Hawkins and Hawkins (No. 2) - [2015] FamCA 735

FAMILY COURT OF AUSTRALIA

HAWKINS & HAWKINS (NO. 2)

[2015] FamCA 735

PRACTICE AND PROCEDURE – Where the husband seeks interim orders that would allow him to solely execute the private contract for sale of the former matrimonial home – Where the wife opposes the husband’s application and the private sale of the former matrimonial home– Previous orders provide for sale of the former matrimonial home by auction – Contract for sale in question is financially advantageous and above the previously agreed reserve price for sale by auction – Where the former matrimonial home is heavily mortgaged and incurring further interest – Advantageous for the prospective sale to occur expeditiously in order to preserve the little equity remaining in relation to the former matrimonial home – Order pursuant to s 106A of the Family Law Act 1975 (Cth) that a registrar execute the contract for sale.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hawkins

RESPONDENT:

Ms Hawkins

FILE NUMBER:

BRC

6561

2007

DATE DELIVERED:

8 September 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

8 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Wright, Wrightway Legal

FOR THE RESPONDENT:

In person

Orders

IT IS ORDERED THAT:

Pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of the Family Court of Australia, Brisbane Registry be appointed, in the name of the Wife in default, to execute the contract of sale and transfer documentation relating to the sale of the property situated at B Street, Suburb C in the State of Queensland, and to do all such acts and things necessary to give validity and operation to these orders.

Subject to any objection made by any recipient of a subpoena, the parties have leave to inspect and copy any documentation produced upon subpoena already issued.

The subpoena hearing listed before the Registrar on 24 September 2015 be vacated.

By 4.00 pm on 10 September 2015 the Husband is to file and serve an affidavit
detailing each and every transaction he has made in relation to superannuation money or superannuation funds, annexing relevant bank statements or accounts detailing those transactions, since the parties’ separation.

Leave is given to the Wife by 4.00 pm on 11 September 2015 to file and serve an Application in a Case for litigation funding and a list of documents to be relied upon with such Application in a Case to be listed for hearing before the Honourable Justice Kent at 2.15 pm on 14 September 2015 at the Family Court of Australia, Brisbane Registry.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawkins & Hawkins (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6561 of 2007

MR HAWKINS

Applicant

And

MS HAWKINS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in a Case filed yesterday the husband seeks orders…

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.

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Details

Case: [2015] FamCA 735
Decision Date: 8 September 2015

CaseChat Overview and Summary

In *Hawkins and Hawkins (No. 2)*, the parties were husband and wife, and the dispute concerned property settlement and related procedural matters within the Family Court of Australia. The proceedings before Kent J involved the sale of a property and the disclosure of financial information, particularly concerning superannuation.

The court was required to determine several issues, including the appointment of a registrar to execute sale and transfer documentation for a property in the event of the wife's default, the inspection and copying of documents produced by subpoena, the vacation of a subpoena hearing, and the husband's obligation to provide an affidavit detailing all transactions relating to superannuation funds since separation, supported by relevant bank statements. Furthermore, the court considered the wife's application for litigation funding.

Kent J made orders pursuant to section 106A of the *Family Law Act 1975* (Cth) appointing a Registrar to execute the contract of sale and transfer documents for the property at B Street, Suburb C, Queensland, in default by the wife. The court also permitted parties to inspect and copy subpoenaed documents, vacated a scheduled subpoena hearing, and ordered the husband to file and serve an affidavit detailing his superannuation transactions since separation by a specified date, attaching supporting bank statements. Leave was granted to the wife to file and serve an application for litigation funding and a list of supporting documents, with this application to be heard by Justice Kent on a future date.

Orders

Orders of the court

IT IS ORDERED THAT:

Pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of the Family Court of Australia, Brisbane Registry be appointed, in the name of the Wife in default, to execute the contract of sale and transfer documentation relating to the sale of the property situated at B Street, Suburb C in the State of Queensland, and to do all such acts and things necessary to give validity and operation to these orders.

Subject to any objection made by any recipient of a subpoena, the parties have leave to inspect and copy any documentation produced upon subpoena already issued.

The subpoena hearing listed before the Registrar on 24 September 2015 be vacated.

By 4.00 pm on 10 September 2015 the Husband is to file and serve an affidavit

detailing each and every transaction he has made in relation to superannuation money or superannuation funds, annexing relevant bank statements or accounts detailing those transactions, since the parties’ separation.

Leave is given to the Wife by 4.00 pm on 11 September 2015 to file and serve an Application in a Case for litigation funding and a list of documents to be relied upon with such Application in a Case to be listed for hearing before the Honourable Justice Kent at 2.15 pm on 14 September 2015 at the Family Court of Australia, Brisbane Registry.

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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