Heed and Heed - [2008] FamCA 79

FAMILY COURT OF AUSTRALIA

HEED & HEED

[2008] FamCA 79

FAMILY LAW - PROPERTY SETTLEMENT – Contributions – Adjustment for other matters

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

In the Marriage of Hickey (2003) 30 Fam LR 355
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
VAK & AK [2005] FamCA 803
In the Marriage of Pellegrino (1997) 22 Fam LR 474
Kessey v Kessey (1994) FLC 92-495
In the Marriage of Lee Steere (1985) 10 Fam LR 431
In the Marriage of Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844

APPLICANT:

Mr Heed

RESPONDENT:

Mrs Heed

FILE NUMBER:

SYF

4154

2006

DATE DELIVERED:

19 February 2008

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATE:

14 & 15 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr R. M. Schonell
SOLICITOR FOR THE APPLICANT:	Turner Whelan Solicitors

COUNSEL FOR THE RESPONDENT:	Mr W. Washington
SOLICITOR FOR THE RESPONDENT:	Shana Radnan Solicitor

Orders

That the parties forthwith do all acts and sign all documents necessary to cause the property at L, being all of the land contained in Folio Identifier …, to be sold and the proceeds of sale divided as follows:-
(a)In payment of the Agent’s commission, auction expenses, if any, and legal expenses of the sale;
(b)In payment of the outstanding mortgage to Homeside;
(c)In payment of 51.5% of the balance to the husband; and
(d)In payment of the remainder to the wife.
In order to facilitate the sale in accordance with Order 1 herein:-
(a)That within seven days of the date of these Orders the parties agree on an Agent to act on their behalf with respect to the sale and failing agreement the parties shall jointly approach the President of the Real Estate Institute of New South Wales within seven days thereafter to request that the President appoint an Agent to act on their behalf and the parties shall each pay one-half of any expenses associated with such appointment;
(b)That within seven days the parties shall agree on a Solicitor or Conveyancer to act on their behalf with respect to the sale and failing agreement the parties shall jointly approach the President of the Law Society of New South Wales within seven days thereafter to request that the President appoint a Solicitor to act on their behalf and the parties shall each pay one-half of any expenses associated with such appointment;
That within 21 days of the date of these Orders the wife make available for collection by the husband the piano and the husband’s tools and fishing rods, contained within the former matrimonial home.
Ownership…

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

AGLC: Heed and Heed [2008] FamCA 79
Case: [2008] FamCA 79
Decision Date: 19 February 2008

CaseChat Overview and Summary

This matter concerned orders made by Judicial Registrar Loughnan in the Family Court of Australia, resolving a dispute between a husband and wife regarding the division of their property. The primary dispute revolved around the sale of a property and the distribution of its proceeds, as well as the allocation of various other assets and liabilities.

The court was required to determine the manner in which the parties' property and liabilities should be divided. This included specifying the process for the sale of a jointly owned property, the order of priority for the distribution of sale proceeds, and the allocation of specific assets such as vehicles, personal effects, and a tyre. Furthermore, the court needed to address the responsibility for outstanding liabilities and the mechanism for enforcing the orders made.

Judicial Registrar Loughnan ordered that the property be sold and the proceeds applied first to the costs of sale, then to an outstanding mortgage, with the balance divided 51.5% to the husband and the remainder to the wife. The orders also stipulated a process for agreeing on or appointing an agent and solicitor for the sale, and for the wife to make certain items available to the husband. Specific vehicles were allocated to each party, and generally, each party was to retain assets and liabilities in their sole name, with provisions for indemnification. To ensure compliance, the court included a provision under section 106A of the *Family Law Act 1975* empowering a Registrar to execute documents on behalf of a defaulting party.

Orders

Orders of the court

That the parties forthwith do all acts and sign all documents necessary to cause the property at L, being all of the land contained in Folio Identifier …, to be sold and the proceeds of sale divided as follows:-

(a) In payment of the Agent’s commission, auction expenses, if any, and legal expenses of the sale;

(b) In payment of the outstanding mortgage to Homeside;

(d) In payment of the remainder to the wife.

In order to facilitate the sale in accordance with Order 1 herein:-

(a) That within seven days of the date of these Orders the parties agree on an Agent to act on their behalf with respect to the sale and failing agreement the parties shall jointly approach the President of the Real Estate Institute of New South Wales within seven days thereafter to request that the President appoint an Agent to act on their behalf and the parties shall each pay one-half of any expenses associated with such appointment;

(b) That within seven days the parties shall agree on a Solicitor or Conveyancer to act on their behalf with respect to the sale and failing agreement the parties shall jointly approach the President of the Law Society of New South Wales within seven days thereafter to request that the President appoint a Solicitor to act on their behalf and the parties shall each pay one-half of any expenses associated with such appointment;

That within 21 days of the date of these Orders the wife make available for collection by the husband the piano and the husband’s tools and fishing rods, contained within the former matrimonial home.

Ownership of the aeroplane tyre, currently in the L property shall pass to the husband, who shall immediately transfer that tyre to the child, D.

The wife retain sole right, title and interest to the Honda Acclaim and Daewoo Nubira motor vehicles and the husband retain sole right, title and interest to the Toyota Corolla motor vehicle.

That except as otherwise specified herein, each party retain sole right, title and interest to any other assets or resources currently in their respective sole name or possession, including but not limited to furniture, personal effects, chattels, shares, funds held in any superannuation fund, redundancy entitlements, interest in any family trust or company.

Each party retain sole responsibility for any liabilities in their respective sole name including but not limited to credit card debts, loans from family members and each party shall indemnify and keep the other indemnified with respect to all such liabilities.

Both parties shall do all acts and things and sign all documents necessary to give effect to these Orders and in the event either party refuses or neglects to do such act or thing or sign such document within seven days of such act or thing being required or such document being submitted to them for signature, then pursuant to Section 106A of the Family Law Act 1975, a Registrar of the Family Court shall have power to do such act or thing or sign such document on behalf of the defaulting party.

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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