Lockie and Lockie - [2009] FamCA 656

FAMILY COURT OF AUSTRALIA

LOCKIE & LOCKIE

[2009] FamCA 656

FAMILY LAW – PROPERTY – Section 75(2) – Initial contributions of the parties – Assets allegedly held on trust for the child of the marriage – Wife’s contribution to the earning capacity of the husband – Payments made by husband to his former wife and child – Future costs of care of the child – Whether husband’s de facto constitutes a financial resource

Family Law Act 1975 (Cth)

APPLICANT:

Mr Lockie

RESPONDENT:

Ms Lockie

FILE NUMBER:

SYF

2311

2004

DATE DELIVERED:

28 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

10 to 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC with Mr Gramelis

SOLICITOR FOR THE APPLICANT:

John M Barbouttis

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

Pearson Family Lawyers

Orders

The parties are to forthwith do all things necessary to transfer to the husband the Credit Agricole Luxembourg bank account (standing at $236,489 on the balance sheet) being the account in the name of the parties’ child and being held in Fixed Yield Deposit Account number … in Credit Agricole Luxembourg.
Within two calendar months from the date hereof the wife is to pay the husband the sum of $480,607.
In the event of the wife failing to make the payment to the husband as required by Order 2 hereof then forthwith upon the occurrence of such failure the parties are to jointly sell the property at E Road, northern Sydney (“the [E] Road property”) through an agreed real estate agent and at an agreed sale price. The parties are to jointly appoint a solicitor or conveyancing firm to act for them on the sale. The parties are to ensure that the solicitor or conveyancer acting on the sale is provided with a copy of these orders. Each party has liberty to apply for further orders implementing the order for sale.
Upon a sale being effected of the E Road property the parties are to cause the sale proceeds to be paid as follows:
(i)Payment of sale expenses;
(ii)discharge of the mortgage;
(iii)payment to the husband of 83.5% of the balance then remaining;
(iv)The balance thereafter to the husband.
Each party has liberty to apply to seek further orders necessary to implement these orders.
The wife is to cause to be delivered to the husband at H Street, northern Sydney (“the [H] Street property”) all his furniture and personal items which were acquired by the husband prior to the cohabitation. Thereafter the balance of the contents of the property is to be the wife’s.
Each party otherwise be declared the absolute owner of any asset, resource, and superannuation in their possession and control standing in that party’s name.

IT IS NOTED that publication of this judgment under the pseudonym Lockie & Lockie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF…

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.

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Details

Case: [2009] FamCA 656
Decision Date: 28 July 2009

CaseChat Overview and Summary

In *Lockie and Lockie*, Le Poer Trench J of the Family Court of Australia was required to make orders concerning the division of property between the parties. The dispute involved the distribution of various assets, including a Luxembourg bank account, a sum of money to be paid by the wife to the husband, a property located at E Road, northern Sydney, furniture and personal items, and other assets and superannuation held by each party.

The court was tasked with determining how to equitably divide the matrimonial assets and liabilities. This involved considering the appropriate treatment of a joint bank account held in the name of the parties' child, the quantum and method of payment of a significant sum from the wife to the husband, and the disposition of the E Road property in the event of non-payment. Furthermore, the court needed to address the division of household contents and the ownership of individual assets and superannuation.

Le Poer Trench J ordered that the Credit Agricole Luxembourg bank account be transferred to the husband. The wife was also ordered to pay the husband a specific sum of money within two months. In the event of the wife's failure to make this payment, the E Road property was to be jointly sold, with the proceeds to be applied first to sale expenses and mortgage discharge, then 83.5% of the remaining balance to the husband, and the final balance also to the husband. The husband was to receive his pre-cohabitation furniture and personal items, with the remaining contents of the property to become the wife's. Finally, each party was declared the absolute owner of all other assets, resources, and superannuation in their possession and control.

Orders

Orders of the court

The parties are to forthwith do all things necessary to transfer to the husband the Credit Agricole Luxembourg bank account (standing at $236,489 on the balance sheet) being the account in the name of the parties’ child and being held in Fixed Yield Deposit Account number … in Credit Agricole Luxembourg.

Within two calendar months from the date hereof the wife is to pay the husband the sum of $480,607.

In the event of the wife failing to make the payment to the husband as required by Order 2 hereof then forthwith upon the occurrence of such failure the parties are to jointly sell the property at E Road, northern Sydney (“the [E] Road property”) through an agreed real estate agent and at an agreed sale price. The parties are to jointly appoint a solicitor or conveyancing firm to act for them on the sale. The parties are to ensure that the solicitor or conveyancer acting on the sale is provided with a copy of these orders. Each party has liberty to apply for further orders implementing the order for sale.

Upon a sale being effected of the E Road property the parties are to cause the sale proceeds to be paid as follows:

(i) Payment of sale expenses;

(ii) discharge of the mortgage;

(iii) payment to the husband of 83.5% of the balance then remaining;

(iv) The balance thereafter to the husband.

Each party has liberty to apply to seek further orders necessary to implement these orders.

The wife is to cause to be delivered to the husband at H Street, northern Sydney (“the [H] Street property”) all his furniture and personal items which were acquired by the husband prior to the cohabitation. Thereafter the balance of the contents of the property is to be the wife’s.

Each party otherwise be declared the absolute owner of any asset, resource, and superannuation in their possession and control standing in that party’s name.

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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