Holland and Holland - [2016] FCCA 1547

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLLAND & HOLLAND

[2016] FCCA 1547

Catchwords:
FAMILY LAW – Consent for Wife to institute proceedings under s.79 of the Family Law Act 1975 (Cth) out of time – leave granted pursuant to s.44(3) of the Act – where Husband receives inheritance 3 years after separation – whether inheritance should be included in property pool – inheritance treated as financial resource under s.75(2) – only asset in property pool is former matrimonial home – modest pool – final orders made.

Legislation:

Family Law Act 1975, ss.4, 44, 75, 79, 106A

Cases cited:
Bonnici & Bonnici (1992) FLC 92 – 272
Burke & Burke (1993) FLC 92 – 356
Jarrott & Jarrott (No 2) [2012] FamCAFC 72
Singerson and Joans [2014] FamCAFC 238
Stanford v Stanford [2012] HCA 52; 47 Fam LR 481; (2012) FLC 93-518
Wall & Wall (2002) FLC 93 – 110

Applicant:

MS HOLLAND

Respondent:

MR HOLLAND

File Number:

DGC 3242 of 2011

Judgment of:

Judge Jones

Hearing dates:

23 and 24 November 2015

Date of Last Submission:

27 April 2016

Delivered at:

Melbourne

Delivered on:

24 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Potter

Solicitors for the Applicant:

Bramich Legal

Counsel for the Respondent:

Ms Teicher

Solicitors for the Respondent:

Knox Family Law Specialists Pty Ltd

ORDERS

The Applicant Wife is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute proceedings under s.79 of the Act.
That within 90 days of these Orders the Wife pay the Husband $90,000.00.
That upon the Wife complying with Order (2), the Wife refinance the real property situated at Property L in the State of Victoria (“the Property L property”) into her own name and the Husband do all acts and things and sign such documents to facilitate such refinancing and to transfer the title of the Property L property to the Wife at the sole expense of the Wife.
In the event that the Husband defaults in executing any document necessary for the refinancing of the Property L property by the Wife or transfer of title of the Property L property to the Wife pursuant to s.106A of the Act, a Registrar or Deputy Registrar of the Federal Circuit Court at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders; and
(a)the Husband is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this Order and providing her damages; and
(b)for the purpose of this Order, an affidavit setting out the Husband’s failure to comply with the Orders shall be sufficient evidence of neglect and default.
In the event the Wife fails to comply with Order (2) and/or Order (3) so far as refinancing of the Property L property is concerned, the Property L property forthwith be placed on the market for private sale…

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: [2016] FCCA 1547
Decision Date: 24 June 2016

CaseChat Overview and Summary

In a proceeding before Judge Jones, the applicant wife sought leave to institute proceedings under section 79 of the *Family Law Act 1975* (Cth) concerning property division. The dispute involved the division of assets, particularly a property located in Victoria, and the financial obligations of each party in relation to its disposition.

The court was required to determine the terms of property adjustment between the parties, including the payment of a sum by the wife to the husband, the refinancing and transfer of a specific property into the wife's sole name, and the consequences of default by either party in complying with these orders. Furthermore, the court had to address the scenario where the wife failed to comply with the refinancing obligations, necessitating the sale of the property. The court also had to determine the distribution of sale proceeds and the interim arrangements for the occupation of the former matrimonial home.

Judge Jones ordered that the wife be granted leave to institute proceedings under section 79 of the Act. The wife was ordered to pay the husband $90,000 within 90 days. Upon this payment, the wife was to refinance the property into her name, with the husband to execute all necessary documents. In the event of the husband's default, a Registrar or Deputy Registrar was appointed to execute documents on his behalf, and the husband was to pay the wife's enforcement costs. If the wife failed to comply with the refinancing orders, the property was to be placed on the market for private sale, with provisions for agreeing on an agent and reserve price, including mechanisms for dispute resolution. Pending transfer or sale, the wife was granted sole use and occupation of the former matrimonial home and was responsible for associated payments. Upon sale, proceeds were to be applied first to sale costs, then to discharge encumbrances, with the remaining balance distributed 62% to the wife and 38% to the husband. Otherwise, each party was to retain property in their possession.

Orders

Orders of the court

The Applicant Wife is granted leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute proceedings under s.79 of the Act.

That within 90 days of these Orders the Wife pay the Husband $90,000.00.

That upon the Wife complying with Order (2), the Wife refinance the real property situated at Property L in the State of Victoria (“the Property L property”) into her own name and the Husband do all acts and things and sign such documents to facilitate such refinancing and to transfer the title of the Property L property to the Wife at the sole expense of the Wife.

In the event that the Husband defaults in executing any document necessary for the refinancing of the Property L property by the Wife or transfer of title of the Property L property to the Wife pursuant to s.106A of the Act, a Registrar or Deputy Registrar of the Federal Circuit Court at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders; and

(a) the Husband is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this Order and providing her damages; and

(b) for the purpose of this Order, an affidavit setting out the Husband’s failure to comply with the Orders shall be sufficient evidence of neglect and default.

In the event the Wife fails to comply with Order (2) and/or Order (3) so far as refinancing of the Property L property is concerned, the Property L property forthwith be placed on the market for private sale with a reserve to be agreed between the parties and with an agent to be agreed between the parties.

In the event the parties cannot agree on an agent or a reserve price they shall:

(a) in the event of a dispute about an agent, jointly seek that the President of the Real Estate Institute of Victoria (“REIV”) nominate an agent; and

(b) in the event of a dispute about a reserve price, have the agent appointed by the parties or pursuant to paragraph (6)(a) set the reserve.

Pending the transfer of title or sale of the Property L property the Wife shall have sole use and occupation of the former matrimonial home and shall pay all outstanding interest payments on the (omitted) Bank Home Equity Line of Credit together with all rates and taxes as they fall due and shall otherwise be responsible for any amounts outstanding as at the day of making the Orders.

Upon the completion of the proceeds of sale, the proceeds be applied:

(a) first, to pay the costs, commission and other expenses of the sale;

(b) second, to discharge the mortgage and any other encumbrance affecting the real property;

(d) fourth, to pay the Husband 38%.

Otherwise, both parties retain all property in their possession as of this date including superannuation interests.

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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