MADDOX & MERZ - [2014] FCCA 2158

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADDOX & MERZ [2014] FCCA 2158

Catchwords:
FAMILY LAW – Application for alteration of property interests – elderly parties – short marriage – establishing the property pool – assessment of contributions – whether contribution rendered more arduous due to family violence – assessment of future needs – just and equitable order.

Legislation:

Family Law Act 1975, ss.75(2), 79

Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Kennon & Kennon [1997] FamCA 905
Minterly & Minterly [2013] FamCA 418 (4 June 2013)

S & S [2003] FamCA 905

Stanford & Stanford [2012] HCA 52

Applicant: MS MADDOX

Respondent: MR MERZ

File Number: WOC 376 of 2013

Judgment of: Judge Altobelli

Hearing dates: 21-22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Wollongong

Delivered on: 23 September 2014
REPRESENTATION

Counsel for the Applicant: Ms Reynolds

Solicitors for the Applicant: Dribbus Kovacevic Lawyers

Respondent: Self-represented
ORDERS
(1)That the Husband pay to Messrs Dribbus Kovacevic Lawyers for and on behalf of the Wife;
(a)The sum of $30,000 within 7 days of the date of these Orders; and
(b)A further sum of $39,382.60 within 60 days of the date of these Orders.

(2)In the event that the sums are not paid in full by the due dates in Order 1;
(a)The amount of $69,382.60 is then due and payable along with interest payable in accordance with the Family Law Act 1975 and Federal Circuit Court Rules on the balance outstanding from time to time; and
(b)The property known as and situated at Property M, being the whole of the land more particularly described as folio identifier number (omitted) (hereafter “the home”) be sold and the following provisions apply;
(i)List for sale by private treaty for a period of three (3) months;
(ii)Agent as agreed but in default as nominated by the President of The Real Estate Institute of NSW;
(iii)Listing and sale price as agreed between the parties but in default as recommended by the Agent;
(iv)If not sold by treaty within three (3) months then the home be sold by auction to take place within a further two (2) months and re-auctioned until sold each three (3) months;
(v)Reserve price at auction to as recommended by the auctioneer for the first auction 10% (ten percent) less at each successive auction;
(vi)Sale proceeds to be paid to pay;
A.Real estate and legal costs of sale;
B.Rate adjustments;
C.To Messrs Dribbus Kovacevic Lawyers for and on behalf of the Wife the amount plus interest required in these Orders;
D.Balance to the Husband.
(vii)Husband to do such acts and sign such documents so as to co-operate in every way with the sale of the home.
(viii)Husband to keep the home neat, tidy and presentable and allow inspection by prospective purchasers.

(3)That pending the sale of the home in accordance with Order 2(b) and from the date of the Orders, the Husband be responsible for all outgoings…

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 MADDOX & MERZ

Details

AGLC: Maddox and Merz [2014] FCCA 2158
Case: [2014] FCCA 2158
Decision Date: 23 September 2014

CaseChat Overview and Summary

This matter concerned orders made by Judge Altobelli in the Federal Circuit Court of Australia, relating to financial matters between a husband and wife. The dispute involved the division of property and the payment of legal costs.

The court was required to determine the terms of the property settlement, including the payment of specific sums of money by the husband to the wife, and the process for the sale of a property known as "the home". Further issues included the allocation of responsibility for the home's outgoings pending its sale, and the final division of all other property between the parties. The court also needed to address the consequences of non-payment and the mechanism for executing necessary documents.

Judge Altobelli ordered the husband to pay a total of $69,382.60 to the wife's solicitors within specified timeframes. In the event of non-payment, the full amount would become due with interest, and the home was to be sold. The sale was to proceed by private treaty for three months, with provisions for agent selection and listing price. If not sold, it was to be auctioned, with further auctions to occur every three months until sold. The proceeds of sale were to be applied first to sale costs, then rate adjustments, then the wife's legal costs, and finally the balance to the husband. The husband was also ordered to be responsible for all outgoings related to the home until its sale and to cooperate fully in the sale process. All other property was to be divided according to its possession, with each party solely liable for any liabilities associated with their allocated property. The Registrar of the Federal Circuit Court was empowered to sign documents on behalf of a party who failed to do so within seven days of a written request.

Orders

Orders of the court

(1) That the Husband pay to Messrs Dribbus Kovacevic Lawyers for and on behalf of the Wife;

(a) The sum of $30,000 within 7 days of the date of these Orders; and

(b) A further sum of $39,382.60 within 60 days of the date of these Orders.

(2) In the event that the sums are not paid in full by the due dates in Order 1;

(a) The amount of $69,382.60 is then due and payable along with interest payable in accordance with the Family Law Act 1975 and Federal Circuit Court Rules on the balance outstanding from time to time; and

(b) The property known as and situated at Property M, being the whole of the land more particularly described as folio identifier number (omitted) (hereafter “the home”) be sold and the following provisions apply;

(i) List for sale by private treaty for a period of three (3) months;

(ii) Agent as agreed but in default as nominated by the President of The Real Estate Institute of NSW;

(iii) Listing and sale price as agreed between the parties but in default as recommended by the Agent;

(iv) If not sold by treaty within three (3) months then the home be sold by auction to take place within a further two (2) months and re-auctioned until sold each three (3) months;

(v) Reserve price at auction to as recommended by the auctioneer for the first auction 10% (ten percent) less at each successive auction;

(vi) Sale proceeds to be paid to pay;

A. Real estate and legal costs of sale;

B. Rate adjustments;

C. To Messrs Dribbus Kovacevic Lawyers for and on behalf of the Wife the amount plus interest required in these Orders;

D. Balance to the Husband.

(vii) Husband to do such acts and sign such documents so as to co-operate in every way with the sale of the home.

(viii) Husband to keep the home neat, tidy and presentable and allow inspection by prospective purchasers.

(3) That pending the sale of the home in accordance with Order 2(b) and from the date of the Orders, the Husband be responsible for all outgoings relevant to the home including but not limited to the payment of water and council rates, water usage, land tax, other taxes (if applicable) and insurance payments.

(4) Except as provided above, the parties are entitled to be the sole legal and beneficial owners, to the exclusion of the other, of all other items of property both real and personal of whatsoever nature and kind in the possession of such party as at the date of these Orders, for this purpose;

(a) The clothing, jewellery, furniture and special effects in the possession of each of the parties are deemed to be owned by the party in possession;

(b) Bank accounts are deemed to be in the possession of the person whose name appears on the Banks’s record thereof;

(d) Motor vehicles are deemed to be in the possession of the person whose name appears as the registered owner;

(e) 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.

(5) In the event that either of the parties fails or neglects to sign with seven (7) days for a written request to do so any document necessary to effect these Orders the Registrar of the Federal Circuit Court is empowered to sign on behalf of such party.

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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