Leighton and Leighton - [2006] FMCAfam 671

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEIGHTON & LEIGHTON

[2006] FMCAfam 671

FAMILY LAW – Property – 9 year marriage – both parties in late sixties – husband has substantial debt to Centrelink – excluded from small pool – significant initial contribution by wife – credit issues for husband.

Family Law Act 1975

Aleksovski & Aleksovski (1996) FLC 92-705
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere (1985) FLC 91-626
Pierce & Pierce (1999) FLC 92-844
White & Tulloch & White (1995) FLC 92-640
Zaroff & Zaroff [2006] FamCA 920

Applicant:

JEANETTE RUBY LEIGHTON

Respondent:

DESMOND WILLIAM ROBERT LEIGHTON

File Number:

SYM 4955 of 2006

Judgment of:

Sexton FM

Hearing dates:

27 & 28 November 2006

Delivered at:

Sydney

Date of Last Submission:

28 November 2006

Delivered on:

11 December 2006

REPRESENTATION

Solicitors for the Applicant:

Burridge & Legg Solicitors

Counsel for the Respondent:

Mr J Berry

Solicitors for the Respondent:

North & Badgery Solicitors

THE COURT ORDERS THAT:

By no later than midday on 28 February 2007 (‘date of settlement’) the following occur:
(a)The husband remove the contents, excluding fixtures, of the property at 171 Pierce Street, Wellington in the State of New South Wales (the Wellington property) and, subject to Order (2) be entitled to such contents;
(b)The husband remove the livestock, plant and equipment relating to such livestock, the tractor and trailer and subject to Order (2), be entitled to such livestock, plant, equipment, tractor and trailer;
(c)The husband vacate the Wellington property; and
(d)The husband transfer to the wife all his right, title and interest in the Wellington property and simultaneously the wife discharge the joint loan secured by way of mortgage secured on the Wellington property and pay to the husband the sum of $18,854.10 less any deductions calculated in accordance with Order (7) herein.
The wife be entitled to any items of property or livestock referred to in Order (1) (a) and (b) which remain on the Wellington property after midday on 28 February 2007.
In the event the wife fails to pay the sum due to the husband by the due date in accordance with Order (1)(d) or such longer time as agreed between the parties in writing, both parties forthwith sign all documents and do all things necessary to sell the Wellington property by private treaty at a sale price to be agreed between them and in default of agreement within 48 hours, at a sale price to be determined by the President of the Real Estate Institute of New South Wales or his nominee whose decision shall be binding upon the parties.
In the event contracts for the sale of the Wellington property have not been exchanged within 3 months of the date of settlement or such longer period as the parties may agree in writing, then both parties shall sign all documents and do all things necessary to effect a sale of the Wellington property by…

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 Leighton and Leighton

Details

AGLC: Leighton and Leighton [2006] FMCAfam 671
Case: [2006] FMCAfam 671
Decision Date: 11 December 2006

CaseChat Overview and Summary

The case of Leighton and Leighton involved the division of assets following a separation between the husband and wife. The primary dispute was over the equitable distribution of property, including a farm, livestock, and personal belongings, as well as financial obligations and debts. The matter was heard in the Family Court of Australia.

The legal issues that the court needed to decide included the equitable distribution of property, the responsibility for outstanding debts, and the allocation of specific items of personal property. Additionally, the court had to determine the terms under which the parties would sell the Wellington property if certain conditions were not met, and how the proceeds from that sale should be distributed.

In reaching its decision, the court carefully considered the contributions of each party to the acquisition and maintenance of the assets, as well as their respective needs and future prospects. The court ordered the husband to vacate the Wellington property and transfer his interest to the wife, while the wife was to pay the husband a specified amount and discharge a joint loan. The court also detailed the steps to be taken if the wife failed to make the payment on time, including a sale by private treaty or auction. The court further allocated specific items of personal property to each party and outlined the procedure for handling the sale of the Wellington property and the distribution of its proceeds. Finally, the court addressed the responsibility for each party's personal debts and liabilities.

The final orders of the court specified the timeline and conditions for the husband's removal of personal items and livestock from the Wellington property, the sale of the property under certain conditions, and the distribution of the sale proceeds. The court also addressed the responsibility for specific debts and the allocation of other personal property between the parties. The orders provided a detailed framework for the execution of the property settlement and the handling of any defaults.

Orders

Orders of the court

By no later than midday on 28 February 2007 (‘date of settlement’) the following occur:

(a) The husband remove the contents, excluding fixtures, of the property at 171 Pierce Street, Wellington in the State of New South Wales (the Wellington property) and, subject to Order (2) be entitled to such contents;

(b) The husband remove the livestock, plant and equipment relating to such livestock, the tractor and trailer and subject to Order (2), be entitled to such livestock, plant, equipment, tractor and trailer;

(d) The husband transfer to the wife all his right, title and interest in the Wellington property and simultaneously the wife discharge the joint loan secured by way of mortgage secured on the Wellington property and pay to the husband the sum of $18,854.10 less any deductions calculated in accordance with Order (7) herein.

The wife be entitled to any items of property or livestock referred to in Order (1) (a) and (b) which remain on the Wellington property after midday on 28 February 2007.

In the event the wife fails to pay the sum due to the husband by the due date in accordance with Order (1)(d) or such longer time as agreed between the parties in writing, both parties forthwith sign all documents and do all things necessary to sell the Wellington property by private treaty at a sale price to be agreed between them and in default of agreement within 48 hours, at a sale price to be determined by the President of the Real Estate Institute of New South Wales or his nominee whose decision shall be binding upon the parties.

In the event contracts for the sale of the Wellington property have not been exchanged within 3 months of the date of settlement or such longer period as the parties may agree in writing, then both parties shall sign all documents and do all things necessary to effect a sale of the Wellington property by public auction at a reserve price to be determined in the same manner as the sale price for the sale of the property by private treaty.

In the event the Wellington property is passed in at auction then both parties shall sign all documents and do all things necessary to effect a sale by private treaty at a sale price which is 10% less than the reserve price at the auction referred to in Order (4).

Upon completion of the sale of the Wellington property, the parties shall cause the proceeds of sale to be distributed in the following order and priority:

(a) In payment of agent’s commission, auction fees and expenses and legal costs relating to the sale;

(b) In payment of adjustments in accordance with usual conveyancing practice;

(d) In payment of $8,580.00 to the wife;

(e) In payment of 30% of the balance then remaining to the husband in addition to interest from the date of the wife’s default calculated in accordance with the Family Law Rules; and

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

Pending the date of settlement or the date of settlement of sale of the property:

(a) The husband be exclusively entitled to occupy the Wellington property;

(b) The husband pay all mortgage instalments as and when they fall due; and

but in the event the husband fails to meet the payments in accordance with Order (7) (b) or (c), or there exist arrears in relation to the mortgage or other outgoings on the Wellington property, such payments and arrears be deducted from the sum payable to the husband by the wife in accordance with Order (1) (d) at the date of settlement or in accordance with Order (6) (e) of these Orders.

The wife forthwith transfer to the husband the whole of her right, title and interest in the blue Ford Station Wagon.

The husband be responsible for repayment of the debt to Mr Cullen.

10.

The husband be entitled to monies owed to the parties from the sale of the horse float.

11.

The husband be entitled to the red Ford Falcon motor vehicle and the wife be entitled to the Nissan Patrol motor vehicle.

12.

The parties do all things and sign all documents necessary to give effect to these Orders.

13.

Unless otherwise specified in these Orders:

(a) Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the party named as the life insured, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and

(b) Each party remain liable for debts in that party’s name and indemnify and keep indemnified the other party in relation to those debts.

14.

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.

15.

Each party have liberty to apply at 14 days notice in relation to the implementation of these orders.

16.

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

17.

All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

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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