FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUIR & MUIR | [2015] FCCA 2104 |
| Catchwords: FAMILY LAW – Property – final hearing proceeds undefended when husband fails to appear on second day – intervention by husband’s former lawyers – financial disclosure – two pools approach. |
| Legislation: Family Law Act 1975, ss.75, 79, 80, 81, 117 Federal Circuit Court Rules 2001, rr.21.02, 21.04 |
| Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545 In the Marriage of Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844 In the marriage of Robb [1994] FamCA 36 |
| Applicant: | MS MUIR |
| Respondent: | MR MUIR |
| Intervenor | THE TRUSTEE FOR SANTONE FAMILY TRUST TRADING AS SANTONE LAWYERS PTY LIMITED |
| File Number: | SYC 3903 of 2013 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 20 and 21 April 2015 |
| Date of Last Submission: | 21 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper |
| Solicitors for the Applicant: | F C Bryant Thomas & Co |
| The Respondent appeared in person |
ORDERS
Upon noting that paragraphs 4 and 5 of the orders made on 21 April 2015 provide for the sale of the property known as Property B (“the former matrimonial home”), then upon settlement of the sale of the former matrimonial home, the Wife cause the net proceeds (being the sale proceeds after payment of the outstanding mortgage, the (omitted) Bank personal loan and sale expenses) to be divided as follows:
(a)To the Husband in such manner as he directs in writing:
(i)35%, less the amount due to the Intervenor, Santone Lawyers payable pursuant to the orders made on 20 April 2015; and
(ii)$29,379.24; and
(b)The balance to the Wife.
In the event that the Husband fails to provide a direction for payment as required by paragraph (1)(a) herein then all moneys payable to him from the net proceeds be held on trust for him.
Unless otherwise specified in these Orders:
(a)each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings…
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- Muir and Muir [2015] FCCA 2104
- Case
- [2015] FCCA 2104
- Decision Date
CaseChat Overview and Summary
The court was required to determine the distribution of the net proceeds from the sale of the former matrimonial home, known as Property B. Specifically, the orders stipulated how the net proceeds were to be divided between the Husband and the Wife, taking into account an amount due to an intervenor, Santone Lawyers, and a specific sum payable to the Husband. The court also addressed the entitlement to various assets, including chattels, money, shares, debentures, and superannuation benefits, as well as the liability for debts and loans.
The court ordered that upon settlement of the sale of Property B, the Wife was to divide the net proceeds. The Husband was to receive 35% of the net proceeds, less the amount due to Santone Lawyers and a further sum of $29,379.24, with the remainder to be paid to the Wife. In the event the Husband failed to provide a written direction for payment, the moneys payable to him were to be held on trust. Furthermore, each party was to be solely entitled to property in their possession or name as at the date of the orders, including superannuation benefits, and each party was to be solely liable for and indemnify the other against any debts or liabilities in their name. The court also made provisions for the execution of documents to give effect to the orders, including the appointment of the Registrar of the Court under section 106A of the Family Law Act 1975 if necessary. The Wife was granted liberty to apply within 28 days regarding costs, and all other extant applications were dismissed.
Orders
Orders of the court
1.
Upon noting that paragraphs 4 and 5 of the orders made on 21 April 2015 provide for the sale of the property known as Property B (“the former matrimonial home”), then upon settlement of the sale of the former matrimonial home, the Wife cause the net proceeds (being the sale proceeds after payment of the outstanding mortgage, the (omitted) Bank personal loan and sale expenses) to be divided as follows:
(a)To the Husband in such manner as he directs in writing:
(i) 35%, less the amount due to the Intervenor, Santone Lawyers payable pursuant to the orders made on 20 April 2015; and
(ii) $29,379.24; and
(b) The balance to the Wife.
2.
In the event that the Husband fails to provide a direction for payment as required by paragraph (1)(a) herein then all moneys payable to him from the net proceeds be held on trust for him.
3.
Unless otherwise specified in these Orders:
(a) each party be solely entitled to all chattels, goods, motor vehicles, furniture, furnishings and any other property in the possession of such party as at this date;
(b) each party be solely entitled to any moneys, shares and debentures which stand in such party’s name as at this date;
(c) each party be solely entitled to any superannuation benefits held in such party’s name and each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other; and
(d) each party be solely liable for and indemnify the other against any debt, loan or liability whatsoever held in such party’s name as at this date.
4.
Each party do all such things including the signing of all documents to give effect to these Orders.
5.
In the event that either party refuses or neglects to execute any deed or instrument that may be required to give effect to these Orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party or parties and do all acts necessary to give validity to the operation to the deed or instrument.
6.
The Wife have liberty to apply within 28 days of the date of these orders in relation to the issue of costs.
7.
The Wife forthwith cause her solicitors to serve a copy of these Orders on the Husband to his last known email address.
8.
Subject to paragraph 6 herein, all extant applications are hereby dismissed.
AND THE COURT NOTES THAT:
(A) These Orders were made following a final hearing conducted on an undefended basis on 20 and 21 April 2015.
(B) These orders should be read in conjunction with the orders made by consent between the Applicant, Respondent and Intervenor on 20 April 2015 and the orders made by the Court on 21 April 2015.
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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