Lawson and Lawson - [2004] FMCAfam 674

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAWSON & LAWSON

[2004] FMCAfam 674

FAMILY LAW – Property – wife claims Kennon adjustment – wife claims waste as a result of gambling and excessive alcohol.

Family Law Act 1975

In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC 92-877
Kennon v Kennon (1997) FLC 92-757
Parshen v Parshen (1996) FLC 92-720
Kowaliw v Kowaliw (1981) FLC 91-092
I & I [2004] FMCAfam 203
C &C [2003] FMCAfam 145
KK & KG [2003] FMCAfam 609

Applicant:

KATHLEEN PATRICIA LAWSON

Respondent:

GEORGE RUSSELL LAWSON

File No:

PAM 3601 of 2003

Delivered on:

25 November 2004

Delivered at:

Parramatta

Hearing Dates:

28 October, 8 & 9 November 2004

Judgment of:

Sexton FM

REPRESENTATION

Counsel for the Applicant:

Mr P. Schroeder

Solicitors for the Applicant:

F.D. Hammond & Associates

Counsel for the Respondent:	Mr D. Roberts
Solicitors for the Respondent:	George West Solicitor

ORDERS

That within 6 calendar months of the date of these orders the husband pay to the wife by way of property settlement the sum of forty five thousand five hundred dollars [$45,500.00] payable as follows:
(a)The sum of $15,000.00 within 1 calendar month;
(b)The sum of a further $15,000.00 within 3 calendar months;
(c)The balance within 6 calendar months.
That within 6 calendar months of the date of these Orders the following occur simultaneously in relation to the former matrimonial home at 9 Dino Close, Rooty Hill in the State of New South Wales [“the home”]:
(a)The husband do all acts and things and execute all documents necessary to transfer to the wife the whole of his right title and interest in the home.
(b)The wife discharge the loan secured by way of mortgage on the home to Wizard Home Loans [the home loan].
and thereafter the wife indemnify and keep indemnified the husband in relation to the mortgage and other outgoings on the home.
In the event the wife fails to discharge the home loan or is unable to discharge the home loan by the due date in accordance with Order (2) herein, the husband and the wife shall forthwith do all things necessary to effect a sale of the home to be sold by private treaty at a price agreed between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale the proceeds to be distributed in the following order and priority:
(a)In payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;
(b)In adjustment of rates and other outgoings in accordance with usual conveyancing practice;
(c)In discharge of the loan secured by way of mortgage to Wizard Home Loans registered on the title of the home;
(d)In payment to the wife of the balance.
In the event the home has not been…

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 Lawson and Lawson

Details

AGLC: Lawson and Lawson [2004] FMCAfam 674
Case: [2004] FMCAfam 674
Decision Date: 25 November 2004

CaseChat Overview and Summary

In the case of Lawson and Lawson, the Family Court of Australia was asked to determine the distribution of property and liabilities between the husband and the wife following their separation. The court was required to decide on the division of the matrimonial home, the payment of financial settlements, and the allocation of debts and assets. The legal issues centred on the interpretation of property settlement principles under the Family Law Act and the specific circumstances of the couple’s financial arrangement.

The court considered the contributions of both parties to the acquisition and maintenance of the matrimonial home, as well as their respective financial circumstances. It determined that the husband should pay the wife a total of $45,500 as part of the property settlement, with specific payment schedules. The court also ordered the transfer of the husband’s interest in the former matrimonial home to the wife, provided that she discharged the existing home loan. If the wife was unable to do so, the court mandated a sale of the property, either by private treaty or public auction, with the proceeds to be allocated according to a set priority.

The court further clarified the responsibilities of each party in relation to the home, including the payment of outgoings and the repayment of the family tax benefit debt. Personal property, such as bank accounts and superannuation entitlements, was to remain with the respective owners, subject to their individual liabilities. The court also addressed the issue of ongoing debts incurred by both parties, ensuring that each remained liable for their own obligations.

The final orders included specific timelines for the property transfer and financial payments, as well as provisions for the sale of the home if necessary. The court appointed the Registrar of the Sydney Registry to enforce compliance with the orders if either party failed to meet their obligations.

Orders

Orders of the court

That within 6 calendar months of the date of these orders the husband pay to the wife by way of property settlement the sum of forty five thousand five hundred dollars [$45,500.00] payable as follows:

(a) The sum of $15,000.00 within 1 calendar month;

(b) The sum of a further $15,000.00 within 3 calendar months;

That within 6 calendar months of the date of these Orders the following occur simultaneously in relation to the former matrimonial home at 9 Dino Close, Rooty Hill in the State of New South Wales [“the home”]:

(a) The husband do all acts and things and execute all documents necessary to transfer to the wife the whole of his right title and interest in the home.

(b) The wife discharge the loan secured by way of mortgage on the home to Wizard Home Loans [the home loan].

and thereafter the wife indemnify and keep indemnified the husband in relation to the mortgage and other outgoings on the home.

In the event the wife fails to discharge the home loan or is unable to discharge the home loan by the due date in accordance with Order (2) herein, the husband and the wife shall forthwith do all things necessary to effect a sale of the home to be sold by private treaty at a price agreed between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.

Upon the completion of the sale the proceeds to be distributed in the following order and priority:

(a) In payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;

(b) In adjustment of rates and other outgoings in accordance with usual conveyancing practice;

(d) In payment to the wife of the balance.

In the event the home has not been sold by or before a date three (3) months from the date Order (3) becomes operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the home upon the following terms:

(a) The auctioneer shall be a real estate agent;

(b) The reserve price shall, unless agreed between the parties, be as proposed by the Auctioneer;

That pending the transfer of the husband’s interest in the home, or the date of sale of the home in accordance with these Orders, the wife shall have the exclusive right to occupation of the home and shall be responsible for the payment of the outgoings on the home, including the mortgage repayments.

That the wife shall be responsible for repayment of the family tax benefit debt to Centrelink and shall indemnify and keep indemnified the husband in relation to that debt.

That other than as herein provided the husband and the wife each be declared the owner at law and in equity of all items of personalty including but not limited to proceeds of bank accounts, superannuation entitlements, money, and personal effects presently in their respective possession and control.

That except as otherwise provided herein, the husband and the wife remain liable for any debts in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto.

10.

That in the event the husband or the wife refuses or neglects to comply with any of the Orders herein, the Registrar of this Court at its Sydney Registry be appointed pursuant to Section 106A of the Act to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.

11.

All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.

12.

The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within 14 days.

13.

All outstanding applications are dismissed.

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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