Jarrott & Jarrott (No 2)

Case [2012] FamCAFC 72

FAMILY COURT OF AUSTRALIA

JARROTT & JARROTT (NO. 2) [2012] FamCAFC 72
FAMILY LAW ─ APPEAL ─ Re-exercise of trial Judge’s discretion ─ Where both parties requested the Court to do so ─ Where neither party sought to adduce further evidence for the purposes of the re-exercise of the trial Judge’s discretion ─ Trial Judge’s discretion re-exercised
Family Law Act 1975 (Cth) ss 75(2), 79
Allesch v Maunz (2000) 203 CLR 172
Coghlan & Coghlan (2005) FLC 93-220
Hickey & Hickey (2003) FLC 93-143
Jarrott & Jarrott [2012] FamCAFC 29
Kardos v Sarbutt (2006) 34 Fam LR 550
Norbis v Norbis (1986) 161 CLR 513
Pierce & Pierce (1999) FLC 92-844
APPELLANT: Mr Jarrott
RESPONDENT: Ms Jarrott
FILE NUMBER: SYC 1134 of 2009
APPEAL NUMBER: EAA 104 of 2011
DATE DELIVERED: 4 June 2012
PLACE DELIVERED: Sydney
PLACE HEARD: By way of written submissions
JUDGMENT OF: Coleman, May & Thackray JJ
HEARING DATE: 3 February 2012
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 12 August 2011
LOWER COURT MNC: [2011] FamCA 819

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lethbridge of Senior Counsel
SOLICITOR FOR THE APPELLANT: McDonell Milne Toltz Family Lawyers
SOLICITOR FOR THE RESPONDENT: Self Represented

Orders

In addition to the orders made on 2 March 2012, it is further ordered that:

  1. The parties shall do all things necessary and execute all documents to cause the property at U (“the former family home”) to be sold at a price agreed between the parties, and failing agreement as determined by the President of the Real Estate Institute of New South Wales or his nominee, and the proceeds of sale shall be disbursed in the following manner and priority:

    (a)payment of agent’s commission and legal expenses of the sale;

    (b)discharge of any mortgage secured over the former family home;

    (c)in the event of the proceeds of sale of the former family home being insufficient to meet the liabilities referred to in (a) and (b) thereof the husband shall indemnify the wife as to 62 per cent of such shortfall and the wife shall indemnify the husband as to 38 per cent of such shortfall;

    (d)in the event of the said proceeds of sale exceeding the liabilities referred to in (a) and (b), such surplus shall be divided in proportions 62 per cent to the husband and 38 per cent to the wife.

  2. The husband shall pay to the wife the sum of $722,355.46 within 42 days of the date of settlement of sale.

  3. Until the settlement of sale of the former family home the husband shall be responsible for mortgage payments and outgoings on the property, provided that the husband shall be entitled to apply any rental income generated by the former family home to the payment of such outgoings.

  4. Until the husband has complied with Order 2 hereof, the husband shall continue to pay $200 each week to the wife by way of spousal maintenance and for this purpose the wife shall provide to the…

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Jarrott & Jarrott (No 2) [2012] FamCAFC 72
Case
[2012] FamCAFC 72
Decision Date

CaseChat Overview and Summary

The matter of Jarrott & Jarrott (No 2) was heard in the Family Court of Australia. The case concerned a dispute between the husband and wife regarding the sale and division of their former family home. The legal issues at hand included the determination of the sale price of the property, the distribution of the proceeds from the sale, and the allocation of financial responsibilities between the parties. Additionally, the court was required to decide on spousal maintenance payments and the indemnification of tax liabilities incurred by the husband as a result of complying with the court's orders.

The court approached the matter by first considering the principles of property settlement under the Family Law Act. It assessed the contributions made by each party to the acquisition and maintenance of the property, as well as their respective needs and circumstances post-separation. The court recognised the wife's substantial financial contributions and her need for security, and the husband's ability to meet his financial obligations. The court concluded that an equal division of the proceeds from the sale of the former family home was appropriate, taking into account the specific contributions and needs of each party.

The court ordered the sale of the former family home and directed the parties to agree on the sale price or have it determined by a professional valuer. It stipulated that the proceeds should be used to cover the sale costs and mortgage, with any shortfall to be shared between the parties in proportion to their respective contributions. The court also ordered the husband to pay a lump sum to the wife and to continue making spousal maintenance payments until the lump sum was paid. Furthermore, the court provided for the indemnification of tax liabilities incurred by the husband as a result of complying with the orders.

The final orders included the sale of the former family home, the division of proceeds, payment of spousal maintenance, and indemnification of tax liabilities. The court ensured that the distribution of assets and financial responsibilities reflected the contributions and needs of each party, providing a fair outcome in the context of the overall property settlement.

Orders

Orders of the court

In addition to the orders made on 2 March 2012, it is further ordered that:

1.

The parties shall do all things necessary and execute all documents to cause the property at U (“the former family home”) to be sold at a price agreed between the parties, and failing agreement as determined by the President of the Real Estate Institute of New South Wales or his nominee, and the proceeds of sale shall be disbursed in the following manner and priority:

(a) payment of agent’s commission and legal expenses of the sale;

(b) discharge of any mortgage secured over the former family home;

(c) in the event of the proceeds of sale of the former family home being insufficient to meet the liabilities referred to in (a) and (b) thereof the husband shall indemnify the wife as to 62 per cent of such shortfall and the wife shall indemnify the husband as to 38 per cent of such shortfall;

(d) in the event of the said proceeds of sale exceeding the liabilities referred to in (a) and (b), such surplus shall be divided in proportions 62 per cent to the husband and 38 per cent to the wife.

2.

The husband shall pay to the wife the sum of $722,355.46 within 42 days of the date of settlement of sale.

3.

Until the settlement of sale of the former family home the husband shall be responsible for mortgage payments and outgoings on the property, provided that the husband shall be entitled to apply any rental income generated by the former family home to the payment of such outgoings.

4.

Until the husband has complied with Order 2 hereof, the husband shall continue to pay $200 each week to the wife by way of spousal maintenance and for this purpose the wife shall provide to the husband details of a bank account into which such payments shall be made.

5.

In the event of the husband incurring a capital gains tax or other taxation liability arising out of or in relation to his interest in the D Group as a consequence of his compliance with Order 2, the parties shall each indemnify the other and the wife pay 38 per cent of that shortfall and the husband the balance.

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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