JOHANSON & JOHANSON - [2012] FamCA 1045

FAMILY COURT OF AUSTRALIA

JOHANSON & JOHANSON

[2012] FamCA 1045

FAMILY LAW – Exclusive occupancy. No basis for any orders. Partial property. Basis to make an order.

Family Law Act 1975 (Cth)

Bing and Bing [2007] FamCA 418, (2007) FLC 93-318
Burke v Burke [1987] 2 FLR 71
G v J (Ouster order) [1993] 1 FLR 1008
Scholte and Scholte (unreported, the Full Court Kay, Holden and Monteith JJ, 7 February 2002
Sieling and Sieling (1979) FLC 90-627
Strahan and Strahan [2009] FamCAFC 166, 241 FLR 1, (2011) FLC 93-466

APPLICANT:

Ms Johanson

RESPONDENT:

Mr Johanson

FILE NUMBER:

MLC

3997

2012

DATE DELIVERED:

29 November 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

29 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Combes

SOLICITOR FOR THE APPLICANT:

Mathews Family Law

COUNSEL FOR THE RESPONDENT:

Mr Edmunds

SOLICITOR FOR THE RESPONDENT:

MDG Lawyers

Orders

That the application by the wife and the husband for injunctive relief by way of an order for the sole use and occupation of the real property at B Street, Suburb C is refused.
That the husband pay to the wife the sum of $4,000,000 on or before 28 February 2013 or such other time as may be agreed between the parties by way of interim distribution of property pursuant to s 79 of the Family Law Act 1975.
For the purposes of paragraph 2 hereof, the husband do all acts and things necessary to authorise the appropriate entity to sell such D Pty Ltd shares as may be necessary to effect the payment referred to in paragraph 2.
That the interim orders ought in both the amended application of the wife filed 31 August 2012 and the response of the husband filed 16 July 2012 save as to issues of spousal maintenance are otherwise dismissed.
That subject to submissions otherwise, the costs of both parties of this proceeding are reserved to the trial judge.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Johanson & Johanson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3997 of 2012

Ms Johanson

Applicant

And

Mr Johanson

Respondent

REASONS FOR JUDGMENT

This interim dispute has two issues. The first is, who should remain living in the parties’ home at B Street, Suburb C pending the final hearing of the property dispute between the parties? Secondly, what (if any) interim property distribution in favour of the wife should now be made?
Each party sought orders for sole use and occupation of the Suburb C property. In my view, there is not sufficient evidence to justify an order in favour of either party.
In respect of the second issue, the wife sought $1 million as well…

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 JOHANSON & JOHANSON

Details

AGLC: JOHANSON & JOHANSON [2012] FamCA 1045
Case: [2012] FamCA 1045
Decision Date: 29 November 2012

CaseChat Overview and Summary

In *Johanson & Johanson*, the parties, husband and wife, sought injunctive relief concerning the sole use and occupation of a property at B Street, Suburb C. The matter came before Cronin J.

The primary legal issue before the court was whether to grant an injunction for the sole use and occupation of the matrimonial home. Additionally, the court was required to determine the terms of an interim distribution of property pursuant to section 79 of the *Family Law Act 1975* (Cth).

Cronin J refused the application for injunctive relief regarding the sole use and occupation of the property. However, the court ordered an interim property distribution, requiring the husband to pay the wife $4,000,000 by 28 February 2013, or another agreed date. To facilitate this payment, the husband was directed to take all necessary steps to authorise the sale of sufficient D Pty Ltd shares. The court also dismissed the amended application of the wife and the response of the husband, except in relation to spousal maintenance, and reserved costs to the trial judge.

Orders

Orders of the court

That the application by the wife and the husband for injunctive relief by way of an order for the sole use and occupation of the real property at B Street, Suburb C is refused.

That the husband pay to the wife the sum of $4,000,000 on or before 28 February 2013 or such other time as may be agreed between the parties by way of interim distribution of property pursuant to s 79 of the Family Law Act 1975.

For the purposes of paragraph 2 hereof, the husband do all acts and things necessary to authorise the appropriate entity to sell such D Pty Ltd shares as may be necessary to effect the payment referred to in paragraph 2.

That the interim orders ought in both the amended application of the wife filed 31 August 2012 and the response of the husband filed 16 July 2012 save as to issues of spousal maintenance are otherwise dismissed.

That subject to submissions otherwise, the costs of both parties of this proceeding are reserved to the trial judge.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.