Mortimer and Mortimer - [2012] FamCA 974

FAMILY COURT OF AUSTRALIA

MORTIMER & MORTIMER

[2012] FamCA 974

FAMILY LAW – PROPERTY SETTLEMENT – Institution of proceedings – Application by the wife for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute property settlement proceedings against the husband “out of time” – Leave not granted – Where leave is not required under s 78 Family Law Act 1975 (Cth) – Where in the alternative the wife and husband together seek declaratory relief under s 78 Family Law Act 1975 to the effect that family home of which they are registered as joint proprietors is beneficially held as to 50 per cent by the wife and 50 per cent by the husband.

Family Law Act 1975 (Cth) ss 44(3), 75, 78, 79(4)

In the Marriage of Althaus (1982) FLC 91-233; 8 Fam LR 169
In the Marriage of Coghlan (2004) 33 Fam LR 414
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Omacini (2005) 33 Fam LR
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Mackenzie (1978) FLC 90-496
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Whitford (1979) FLC 90-612; 4 Fam LR 754
In the Marriage of Zyk (1995) 19 Fam LR 797
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Robb (1995) FLC 92-555
In the Marriage of Pierce (1999) FLC 92-844; (1998) 24 Fam LR 377

APPLICANT:

Ms Mortimer

RESPONDENT:

Mr Mortimer

FILE NUMBER:

PAC

1003

2011

DATE DELIVERED:

23 November 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Loughnan J

HEARING DATES:

1 & 2 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hassans Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Heazlewood

SOLICITOR FOR THE RESPONDENT:

Longman Hill Solicitors

Orders

The wife’s application for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings under s 79 of that Act is refused.
The Court declared pursuant to s 78 of the Family Law Act 1975 (Cth) that the parties own the property at B Street, C Town (being the whole of the land comprised in Folio Identifier …) as joint tenants.
The parties are to forthwith do all acts and things to cause the said property to be sold and upon a sale the net proceeds thereof to be paid as to 50 per cent to the wife and 50 per cent to the husband.
Unless the parties otherwise agree in writing, the agent’s commission in relation to a sale of the property, solicitors cost on sale and all other costs associated with such sale be paid by the parties out of the proceeds of sale, prior to any distribution to either of them pursuant to order 3.
On and from the date hereof the wife shall indemnify the…

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

AGLC: Mortimer and Mortimer [2012] FamCA 974
Case: [2012] FamCA 974
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by Ms Mortimer (the wife) for leave to institute property settlement proceedings against Mr Mortimer (the husband) out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth). The wife and husband were married in 1993 and separated in 1994. The husband opposed the wife's application. In the alternative, the parties jointly sought declaratory relief under section 78 of the Act concerning their beneficial interests in their jointly owned family home.

The primary legal issue before the court was whether to grant the wife leave to commence property settlement proceedings under section 79 of the *Family Law Act 1975* after the statutory time limit had expired. A secondary issue, to be determined if leave was refused, was the nature of the parties' beneficial interests in their jointly held property, and the consequential orders to be made regarding its sale and distribution of proceeds.

The court refused the wife's application for leave under section 44(3). However, the parties jointly sought and were granted declaratory relief under section 78 of the *Family Law Act 1975*. The court declared that the parties held the family home as joint tenants. Consequently, the court ordered that the property be sold, and the net proceeds be divided equally between the wife and husband, with each party to bear their share of sale costs. The wife was ordered to indemnify the husband against any mortgage instalments due to Westpac Bank and any liabilities for rates and taxes on the property. Each party was to retain other property and bank accounts in their sole name. Leave was granted for the parties to restore the proceedings within 28 days to address specific terms of the sale, such as the selling agent and solicitor.

Orders