HAWKINS & HAWKINS - [2015] FamCA 284

FAMILY COURT OF AUSTRALIA

HAWKINS & HAWKINS

[2015] FamCA 284

FAMILY LAW – PROPERTY – Interim – Application in a Case by the husband as to the sale of a residential property where the wife has failed to meet mortgage repayments – Where sale of the residential property in these circumstances was provided for in earlier interim orders – Where the wife has purported to unilaterally execute a 10 year lease over the subject property – Where it is ordered that, if the wife has not terminated any further lease agreement within 14 days, the husband may apply to the Court for an urgent listing of an application under s 106B of the Family Law Act 1975 (Cth) to seek to have the transaction set aside.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hawkins

RESPONDENT:

Ms Hawkins

FILE NUMBER:

BRC

6561

2007

DATE DELIVERED:

20 April 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

20 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Wrightway Legal

FOR THE RESPONDENT:

In person

Orders

it is ordered until further order that:

BY CONSENT Paragraph 5(a) of the Order of 9 December 2014 be varied to provide for the agreed sale price for the property at B Street, Suburb C (“the Suburb C property”) to be $825,000.00.
BY CONSENT On the sale of the Suburb C property, the proceeds of sale shall be applied as follows:
(a)     as to the real estate agent’s commission and costs of sale;
(b)     as to outstanding Council and water rates;
(c)     as to legal costs of sale;
(d)     as to discharge of the mortgage; and
(e)     the balance remaining to Wrightway Legal trust account to be held pending final orders between the parties for property settlement.
The rental monies for the Suburb C property paid by the tenants to the Wife are to be paid directly to Commonwealth Bank of Australia mortgage account number ….
The Wife is to account to the Husband for all rental income paid to date in respect of the Suburb C property.

IT IS FURTHER ORDERED THAT:

If, within fourteen (14) days of the date of these Orders, the Wife has not ended or terminated any further lease arrangement concerning the Suburb C property beyond the term of the current tenancy, then the Husband is at liberty to seek an urgent listing of an application pursuant to s 106B of the Family Law Act 1975 (Cth) to have any such further lease arrangement set aside.
Leave is given to the Wife to correct her affidavit filed on 15 April 2015 by including page 13 to Annexure D.
Each party’s costs of and incidental to the Husband’s Application in a Case filed on 18 March 2015 be reserved to the trial of these proceedings.

NOTATION:

There is to be a compliance hearing before the Registrar of the Court at 2.15 pm on
21 September 2015 in respect of trial directions that have been made for the trial of
these…

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 HAWKINS & HAWKINS

Details

AGLC: HAWKINS & HAWKINS [2015] FamCA 284
Case: [2015] FamCA 284
Decision Date: 20 April 2015

CaseChat Overview and Summary

In the matter of HAWKINS & HAWKINS, Kent J of the Federal Circuit Court of Australia made orders concerning property settlement between the parties. The dispute involved the sale of a property located at B Street, Suburb C, and the distribution of its proceeds, as well as the management of rental income from that property.

The court was required to determine the agreed sale price for the Suburb C property and the order in which the proceeds of sale were to be applied. Additionally, the court needed to address the disposition of rental monies received by the Wife and the potential for the Wife to enter into further lease arrangements for the property beyond the current tenancy. The court also considered the Wife's application to correct an affidavit.

By consent, the court ordered that the agreed sale price for the Suburb C property be $825,000.00. The proceeds of sale were to be applied first to commission and costs of sale, then to outstanding rates, legal costs of sale, and the discharge of the mortgage, with the balance to be held in a trust account pending final property settlement orders. Rental monies paid to the Wife were to be directed to a specific Commonwealth Bank of Australia mortgage account, and the Wife was ordered to account to the Husband for all rental income received to date. The court granted the Wife leave to correct her affidavit. Costs of the Husband's application were reserved to the trial.

Orders

Orders of the court

it is ordered until further order that:

BY CONSENT Paragraph 5(a) of the Order of 9 December 2014 be varied to provide for the agreed sale price for the property at B Street, Suburb C (“the Suburb C property”) to be $825,000.00.

BY CONSENT On the sale of the Suburb C property, the proceeds of sale shall be applied as follows:

(a) as to the real estate agent’s commission and costs of sale;

(b) as to outstanding Council and water rates;

(d) as to discharge of the mortgage; and

(e) the balance remaining to Wrightway Legal trust account to be held pending final orders between the parties for property settlement.

The rental monies for the Suburb C property paid by the tenants to the Wife are to be paid directly to Commonwealth Bank of Australia mortgage account number ….

The Wife is to account to the Husband for all rental income paid to date in respect of the Suburb C property.

IT IS FURTHER ORDERED THAT:

If, within fourteen (14) days of the date of these Orders, the Wife has not ended or terminated any further lease arrangement concerning the Suburb C property beyond the term of the current tenancy, then the Husband is at liberty to seek an urgent listing of an application pursuant to s 106B of the Family Law Act 1975 (Cth) to have any such further lease arrangement set aside.

Leave is given to the Wife to correct her affidavit filed on 15 April 2015 by including page 13 to Annexure D.

Each party’s costs of and incidental to the Husband’s Application in a Case filed on 18 March 2015 be reserved to the trial of these proceedings.

NOTATION:

There is to be a compliance hearing before the Registrar of the Court at 2.15 pm on

21 September 2015 in respect of trial directions that have been made for the trial of

these proceedings listed for three (3) days commencing on 6 October 2015.

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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