HARRICK & HARRICK - [2019] FamCA 739

FAMILY COURT OF AUSTRALIA

HARRICK & HARRICK

[2019] FamCA 739

FAMILY LAW – ENFORCEMENT OF ORDERS – where the wife seeks enforcement of final property consent orders made in 2011 – where the Court finds the husband is indebted to the wife – orders made for the payment of debt by the husband to the wife plus interest.

FAMILY LAW – COSTS – party and party basis costs payable by the husband to the wife as agreed and failing agreement fixed by the Court.

Family Law Act 1975 (Cth) ss 105, 117

McMillan & McMillan [2016] FamCA 387

APPLICANT:

Ms Harrick

RESPONDENT:

Ms Tasker as Case Guardian for Mr Harrick

FILE NUMBER:

TVC

111

2011

DATE DELIVERED:

18 October 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Townsville

JUDGMENT OF:

Baumann J

HEARING DATE:

4 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Fellows

SOLICITOR FOR THE APPLICANT:

Giudes & Elliott Solicitors

SOLICITOR FOR THE RESPONDENT:

Mr L Brandon
Evans Brandon Family Lawyers

Orders

That the Court declares that the Respondent, MR HARRICK is indebted to the Applicant MS HARRICK in the sum of $47,020.91 payable within thirty (30) days.
That the Respondent shall pay to the Applicant at the rate of 5% per annum on a simple interest calculation as follows:
(a)On the sum of $80,000 from 1 October 2016 to 25 October 2018;
(b)On the sum of $47,020 from 25 October 2018 to repayment of the sum, together with interest and costs, as set out in Order 3.
That the Respondent pay the Applicant’s costs of these enforcement proceedings on a party and party basis calculated under the Family Law Rules 2004 as agreed and failing agreement as fixed by the Court.
That within twenty one (21) days of the date of this Order, the parties shall submit an order in agreed terms that in default of the payment by the Respondent within thirty (30) days of the funds payable under this Order, the Applicant be appointed as Trustee for the purpose of effecting a sale of the property at Lot …, B Street, Town C, more particularly described as Lot 1 on RP .., County of …, Parish of …, Title Reference ….

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrick & Harrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 111 of 2011

Ms Harrick

Applicant

And

Ms Tasker as Case Guardian for Mr Harrick

Respondent

REASONS FOR JUDGMENT

Introduction

On 26 August 2011 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 HARRICK & HARRICK

Details

AGLC: HARRICK & HARRICK [2019] FamCA 739
Case: [2019] FamCA 739
Decision Date: 18 October 2019

CaseChat Overview and Summary

In the matter of *Harrick & Harrick*, Ms Harrick (the Applicant) sought the enforcement of final property consent orders made in 2011 against Mr Harrick (the Respondent). The Court found that the Respondent was indebted to the Applicant.

The primary legal issue before the Court was the enforcement of the existing property consent orders and the determination of the quantum of the Respondent's indebtedness to the Applicant. The Court was also required to consider the appropriate orders for the payment of this debt, including the accrual of interest, and the allocation of costs for the enforcement proceedings.

Baumann J reasoned that the Respondent was indebted to the Applicant in the sum of $47,020.91. The Court ordered that this sum be paid within thirty days. Further, the Court ordered simple interest to be paid on specific sums from particular dates until repayment, at a rate of 5% per annum. Costs were ordered to be paid by the Respondent to the Applicant on a party and party basis, to be agreed or fixed by the Court. In default of payment within thirty days, the Court also ordered that the Applicant be appointed Trustee for the sale of a specified property.

Orders

Orders of the court

That the Court declares that the Respondent, MR HARRICK is indebted to the Applicant MS HARRICK in the sum of $47,020.91 payable within thirty (30) days.

That the Respondent shall pay to the Applicant at the rate of 5% per annum on a simple interest calculation as follows:

(a) On the sum of $80,000 from 1 October 2016 to 25 October 2018;

(b) On the sum of $47,020 from 25 October 2018 to repayment of the sum, together with interest and costs, as set out in Order 3.

That the Respondent pay the Applicant’s costs of these enforcement proceedings on a party and party basis calculated under the Family Law Rules 2004 as agreed and failing agreement as fixed by the Court.

That within twenty one (21) days of the date of this Order, the parties shall submit an order in agreed terms that in default of the payment by the Respondent within thirty (30) days of the funds payable under this Order, the Applicant be appointed as Trustee for the purpose of effecting a sale of the property at Lot …, B Street, Town C, more particularly described as Lot 1 on RP .., County of …, Parish of …, Title Reference ….

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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