseChat Overview and Summary

This matter concerned an appeal by the husband against orders for spouse maintenance and outgoings made by Justice Dawe in the Family Court of Australia. The dispute revolved around the husband's obligation to satisfy these liabilities, which had accrued under earlier orders.

The court was required to determine the appropriate mechanism for the husband to discharge his outstanding maintenance and outgoings liabilities to the wife. This involved considering the husband's ability to raise funds and the potential sale of specific properties to satisfy these debts. The court also had to address the consequences of the husband's potential refusal or neglect to comply with the orders.

Justice Dawe reasoned that the husband should first attempt to secure a mortgage of $150,000 over the Suburb L Property to meet his obligations. If this proved unsuccessful, or if the husband failed to discharge the arrears within a specified timeframe, the wife was to be appointed as his attorney to sell the Suburb L Property. The proceeds of this sale were to be applied first to sale costs, then rates, then any existing mortgages, and finally to discharge the husband's liabilities. Additionally, the court ordered the sale of the W Street properties, with proceeds to be disbursed similarly, with any balance to be held jointly pending further order. The court also made orders regarding the appointment of agents for the sale of the W Street properties and the husband's responsibility for sale preparation costs. Finally, the husband was ordered to pay the wife's costs of the enforcement application.

Orders

Orders of the court

If the appeal by the husband against the orders for spouse maintenance is unsuccessful then within thirty [30] days of the date of the dismissal of the appeal the husband do all such things necessary and sign all such documents as may be required to obtain a mortgage in the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000.00] secured over the title of the property situate at II Street, Suburb L in the State of South Australia being the whole of land comprised and described in Certificate of Title Register Book Volume … Folio … (“the Suburb L Property”).

Within seven [7] days of obtaining the funds the husband draw down on the mortgage facility and distribute the funds as follows:

(a) to an interest bearing trust account in the name of the wife’s solicitors for and on behalf of the wife the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000.00] PROVIDED THAT the said sum shall only be used for the purpose of discharging the husband’s liability to the wife for arrears of spouse maintenance and outgoings of the former matrimonial home pursuant to the Orders of 10 December 2013 and not otherwise; and

(b) thereafter that the wife’s solicitors distribute the remaining funds on a monthly basis in accordance with the orders made on 10 December 2013 and not otherwise.

The husband is hereby restrained from causing any liability in relation to the mortgage facility over the Suburb L property from exceeding ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000.00].

Should the husband refuse or neglect to discharge the spouse maintenance arrears within sixty [60] days of the date of any such dismissal of his appeal from the spouse maintenance order the husband do all such acts and things necessary to appoint the wife as his attorney for the purposes of conducting the sale of the Suburb L property.

Upon the sale of the Suburb L property the sale proceeds shall be disbursed in the following priority:

(a) in payment of all reasonable costs of sale including agent fees and auctioneer costs, legal and conveyancing costs;

(b) any rates adjustments or relevant disbursements payable;

(d) the balance to be paid into an interest bearing account in the names of BBS Lawyers as trustees for the husband and the wife; and

(e) the wife’s solicitors are authorised to draw on the account to meet the liability of the husband to the wife pursuant to the Orders of 10 December 2013.

In the event that the husband refuses or neglects to execute any document or instrument necessary to give effect to all or any of these orders, a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect be appointed pursuant to s106A of the Family Law Act 1975 (Cth), to execute any such document or instrument necessary to give effect to these Orders.

Within twenty-eight [28] days of the date of this Order the parties shall do all acts and things necessary to sell the properties situate at AA & BB, W Street, Suburb F in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume .. Folio .. (“the W Street properties”).

To facilitate the sale:

(a) the wife shall within twenty-eight [28] days nominate three agents to conduct the sale and the husband shall choose one of those agents;

(b) forthwith upon the husband’s nomination of the agent each party shall sign the necessary documents to appoint the agent; and

(c) the husband shall meet the reasonable costs of preparing the properties for sale in accordance with the recommendations of the appointed agent.

Upon sale of the W Street properties the proceeds shall be disbursed in the following priority:

(a) in payment of all reasonable costs of sale including agent fees and auctioneer costs, legal and conveyancing costs;

(b) any rates adjustments or relevant disbursements payable;

(d) the balance to be paid into an interest bearing account in the joint names of the parties, pending further order or agreement in writing.

10.

The husband pay the wife’s costs of and incidental to the application for enforcement of the orders for spouse maintenance and outgoings such costs to be as agreed and in default of agreement within twenty-one [21] days from today as assessed by a Registrar pursuant to the rules.

11.

The wife’s Applications in a Case filed on 7 July 2014 and 10 September 2014 are dismissed and removed from the active pending cases 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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