Hammond and Fitch - [2009] FMCAfam 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAMMOND & FITCH

[2009] FMCAfam 482

FAMILY LAW –Property – value of former matrimonial home – “offer” to purchase – adding back to asset pool – shares sold by husband – husband’s failure to continue loan repayments – contributions – wife’s medical and psychological difficulties – wife’s employment prospects.

Family Law Act 1975 (Cth), ss.75, 79

C (2005) FLC 93-220
Lee Steere (1985) FLC 91-626
Ferraro (1993) FLC 92-335
Clauson (1995) FLC 92-595
Hickey (2003) FLC 93-143
Russell v Russell (1999) FLC 92-877
Townsend and Townsend (1995) FLC 92-569
Re NHC & RCH (2004) FLC 93-204
C and C [1998] FamCA 143
AJO v GRO (2005) FLC 93-218
Wilde & Wilde [2007] FamCA 1044
Gollings and Scott (2007) FLC 93-319
M and M [1998] FamCA 42
Rolfe and Rolfe (1979) FLC 90-62
Mallet v Mallet (1984) FLC 91-507
Bigelow & Reuter [2006] FamCA 1455

Applicant:

MR HAMMOND

Respondent:

MS FITCH

File Number:

LNC 799 of 2007

Judgment of:

Roberts FM

Hearing dates:

22 & 23 January, 12 February 2009

Date of Last Submission:

12 February 2009

Delivered at:

Launceston

Delivered on:

15 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr M Trezise

Solicitors for the Applicant:

McGrath & Co Lawyers

Counsel for the Respondent:

Mr F Dixon SC with Ms E Turner

Solicitors for the Respondent:

Temple-Smith Partners

ORDERS

That whenever a splittable payment is payable in respect of the superannuation interest of MR HAMMOND (“the husband”) in the [W] Superannuation Fund (“the Fund”):
(a)MS FITCH (“the wife) is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $108,000.00 at the operative time, being four (4) working days from the service of a certified copy of this Order on the trustee of the Fund (“the Trustee”);
(b)there is a corresponding reduction in the entitlement of the husband but for this order; and
(c)this order binds the Trustee or trustees from time to time of the Fund.
That subject to the next succeeding Order hereof the parties must do all acts and execute all documents necessary to sell at market value the property known as Property W in Tasmania and comprised in Certificate of Title Volume [2] Folio 1 (“the property”) by private treaty and the property is to be listed for sale with such real estate agent (“the Agent”) as the parties may agree or, failing agreement, as nominated by the President of the Real Estate Institute of Tasmania.
That for the purposes of the preceding Order hereof:
(a)the listing price for the property shall be as agreed between the parties, or failing agreement, as determined by the Agent; and
(b)the husband must co-operate in every way with the Agent in relation to the marketing of the property including making a key available, allowing inspection of the property at times reasonably requested by the Agent and ensuring that the property is in a neat and clean condition at 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 Hammond and Fitch

Details

AGLC: Hammond and Fitch [2009] FMCAfam 482
Case: [2009] FMCAfam 482
Decision Date: 15 May 2009

CaseChat Overview and Summary

In the matter of Hammond and Fitch, the Federal Circuit and Family Court of Australia was tasked with resolving a dispute concerning the division of property and superannuation interests between the husband and wife. The wife sought orders regarding the division of superannuation and real property interests, including a splittable payment from the husband's superannuation fund and the sale of a property in Tasmania. The husband contested the wife's claims and sought various orders regarding the division of property and liabilities.

The court was required to determine whether the wife was entitled to a splittable payment from the husband's superannuation fund, and if so, the amount of that payment. The court also needed to decide on the sale of the property in Tasmania, including the listing price, method of sale, and the distribution of the proceeds of sale. Additionally, the court had to determine the husband's obligations regarding the sale of the property and his mother's debt.

The court held that the wife was entitled to a splittable payment from the husband's superannuation fund, calculated using a base amount of $108,000.00. The court ordered the sale of the property in Tasmania, with specific instructions regarding the listing price, method of sale, and distribution of the proceeds of sale. The court also ordered the husband to indemnify the wife against any liability to his mother. The court dismissed all other extant applications, except for costs.

These orders provide a clear framework for the division of property and superannuation interests between the parties, ensuring a fair and equitable outcome in this family law matter.

Orders

Orders of the court

That whenever a splittable payment is payable in respect of the superannuation interest of MR HAMMOND (“the husband”) in the [W] Superannuation Fund (“the Fund”):

(a) MS FITCH (“the wife) is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $108,000.00 at the operative time, being four (4) working days from the service of a certified copy of this Order on the trustee of the Fund (“the Trustee”);

(b) there is a corresponding reduction in the entitlement of the husband but for this order; and

That subject to the next succeeding Order hereof the parties must do all acts and execute all documents necessary to sell at market value the property known as Property W in Tasmania and comprised in Certificate of Title Volume [2] Folio 1 (“the property”) by private treaty and the property is to be listed for sale with such real estate agent (“the Agent”) as the parties may agree or, failing agreement, as nominated by the President of the Real Estate Institute of Tasmania.

That for the purposes of the preceding Order hereof:

(a) the listing price for the property shall be as agreed between the parties, or failing agreement, as determined by the Agent; and

(b) the husband must co-operate in every way with the Agent in relation to the marketing of the property including making a key available, allowing inspection of the property at times reasonably requested by the Agent and ensuring that the property is in a neat and clean condition at the time of inspection by any prospective purchasers

That if the property is not sold within three months of its listing for sale with the Agent, the parties must do all acts and execute all documents necessary to procure the sale of the property by public auction in accordance with the following:

(a) the parties must place the property with Auctioneers agreed between them or, failing agreement, as nominated by the President of the Real Estate Institute of Tasmania (“the Auctioneers”) for the sale of the property by public auction at the earliest reasonable time;

(b) the parties must execute all documents requested by the Auctioneers for the sale of the property;

(c) the reserve price for the sale of the property will be as agreed, or failing agreement, as determined by the Auctioneers;

(d) the parties must give instructions to a legal practitioner (mutually agreed upon by the parties or if they are unable to agree, a legal practitioner nominated by the President of the Law Society of Tasmania) for acting on the sale of the property including the preparation of a contract and such other documents as are necessary for the sale of the property;

(e) the husband must co-operate in every way with the Auctioneers in relation to the auction of the property including making a key available, allowing inspection of the property at times reasonably requested by the Auctioneers and ensuring that the property is in a neat and clean condition at the time of inspection by any prospective purchasers; and

(f) the parties (or their properly authorised agents) must attend at the auction sale in order to negotiate with the highest bidder if the highest bid does not reach the reserve price.

That until completion of the sale the husband has the right to occupy the property subject to paying council and water rate instalments and household building insurances as they fall due and keeping the property in a neat and clean condition.

That upon completion of the sale pursuant to these Orders, the proceeds of sale will be paid in the following manner and priority:

(a) payment of agents’ fees and commission due on the sale;

(b) payment of legal costs on the sale;

(c) payment of such fees as are necessary to discharge Mortgage No. [C] registered on the title to the property in favour of the Commonwealth Bank of Australia;

(d) payment of any liability to the husband’s mother not exceeding the sum of $86,468;

(e) payment to the wife of a sum calculated in accordance with the formula “S = 65% of (A plus $53,580.00) minus B” where:

(i) S = the sum payable to the wife;

(ii) A = the balance of the proceeds of sale of the property after payment of the amounts referred to in paragraphs (a), (b), (c) and (d) above; and

(iii) B = $16,695.00

(f) payment of the remaining balance to the husband.

That the husband must pay, indemnify the wife and keep her indemnified against any payment of money owed or claimed to be owed by the parties or either of them to the husband’s mother.

That unless otherwise specified in these Orders:

(a) each party will be solely entitled to the exclusion of the other to all property in the possession of such party as at this date;

(b) each party will be solely liable for and indemnify the other against any liability encumbering any form of property to which that party is entitled pursuant to these Orders;

That the parties and the Trustee each have liberty to apply in relation to the implementation of these orders.

10.

That save as to costs all extant applications are otherwise dismissed.

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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