LINTON & LINTON - [2015] FCCA 806

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINTON & LINTON

[2015] FCCA 806

Catchwords:
FAMILY LAW – Undefended property hearing – husband filed no documents and provided no disclosure –family violence – husband’s conduct during hearing.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 75(2)(o), 79(1), 79(2), 79(4), 75(2), 4(1), 117(i), 117 (2A)

Federal Circuit Court Rules 2001 r. 13.03A(2), 13.03B(2)

Aon Risk Services Australia Limited v Australian National University
[2009] HCA 27
Sheill and McMurr (No. 2) [2014] FamCAFC 134 Full Court 39
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Stanford & Stanford [2012] HCA 52
Bevan & Bevan [2013] FamCAFC 116

Kennon and Kennon (1997) FLC 92 – 757
Kollmorgan & Kollmorgan (1984) FLC 91-551

Applicant:

MS LINTON

Respondent:

MR LINTON

File Number:

MLC 2694 of 2014

Judgment of:

Judge Harland

Hearing dates:

4 & 5 March 2015

Date of Last Submission:

5 March 2015

Delivered at:

Melbourne

Delivered on:

10 April 2015

REPRESENTATION

Counsel for the Applicant:

Ms Swann

Solicitors for the Applicant:

Rigoli Lawyers

The Respondent appearing in person with the assistance of an interpreter

ORDERS

That all previous orders be discharged.
With 7 days of the date of these orders the parties shall do all acts and things to place the property on the market for sale, with a real estate agent nominated by the wife at a price as recommended by the agent taking in account the valuation of $725,000.
The wife shall instruct her solicitors to act on the sale of this property.
The wife accept any offer made to purchase the property in the sum of $725,000 or above.
That the wife shall disburse the proceeds from the sale of the property as follows:
(a)firstly, to pay all costs, commissions and expenses of said sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the property;
(c)thirdly, to pay the debt owed to Victoria Legal Aid;
(d)fourthly, to pay the debt the wife owes to Centrelink;
(e)fifthly, in payment of the encumbrance over the Toyota (omitted);
(f)sixthly, 70% of the balance then remaining to the wife; and
(g)the balance to the husband, subject to Order 6 herein.
That the following amounts be deducted from the husband’s entitlement to the sale proceeds of the property pursuant to Order 5(g) and added to the wife’s entitlement thereto pursuant to Order 5(f):
(a)an amount equal to 70% of any mortgage arrears accrued up until the date upon which the husband vacates the property.
That the husband vacate the property within 7 days and take with him items of property limited to his personal possessions (subject to

Order 11).
That pending the completion of the sale of the property:
(a)the wife have the sole right to occupy the property;
(b)during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the property as they fall due;
(c)the parties hold their respective interests in the property upon trust pursuant to these Orders;…

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 LINTON & LINTON

Details

AGLC: LINTON & LINTON [2015] FCCA 806
Case: [2015] FCCA 806
Decision Date: 10 April 2015

CaseChat Overview and Summary

This matter concerned orders made by Judge Harland in the Federal Circuit Court of Australia concerning the division of property between the parties, Mr. Linton and Mrs. Linton. The dispute centred on the sale of the parties' property, the disbursement of sale proceeds, and the division of other assets and liabilities.

The court was required to determine the terms of the sale of the parties' property, including the listing price and the acceptance of offers. It also needed to establish the priority of payments from the sale proceeds, including the discharge of encumbrances, debts to third parties such as Victoria Legal Aid and Centrelink, and the distribution of the remaining balance between the parties. Further issues included the sole occupation of the property by the wife pending sale, the husband's obligation to vacate, and the division of furniture and effects.

Judge Harland ordered that the property be placed on the market for sale within seven days at a price recommended by an agent nominated by the wife, taking into account a valuation of $725,000. The wife was to accept any offer of $725,000 or above. The proceeds were to be disbursed in a specific order: sale costs, mortgage and encumbrances, debts to Victoria Legal Aid and Centrelink, an encumbrance on a vehicle, with 70% of the remaining balance to the wife and the balance to the husband, subject to adjustments for mortgage arrears. The husband was ordered to vacate the property within seven days, with provisions for the issuance of a Warrant for Possession if he failed to do so. The wife was granted sole occupation pending sale, responsible for mortgage instalments and outgoings. The court also made orders for the division of furniture and effects, including a detailed process if the parties could not agree. Each party was to be solely entitled to property in their possession, with joint tenancies severed and mutual releases of claims to superannuation. The husband was ordered to pay the wife's costs.

Orders

Orders of the court

That all previous orders be discharged.

With 7 days of the date of these orders the parties shall do all acts and things to place the property on the market for sale, with a real estate agent nominated by the wife at a price as recommended by the agent taking in account the valuation of $725,000.

The wife shall instruct her solicitors to act on the sale of this property.

The wife accept any offer made to purchase the property in the sum of $725,000 or above.

That the wife shall disburse the proceeds from the sale of the property as follows:

(a) firstly, to pay all costs, commissions and expenses of said sale;

(b) secondly, to discharge the mortgage and any other encumbrance affecting the property;

(d) fourthly, to pay the debt the wife owes to Centrelink;

(e) fifthly, in payment of the encumbrance over the Toyota (omitted);

(f) sixthly, 70% of the balance then remaining to the wife; and

(g) the balance to the husband, subject to Order 6 herein.

That the following amounts be deducted from the husband’s entitlement to the sale proceeds of the property pursuant to Order 5(g) and added to the wife’s entitlement thereto pursuant to Order 5(f):

(a) an amount equal to 70% of any mortgage arrears accrued up until the date upon which the husband vacates the property.

That the husband vacate the property within 7 days and take with him items of property limited to his personal possessions (subject to

Order 11).

That pending the completion of the sale of the property:

(a) the wife have the sole right to occupy the property;

(b) during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the property as they fall due;

(d) neither party encumber the property without the consent in writing of the other party.

That in the event that the husband fails to vacate the property within

7 days from the date of this Order, a Warrant for Possession be issued pursuant to Rule 25B.62 of the Federal Circuit Court Rules 2001 and an affidavit by the wife filed in the Melbourne Registry of this Honourable Court shall be sufficient evidence of the husband’s failure to vacate the property.

10.

That within 14 days of taking possession of the property, the wife make available for collection by the husband or his agent in the presence of a police officer on a day and at a time to be notified to the husband in writing by the wife’s solicitors a share of the furniture and effects in the property, being approximately a one half share.

11.

That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:

(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in Australia in the possession of such party as at this date and the furniture and contents in the property are deemed to be in the possession of the wife;

(b) each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

12.

That the husband pays the wife’s costs reserved on 13 May 2014 fixed in the sum of $1,100 and the costs of the trial fixed in the sum of $5,000 plus $500 in costs ordered against the husband on 6 June 2014 and the Court notes that such sums will be deducted from the husband’s share of the sale proceeds.

13.

That the furniture, furnishings and effects presently situated in the property shall be divided by agreement between the parties and each party shall do all things necessary to facilitate that division within 21 days of the date of these orders.

14.

That in the event the parties have not complied with the above order within 28 days from the date of these orders, then

(a) Within a further 7 days the wife shall prepare and deliver to the husband 2 lists comprising furniture, furnishings and effects situated in the property, each list to comprise in total approximately 50% of the value of those furniture, furnishings and effects.

(b) That husband shall then, within a further 7 days of delivery of the two lists select one of those lists and inform the other party of that decision.

(c) Within a further 7 days each party shall then do all things necessary to facilitate the physical distribution and division of the furniture, furnishings and effects to be distributed between the parties in accordance with the selection of the list referred to above;

AND each party shall thereafter be solely entitled to the items of furniture, furnishings and effects so received by them in accordance with the above order.

15.

That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

16.

That pursuant to Rule 21.16 of the Federal Circuit Court Rules 2001 this matter reasonably required the appearance by Counsel.

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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