Hogan and Orwell - [2016] FamCA 505

FAMILY COURT OF AUSTRALIA

HOGAN & ORWELL

[2016] FamCA 505

FAMILY LAW – SPOUSAL MAINTENANCE – Application by the wife that the husband contribute one half of the monthly mortgage payments with respect to the former matrimonial – where the husband has contributed to the mortgage since separation – where the husband says that he can no longer contribute to the mortgage due to other liabilities of the parties –where the wife disputes any significant change in the financial circumstances of the parties – no evidence to demonstrate a change in the husband’s financial circumstances – where the husband consents to the sale of an investment property in the event that he cannot contribute to the mortgage – interim orders made that the husband contribute to the mortgage repayments over the former matrimonial home and for the sale of an investment property in the event of his default

Family Law Act 1975 (Cth)

Brown & Brown [2007] FamCA 151; (2007) FLC 93-316

APPLICANT:

Ms Hogan

RESPONDENT:

Mr Orwell

FILE NUMBER:

MLC

11219

2015

DATE DELIVERED:

22 June 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

8 June 2016

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

(1)That until further order the husband pay or cause to be paid to the Bendigo and Adelaide Bank as and when they fall due, one half of the monthly repayments due on the mortgage secured over the property situate at and known as B Street, Suburb A in the State of Victoria (“the Suburb A property”).
(2)That in the event of the husband’s non-compliance with paragraph 1 hereof for a period of 30 days, the parties forthwith do all acts and things and sign all documents necessary to cause the property situate at and known as C Street, Suburb D in the State of Victoria (“the Suburb D property”) to be sold on such terms and conditions as agreed between them and in default of agreement as follows:-
(a)By a licensed real estate agent (“the Estate Agent”), either as appointed by the parties, or failing agreement, the Estate Agent as appointed by the President of the Real Estate Institute of Victoria; and
(b)At an agreed reserve price, or failing agreement at a price to be determined by the Estate Agent.

(3)That there be liberty to apply with respect to the terms and conditions of the sale of the Suburb D property.
(4)That the proceeds of sale of the Suburb D property be applied as follows:-
(a)First, to pay the costs of and incidental to the sale including agent’s commission and advertising;
(b)Second, such amount as required to discharge the mortgage secured over the Suburb D property;
(c)Thirdly, to apply such sum as is required to discharge any arrears outstanding with respect to the mortgage on the Suburb A Property;
(d)Fourth, the balance then remaining to be paid into an interest-bearing account in the names of the parties to be applied as follows:-
(i) In…

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 Hogan and Orwell

Details

AGLC: Hogan and Orwell [2016] FamCA 505
Case: [2016] FamCA 505
Decision Date: 22 June 2016

CaseChat Overview and Summary

In the matter of Hogan and Orwell, Johns J considered an application concerning property division and mortgage repayments. The dispute involved the parties' respective liabilities for mortgage payments on two properties, one located on B Street in Suburb A and another on C Street in Suburb D, both in Victoria.

The court was required to determine the immediate obligations of the husband regarding mortgage repayments on the Suburb A property and the consequences of non-compliance. Specifically, the court had to decide how to address the potential sale of the Suburb D property, including the appointment of an agent and the setting of a reserve price, and how the proceeds of such a sale should be distributed. Furthermore, the court needed to address the husband's liability for any interest and costs arising from past defaults on the Suburb A property mortgage.

Johns J ordered that the husband was to pay half of the monthly mortgage repayments for the Suburb A property. In the event of the husband's default for 30 days, the parties were to take steps to sell the Suburb D property, with provisions for appointing a real estate agent and setting a reserve price if agreement could not be reached. The proceeds of the Suburb D property sale were to be applied first to sale costs, then to discharge the mortgage on the Suburb D property, followed by any arrears on the Suburb A property mortgage. The remaining balance was to be held in an interest-bearing account, with a portion allocated to the husband's ongoing liability for the Suburb A property mortgage and the ultimate balance held on trust pending further order. The husband's liability for interest and costs related to past defaults on the Suburb A property mortgage was reserved for the trial judge, and the parties' applications were otherwise dismissed.

Orders

Orders of the court

(1) That until further order the husband pay or cause to be paid to the Bendigo and Adelaide Bank as and when they fall due, one half of the monthly repayments due on the mortgage secured over the property situate at and known as B Street, Suburb A in the State of Victoria (“the Suburb A property”).

(2) That in the event of the husband’s non-compliance with paragraph 1 hereof for a period of 30 days, the parties forthwith do all acts and things and sign all documents necessary to cause the property situate at and known as C Street, Suburb D in the State of Victoria (“the Suburb D property”) to be sold on such terms and conditions as agreed between them and in default of agreement as follows:-

(a) By a licensed real estate agent (“the Estate Agent”), either as appointed by the parties, or failing agreement, the Estate Agent as appointed by the President of the Real Estate Institute of Victoria; and

(b) At an agreed reserve price, or failing agreement at a price to be determined by the Estate Agent.

(3) That there be liberty to apply with respect to the terms and conditions of the sale of the Suburb D property.

(4) That the proceeds of sale of the Suburb D property be applied as follows:-

(a) First, to pay the costs of and incidental to the sale including agent’s commission and advertising;

(b) Second, such amount as required to discharge the mortgage secured over the Suburb D property;

(c) Thirdly, to apply such sum as is required to discharge any arrears outstanding with respect to the mortgage on the Suburb A Property;

(d) Fourth, the balance then remaining to be paid into an interest-bearing account in the names of the parties to be applied as follows:-

(i) In payment of the husband’s liability under the mortgage to the Suburb A property pursuant to order 1 hereof; and

(ii) The balance remaining to be held on trust until further order.

(5) That the question of the husband’s liability with respect to interest and costs incurred as a result of his failure to meet the mortgage liability secured against the Suburb A property be reserved to the trial judge.

(6) That the wife’s Application in a Case filed 21 April 2016 and the husband’s Response to an Application in a Case filed 3 June 2016 be 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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