FAMILY COURT OF AUSTRALIA
| ISMAIL & ELFAR | [2011] FamCA 716 |
| FAMILY LAW - PROPERTY SETTLEMENT - Non-disclosure of assets - Long marriage - One party conceals monies in children's bank accounts – Small adjustment in relation to domestic violence |
| Family Law Act 1975 (Cth) |
| Townsend & Townsend (1995) FLC 92-569 Farnell & Farnell (1996) FLC 92-681 Chorn & Hopkins (2004) FLC 93-204 Omacini & Omacini (2005) FLC 93-281 Kennon & Kennon (1997) FLC 92-757 Weir & Weir (1993) FLC 92-338 Black & Kelner (1992) FLC 92-287 Tomesetti & Tomesetti (2000) FLC 93-023 |
| APPLICANT: | Ms Ismail |
| RESPONDENT: | Mr Elfar |
| FILE NUMBER: | PAC | 2898 | of | 2007 |
| DATE DELIVERED: | 9 September 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATES: | 17, 18 & 19 November 2008; 1, 2 and 3 June 2009; 27 and 28 January 2010; 24 and 25 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rich |
| SOLICITOR FOR THE APPLICANT: | Sterling Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Judge |
| SOLICITOR FOR THE RESPONDENT: | John Spence & Associates, Solicitors |
Orders
That the husband pay to the wife, within two (2) months of the date of these orders or such other time as the parties shall in writing agree, the sum of $555,675.
That the husband do all things and execute all documents necessary to discharge the existing mortgage secured over the property situate and known as M Street, Sydney Suburb 1 (hereinafter called “the property”) so as to relieve the wife from any obligation whatsoever in respect of any existing mortgage.
That the husband simultaneously with payment to the wife, hand to the wife documents evidencing the discharge of the existing mortgage.
That immediately upon payment of the sum of money required to be paid pursuant to Order 1 above, and upon the husband complying with Orders 2 and 3 above, the wife shall provide to the husband a memorandum of transfer in registrable form together with any other necessary document required to transfer to the husband her right, title and interest in the property, and to transfer to the husband the ownership of the contents in and about the said property.
That in the event that the husband does not pay the sum ordered to be paid in Order 1 above, within the time specified, and does not comply with Orders 2 and 3 above then the wife shall within a further period of two (2) months (ie, within four (4) months of the date of these Orders) or such other time as the parties shall in writing agree, pay to the husband the sum of $99,344.
That the wife do all things and execute all documents necessary to discharge the existing mortgage secured over the property so as to relieve the husband from any obligation whatsoever in respect of any existing mortgage.
That the wife simultaneously with payment to the husband, hand to the husband documents evidencing the discharge of the existing mortgage.
That immediately upon payment of the sum of money to be paid…
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- AGLC
- Ismail v Elfar [2011] FamCA 716
- Case
- [2011] FamCA 716
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of the property settlement, including the valuation and transfer of the M Street property, the discharge of existing mortgages, and the distribution of proceeds from any sale. Further issues included the disposition of the contents within the property and the final division of all real and personal property between the parties. The court also had to address the consequences of non-compliance with its orders by either party.
Collier J ordered that the husband pay the wife $555,675 within two months, and take steps to discharge the mortgage over the M Street property, receiving the wife's interest in return. Alternatively, if the husband failed to comply, the wife had a further two months to pay the husband $99,344 and receive his interest in the property. Should neither party comply with these initial payment provisions, the property was to be listed for sale, first by private treaty and then by auction if necessary, with specific provisions for setting a reserve price and appointing an auctioneer. The proceeds of any sale were to be applied first to sale costs, then to discharge any remaining mortgage, with 85% of the balance to the wife and the remainder to the husband. Provisions were also made for the acquisition or sale of the contents of the property, and for the husband to vacate the property to provide vacant possession. Each party was otherwise entitled to their existing property, and all outstanding applications were dismissed.
Orders
Orders of the court
1.
That the husband pay to the wife, within two (2) months of the date of these orders or such other time as the parties shall in writing agree, the sum of $555,675.
2.
That the husband do all things and execute all documents necessary to discharge the existing mortgage secured over the property situate and known as M Street, Sydney Suburb 1 (hereinafter called “the property”) so as to relieve the wife from any obligation whatsoever in respect of any existing mortgage.
3.
That the husband simultaneously with payment to the wife, hand to the wife documents evidencing the discharge of the existing mortgage.
4.
That immediately upon payment of the sum of money required to be paid pursuant to Order 1 above, and upon the husband complying with Orders 2 and 3 above, the wife shall provide to the husband a memorandum of transfer in registrable form together with any other necessary document required to transfer to the husband her right, title and interest in the property, and to transfer to the husband the ownership of the contents in and about the said property.
5.
That in the event that the husband does not pay the sum ordered to be paid in Order 1 above, within the time specified, and does not comply with Orders 2 and 3 above then the wife shall within a further period of two (2) months (ie, within four (4) months of the date of these Orders) or such other time as the parties shall in writing agree, pay to the husband the sum of $99,344.
6.
That the wife do all things and execute all documents necessary to discharge the existing mortgage secured over the property so as to relieve the husband from any obligation whatsoever in respect of any existing mortgage.
7.
That the wife simultaneously with payment to the husband, hand to the husband documents evidencing the discharge of the existing mortgage.
8.
That immediately upon payment of the sum of money to be paid pursuant to Order 5 above and upon the wife complying with Orders 6 and 7 above the husband shall provide to the wife a memorandum of transfer in registrable form together with any other necessary documents required to transfer to the wife his right, title and interest in the property, and to transfer to the wife ownership of the contents in and about the said property.
9.
That in the event that the wife does not pay the sum ordered to be paid in Order 5 above within the time specified, and does not comply with Orders 6 and 7 above then the parties shall do all acts and execute all documents necessary to place the property on the market for sale, by private treaty, at a price agreed between the parties, or failing agreement at a price to be fixed by a valuer or real estate agent nominated by the President for the time being of the New South Wales Chapter of the Australian Institute of Valuers.
10.
In the event that a binding exchange of contracts for the property is not effected within a further three (3) months (that is within seven (7) months of these orders) or such other period as the parties shall in writing agree then the parties shall do all things and execute all documents necessary to sell the property by public auction. The Auctioneer shall be as agreed between the parties and failing agreement shall be as nominated by the President for the time being of the New South Wales Chapter of the Australian Institute of Valuers.
11.
The parties shall endeavour to agree upon a reserve price for the sale by auction and in the event they are unable to do so the reserve price shall be as fixed by the Auctioneer on the day of the auction sale.
12.
Upon completion of any sale pursuant to these orders the parties shall deal with and distribute the proceeds of sale as follows:
(a) In payment of all legal fees and disbursements properly incurred in such sale.
(b) In payment of all agents fees and commissions including auction expenses properly incurred in such sale.
(c) In payment and discharge of any mortgage secured over the subject property.
(d) In payment to the wife of 85 percent of the figure then arrived at.
(e) In payment to the husband of the balance then remaining.
13.
That in the event that the property is sold pursuant to Orders 9 or 10 above then the husband shall within seven (7) days of an exchange of contracts for that sale being effected notify the wife in writing of his intention to acquire the contents in and about the property. Thereafter the husband shall no later than three (3) days prior to completion of the sale pay to the wife the sum of $5,000 and shall remove such contents from the property by no later than midday on the day prior to the day for completion of any sale.
14.
That in the event that the husband does not within the time provided in Order 13 above notify the wife in writing of his intention to acquire the contents then the wife shall be entitled, within a further seven (7) days (fourteen (14) days from exchange of contracts being effected) notify the husband in writing of her intention to acquire the contents. The wife shall then no later than three (3) days prior to the completion of the sale pay to the husband the sum of $5,000 and shall remove the contents from the property by no later than midday on the day prior to the day for completion of any sale.
15.
In the event that neither party gives the notice to the other party in accordance with Orders 13 and 14 above then the parties shall do all acts and things necessary to sell the contents in and about the said property and to divide the net proceeds of sale equally between themselves.
16.
That in the event that the property is transferred to the wife, pursuant to the provisions of Order 5 above or is sold pursuant to the provisions of Order 9 or 10 above then the husband shall vacate the home no later than 12 noon on the day before the day fixed for either the wife’s payment to him of the sum specified in Order 5 above or completion of the sale to any purchaser of the property pursuant to Orders 9 or 10, so as to give vacant possession to either the wife or the purchaser as the case may be.
17.
That subject to the foregoing orders each party shall be entitled both at law and in equity to the exclusion of the other party to all real property, personal property, monies on deposit, motor vehicles, contents and any furniture, contents or chattels whatsoever in the possession or control of that party.
18.
I grant liberty to either party liberty to relist the matter upon seven (7) days notice in relation to the implementation of these orders or any of them.
19.
I dismiss all outstanding applications and cross applications.
20.
I remove all issues from the pending cases list.
21.
I order that all material produced on subpoena be returned not before 56 days from the date of these Orders.
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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