Idelsohn and Idelsohn - [2017] FamCA 398

FAMILY COURT OF AUSTRALIA

IDELSOHN & IDELSOHN

[2017] FamCA 398

FAMILY LAW – PROPERTY – application by husband for a division of property - application by husband for a Gett – issue as to how to treat the paid legal fees including funds in trust – superannuation – contributions – where order is made to effect an overall division of property and superannuation assets in proportions where wife receives 65 per cent and husband receives 35 per cent in circumstances where Court is satisfied the wife’s overall contributions were greater than the husband’s – husband’s application for a Gett dismissed

Family Law Act 1975 (Cth)

Bevan & Bevan (2013) FLC 93-545
Chapman & Chapman [2014] FamCAFC 91
De Angelis & De Angelis [1999] FamCA 1609
Ferro & Kople [2016] FamCA 409

APPLICANT:

Mr Idelsohn

RESPONDENT:

Ms Idelsohn

FILE NUMBER:

SYC

5787

2014

DATE DELIVERED:

11 May 2017

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

27 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richard Schonell S.C.

SOLICITOR FOR THE APPLICANT:

Karras Partners

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

Mr Idelsohn (‘the husband’) and Ms Idelsohn (‘the wife’) shall do all acts and things necessary and execute all documents, instruments and writings needed to sell B Street, Suburb C being the whole of the property contained in Certificate of Title Folio Identifier … (‘the home’) and shall, including the following:-
1.1.Within twenty eight (28) days list the home for sale by public auction with a real estate agent as the parties may agree or failing their agreement a real estate agent nominated by Mr D (‘the single expert property valuer’);
1.2.Instruct such solicitor/s, as the parties may agree within twenty eight (28) days, to act in relation to the sale of the home. In the event that they are unable to agree, such solicitor shall be nominated by the President of the Law Society of New South Wales at the request of either party;
1.3.Execute all documents reasonably requested by the Real Estate Agents for the sale of the home;
1.4.Set a reserve price of $3,200,000, or such other sum as is agreed between the parties or in the event of a dispute to be determined by Mr D (‘the single expert real estate valuer’) at the request of either party if it is to be less than $3,200,000;
1.5.Co-operate with the agent in the presentation and promotion of the home for sale and equally pay such marketing costs as are required to be paid in advance;
1.6.Pay the costs of undertaking any agreed improvements to assist in the marketing of the home;
1.7.Maintain the home in a presentable state of repair;
1.8.Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and to accept a price not less than 5 per cent lower than the reserve price;
1.9.Co-operate in every way with the Auctioneer 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 Idelsohn and Idelsohn

Details

AGLC: Idelsohn and Idelsohn [2017] FamCA 398
Case: [2017] FamCA 398
Decision Date: 11 May 2017

CaseChat Overview and Summary

This matter concerned orders made by Benjamin J in the Family Court of Australia concerning the sale of the parties' home and the distribution of its proceeds, as well as the division of certain personal property. The dispute involved Mr Idelsohn (the husband) and Ms Idelsohn (the wife), who were required to cooperate in the sale of their property located at B Street, Suburb C.

The court was required to determine the specific terms and conditions under which the parties' home would be sold, including the method of sale, the setting of a reserve price, and the process for dealing with the property if the initial sale attempts were unsuccessful. Furthermore, the court needed to establish the priority of payments from the sale proceeds and the ultimate division of the net proceeds between the husband and wife. The court also made orders regarding the return of specific items of personal property to the husband.

Benjamin J ordered that the parties must take all necessary steps to sell the home, including listing it for sale by public auction within 28 days. The order stipulated a reserve price of $3,200,000, subject to determination by a nominated valuer if a lower price was disputed. The proceeds of sale were to be applied first to sale costs, then to legal costs, and finally, any remaining proceeds were to be divided with the wife receiving 65% less $64,523, and the husband receiving 35% plus $64,523. The court also ordered the wife to make available specific items of personal property to the husband within 28 days.

Orders

Orders of the court

Mr Idelsohn (‘the husband’) and Ms Idelsohn (‘the wife’) shall do all acts and things necessary and execute all documents, instruments and writings needed to sell B Street, Suburb C being the whole of the property contained in Certificate of Title Folio Identifier … (‘the home’) and shall, including the following:-

1.1. Within twenty eight (28) days list the home for sale by public auction with a real estate agent as the parties may agree or failing their agreement a real estate agent nominated by Mr D (‘the single expert property valuer’);

1.2. Instruct such solicitor/s, as the parties may agree within twenty eight (28) days, to act in relation to the sale of the home. In the event that they are unable to agree, such solicitor shall be nominated by the President of the Law Society of New South Wales at the request of either party;

1.3. Execute all documents reasonably requested by the Real Estate Agents for the sale of the home;

1.4. Set a reserve price of $3,200,000, or such other sum as is agreed between the parties or in the event of a dispute to be determined by Mr D (‘the single expert real estate valuer’) at the request of either party if it is to be less than $3,200,000;

1.5. Co-operate with the agent in the presentation and promotion of the home for sale and equally pay such marketing costs as are required to be paid in advance;

1.6. Pay the costs of undertaking any agreed improvements to assist in the marketing of the home;

1.7. Maintain the home in a presentable state of repair;

1.8. Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and to accept a price not less than 5 per cent lower than the reserve price;

1.9. Co-operate in every way with the Auctioneer in relation to the auction of the home; and

1.10. Execute all contracts and documents necessary to complete the sale.

Both the husband and wife shall each be permitted to bid at the auction of the home and if either the husband or wife acquire the home on such sale; such acquisition is to be treated as being made pursuant to these orders.

In the event that the home is not sold either:-

3.1. Pursuant to auction sale in accordance with Order 1 hereof; or

3.2. Within seven (7) days of the date of the auction by negotiation with the highest bidder, or otherwise;

then the husband and the wife shall do all acts and things necessary and execute all documents required to cause to be held a further auction of the home within two months after the date of the first auction and the terms of these Orders shall apply accordingly in relation to such further auction save and except that the reserve price shall be 5 per cent less than the reserve price nominated for the purposes of the prior auction.

Upon settlement of the sale of the home, the parties shall do all acts and things necessary to distribute the proceeds of sale of the home in the following manner and priority:-

4.1. In payment of contract adjustments incurred in the sale, if any;

4.2. In payment of agent's commission and any auction fees on sale;

4.3. In payment of legal costs and disbursements of the appointed solicitor acting on the sale for both parties;

4.4. In the even that either party has incurred reasonable costs (agreed by the parties in advance) in readying the property for sale and the other party has not contributed 50 per cent towards those costs; such amount shall be deducted from the share otherwise payable to the non-paying party and paid to the paying party; and

4.5. Subject to these orders, in payment to the wife of 65 per cent of the then remaining proceeds of sale less $64,523 and in payment to the husband of 35 per cent of the then remaining proceeds of sale plus $64,523.

Subject to the following order; within twenty eight (28) days the wife shall, make available for collection by the husband such of the following items of personal property, provided that they are in her possession or control and have not been previously provided to the husband:-

5.1. The white jewellery box formerly owned by the husband's mother together with the jewellery contained in that box, including a Victorian Brooch and jewellery;

5.2. The Victorian Brooch and other jewellery formerly owned by the husband's mother;

5.3. The set of crystal glassware, (being at least thirty (30) items) formerly owned by the husband's parents;

5.4. The crockery formerly owned by the husband's parents;

5.5. The old bedside table formerly belonging to the husband's grandmother; and

5.6. The husband's passport and other personal papers and documents.

5.7.

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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