FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANDON & LANDON | [2013] FCCA 709 |
| Catchwords: FAMILY LAW – Parenting dispute – lengthy relationship – wife bringing up four children and working for substantial periods when children young – husband greater earnings – contributions and future needs both equal – orders for equal division of property pool. |
| Legislation: Family Law Act 1975 (Cth), ss.69(2), 75(2) |
| Chang vSu (2002) FLC 93-117 Stanford v Stanford [2012] HCA 52 Erdem v Ozsoy [2012] FMCAfam 1323 |
| Applicant: | MS LANDON |
| Respondent: | MR LANDON |
| File Number: | MLC 9284 of 2011 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 11 April 2013 |
| Date of Last Submission: | 11 April 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Vivarini |
| Solicitors for the Applicant: | LaurasLaw Lawyers |
| The Respondent: | In person |
ORDERS
The wife be granted sole authority to attend to the urgent sale of the matrimonial home situate at and known as Property E forthwith.
In accordance with order 1 hereof, the wife attend to signing all documentation with the real estate agent of her choice to enable the house to be placed on the market forthwith.
After 45 days from the date of these orders the husband be ordered to vacate the property taking with him all his personal belongings to enable the house to be placed on the market.
The husband be directed to leave all existing chattels and fittings in the home as of this date.
The wife attend to any reasonable maintenance and/or repairs to assist the sale of the property and the costs to be borne by the wife at the time for the said repairs/maintenance be deducted from the settlement moneys due prior to any property settlement determined by this Court.
A copy of these orders be provided to the (omitted) Bank.
The proceeds of the sale of the matrimonial home be held on trust by the wife’s solicitors, and applied as set out in Order 8 below.
That the proceeds of sale of the Property E property be applied as follows:
(a)First, to pay all reasonable, costs, commissions and expenses of the sale;
(b)Secondly, to remove caveats registered on the property to enable the sale to proceed, namely Harwood Andrews caveat number (omitted) lodged 6 December 2011 and Australian Government Solicitor caveat number (omitted) lodged 29 June 2011.
(c)Thirdly, to discharge the registered mortgages to the (omitted) Bank (“the (omitted Bank) mortgage”).
(d)Fourthly, to pay the debts of the marriage:
(i)The debt owed to (omitted) College, in relation to unpaid school fees, the total of which is currently estimated at $18,572.95 (“unpaid school fees”) as at 2 April 2013.
(ii)The debt owed to (omitted) Services currently estimated at $7,089, plus any costs, interests and penalties which have accrued thereon (“(omitted) Services debt”);
(iii)The wife’s (omitted) Bank credit card, in her sole name in the amount of $7,000 as at the date of separation.
(iv)The husband’s (omitted) Bank credit card, in his sole name in the amount of $40,000 as…
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- Case
- [2013] FCCA 709
- Decision Date
CaseChat Overview and Summary
The court was required to determine the immediate steps for the sale of the matrimonial home, including who would have authority over the sale process and the timeframe for the husband's departure. Further, the court needed to establish the priority of payments from the sale proceeds, including costs, the discharge of existing financial encumbrances, and the settlement of various debts of the marriage. The court also had to address the division of other assets, including motor vehicles and superannuation, and the allocation of specific liabilities, particularly taxation liabilities.
Judge Burchardt ordered the wife to have sole authority for the urgent sale of the matrimonial home, including selecting the real estate agent and signing necessary documentation. The husband was directed to vacate the property within 45 days, leaving all existing chattels and fittings. The proceeds of the sale were to be applied first to sale costs, then to remove caveats lodged by Harwood Andrews and the Australian Government Solicitor, followed by the discharge of the bank mortgage. Debts of the marriage, including unpaid school fees, a debt to "omitted Services," and credit card debts of both parties, were to be paid. The husband was specifically directed to pay certain costs and debts from his share of the settlement funds, including reimbursement for the removal of a caveat, rates arrears, and child support arrears, as well as the wife's legal costs from previous hearings. The wife was to retain a specific motor vehicle, while the husband was to retain another. The parties' superannuation was to be split 50/50, with an order for a superannuation audit of the husband's funds. Each party was to retain other property in their possession, with liabilities encumbering that property to be their sole responsibility. All extant applications were dismissed.
Orders
Orders of the court
1.
The wife be granted sole authority to attend to the urgent sale of the matrimonial home situate at and known as Property E forthwith.
2.
In accordance with order 1 hereof, the wife attend to signing all documentation with the real estate agent of her choice to enable the house to be placed on the market forthwith.
3.
After 45 days from the date of these orders the husband be ordered to vacate the property taking with him all his personal belongings to enable the house to be placed on the market.
4.
The husband be directed to leave all existing chattels and fittings in the home as of this date.
5.
The wife attend to any reasonable maintenance and/or repairs to assist the sale of the property and the costs to be borne by the wife at the time for the said repairs/maintenance be deducted from the settlement moneys due prior to any property settlement determined by this Court.
6.
A copy of these orders be provided to the (omitted) Bank.
7.
The proceeds of the sale of the matrimonial home be held on trust by the wife’s solicitors, and applied as set out in Order 8 below.
8.
That the proceeds of sale of the Property E property be applied as follows:
(a) First, to pay all reasonable, costs, commissions and expenses of the sale;
(b) Secondly, to remove caveats registered on the property to enable the sale to proceed, namely Harwood Andrews caveat number (omitted) lodged 6 December 2011 and Australian Government Solicitor caveat number (omitted) lodged 29 June 2011.
(c) Thirdly, to discharge the registered mortgages to the (omitted) Bank (“the (omitted Bank) mortgage”).
(d) Fourthly, to pay the debts of the marriage:
(i) The debt owed to (omitted) College, in relation to unpaid school fees, the total of which is currently estimated at $18,572.95 (“unpaid school fees”) as at 2 April 2013.
(ii) The debt owed to (omitted) Services currently estimated at $7,089, plus any costs, interests and penalties which have accrued thereon (“(omitted) Services debt”);
(iii) The wife’s (omitted) Bank credit card, in her sole name in the amount of $7,000 as at the date of separation.
(iv) The husband’s (omitted) Bank credit card, in his sole name in the amount of $40,000 as at the date of separation.
(e) Fifthly, the Husband to pay the following debts from his 50% settlement funds as follows:
(i) The amount of $7,669.22 (plus interest) (payout figure to be obtained prior to settlement) to the wife as reimbursement of the husband’s costs incurred by Harwood Andrews for the removal of caveat number (omitted);
(ii) All arrears of rates, which may then be owed to (omitted) City Council, and all and any penalties which have accrued thereon (“rates arrears”);
(iii) The debt owed to Australian Government Solicitor (Child Support) in the amount of approximately $46,000 to remove the caveat number (omitted) in order to allow the property to be sold;
(iv) The wife’s costs of 27 July 2012 at $3,234, and of 19 December 2012 at $1,500 and those reserved on 13 February 2013 at $1,750.
9.
That the husband be liable for the indemnify the wife and keep her indemnified against all and any taxation liabilities of whatsoever kind and nature or howsoever arising, be they past, present or future, as may be assessed against the husband and/or all and any entities controlled by the husband and/or in which the parties, or either of them, held any interest.
10.
That the husband be liable for and indemnify the wife and keep her indemnified against all and any taxation liabilities that may be assessed against the wife, as a result of any audit, review, revision, amendment or re-assessment of the wife’s personal taxation position in the financial years from 1995 to 2012 inclusive.
11.
That the wife retain to the exclusion of the husband the Honda (omitted) motor vehicle which is registered in her name.
12.
That the wife do all acts and things and sign all such documents as may be required to transfer to the husband or at his discretion the Honda (omitted) motor vehicle, presently registered in the wife’s name.
13.
The husband to return the manual and service booklet for the Honda (omitted) motor vehicle as ordered on 27 July 2012 orders.
14.
That the husband retain his Ford (omitted) motor vehicle, which is presently unregistered.
15.
That the parties’ superannuation be split on a 50/50 per cent basis adopting the sums of $25,104 for the wife and $68,000 for the husband.
16.
The Court orders a superannuation audit of the husband Mr Landon to ascertain all superannuation funds in his name.
17.
That unless specified in these Orders and save for the purpose of enforcing these orders;
(a) Each party be solely entitled to the exclusion of the other party all other property (including choses-in-action) in the possession of the party at the date of these orders;
(b) Insurance policies remain the sole property of the owner named herein;
(c) Each party be solely liable for and indemnify the other party against all and any liability encumbering any item of the property to which that party is entitled pursuant to these orders; and
(d) Any joint tenancy in any real or personal estate between the parties be and is hereby expressly severed.
18.
That all extant applications be dismissed.
19.
That the matter be removed from the list of cases awaiting determination.
20.
That there be general liberty to apply to the parties in relation to the implementation 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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