FAMILY COURT OF AUSTRALIA
| NARKIS & NARKIS (NO 6) | [2017] FamCA 226 |
| FAMILY LAW – PROPERTY – where application proceeded on undefended basis – where the husband’s evidence was vague and incomplete – where husband was given opportunity to reopen the evidence to clarify issues but declined to do so – where the evidence supports some orders for alteration of property interests |
| Family Law Act 1975 (Cth) s75, 79, 102Q, 102QB, 117 Family Law Rules 2004 (Cth) Chapter 1, Chapter 13 Evidence Act (Cth) 1995 s 55, 56, 59, 65, 109, 190, |
| Weir and Weir (1993) FLC 92-338 |
| APPLICANT: | Mr Narkis |
| RESPONDENT: | Ms Narkis |
| FILE NUMBER: | MLC | 210 | of | 2014 |
| DATE DELIVERED: | 13 April 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 20, 27 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dixon SC/ Ms Cantwell |
| SOLICITOR FOR THE APPLICANT: | Cantwell Family Lawyers |
| THE RESPONDENT: | No Appearance/ In Person |
Orders
By 30 June 2017:
(a)the wife pay to the husband $56,000; and
(b)provide to the husband a discharge of the mortgage encumbering the real property at O Street, Suburb P (“O Street”) (or evidence of it being refinanced in the name of the wife alone),
and thereupon, the husband transfer to the wife all of his interest in O Street.
If by 30 June 2017, the wife has failed to comply with paragraph 1 (a) and (b) hereof, the husband have the sole right of occupation of O Street thereafter and upon taking possession and preparing it for sale in accordance with the recommendations of the selling agent, immediately thereafter place it on the market for sale on the following terms:
(a)The husband shall appoint the selling agent, determine the agent’s commission and the reserve price for the sale;
(b)The husband shall appoint the conveyancers in respect of the sale;
(c)An auction date be appointed as soon as practicable.
That the wife be apprised of the matters in paragraph 2 hereof by the solicitors for the husband.
That upon the settlement of the sale of O Street, the proceeds be applied:
(a)First, to pay the conveyancing costs, agents commission and advertising expenses of the sale;
(b)Secondly, to discharge to mortgage encumbering O Street;
(c)Thirdly, to divide the balance thereafter in such proportions as will give effect to the reasons for judgment this day.
That by 30 June 2017, the wife make available for collection by the husband or his appointed agents, all of his personal chattels in the possession or control of the wife including watches and tool kit.
That the husband forthwith place the real property at M Street, Suburb N (“the Suburb N properties”) on the market for sale on the following terms:
(a)The husband shall appoint the selling agent, determine the agent’s commission and…
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- Case
- [2017] FamCA 226
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of sale for the properties at O Street and Suburb N, including the allocation of sale proceeds, the payment of associated costs, and the discharge of mortgages. Further issues included the transfer of interests in the O Street property, the disposition of personal chattels, and the wife's obligation to remove her belongings from a property at Q Street. The court also addressed the wife's potential failure to comply with certain orders and the implications for the sale of O Street. Finally, the court considered the payment of costs, including the husband's costs and the costs of the Independent Children's Lawyer.
Cronin J ordered that the wife pay a sum of $56,000 to the husband and provide a discharge of the mortgage over the O Street property by 30 June 2017, whereupon the husband would transfer his interest in that property to the wife. If the wife failed to comply, the husband would have sole occupation of O Street and would be responsible for its sale, with terms dictating his control over the selling agent, commission, and reserve price. The proceeds from the sale of O Street were to be applied first to sale costs, then to discharge the mortgage, and the balance divided according to the court's reasons. The husband was ordered to place the Suburb N properties on the market forthwith, with similar terms regarding the sale process and application of proceeds, including the payment of capital gains and land tax. The wife was also ordered to make available the husband's personal chattels and to remove her belongings from the Q Street property by a specified date. The court also made orders for the wife to pay the husband's costs and the Independent Children's Lawyer's costs.
Orders
Orders of the court
1.
By 30 June 2017:
(a) the wife pay to the husband $56,000; and
(b) provide to the husband a discharge of the mortgage encumbering the real property at O Street, Suburb P (“O Street”) (or evidence of it being refinanced in the name of the wife alone),
and thereupon, the husband transfer to the wife all of his interest in O Street.
2.
If by 30 June 2017, the wife has failed to comply with paragraph 1 (a) and (b) hereof, the husband have the sole right of occupation of O Street thereafter and upon taking possession and preparing it for sale in accordance with the recommendations of the selling agent, immediately thereafter place it on the market for sale on the following terms:
(a) The husband shall appoint the selling agent, determine the agent’s commission and the reserve price for the sale;
(b) The husband shall appoint the conveyancers in respect of the sale;
(c) An auction date be appointed as soon as practicable.
3.
That the wife be apprised of the matters in paragraph 2 hereof by the solicitors for the husband.
4.
That upon the settlement of the sale of O Street, the proceeds be applied:
(a) First, to pay the conveyancing costs, agents commission and advertising expenses of the sale;
(b) Secondly, to discharge to mortgage encumbering O Street;
(c) Thirdly, to divide the balance thereafter in such proportions as will give effect to the reasons for judgment this day.
5.
That by 30 June 2017, the wife make available for collection by the husband or his appointed agents, all of his personal chattels in the possession or control of the wife including watches and tool kit.
6.
That the husband forthwith place the real property at M Street, Suburb N (“the Suburb N properties”) on the market for sale on the following terms:
(a) The husband shall appoint the selling agent, determine the agent’s commission and the reserve price for the sale;
(b) The husband shall appoint the conveyancers in respect of the sale;
(c) An auction date be appointed as soon as practicable.
7.
That upon the settlement of the sale of the Suburb N properties, the proceeds be applied:
(a) First, to pay the conveyancing costs, agents commission and advertising expenses of the sale;
(b) Secondly, to discharge the mortgage encumbering the Suburb N properties;
(c) Thirdly, to pay any capital gains tax and land tax outstanding in respect of O Street or the Suburb N properties;
(d) Fourthly, to divide the balance thereafter in such proportions as will give effect to the reasons for judgment this day.
8.
That forthwith, the wife withdraw any caveat lodged by her or on her behalf over O Street or the Suburb N properties.
9.
That if by 4 pm on 30 June 2017, the wife has failed to remove any items stored by her at Q Street, Suburb R, the remaining property shall be deemed to be that of the husband for the purpose of its disposal as he sees fit but any money arising from such disposal shall not be deemed to be part of the calculations arising from the reasons for judgment this day.
10.
That, on short notice to the wife, the husband has leave to seek an order under s 106A of the Family Law Act 1975 from a Judge of this Court, that a registrar or other person sign such documents as may be necessary in the name of the wife to give effect to these orders.
11.
That upon the sale of the later of O Street and the Suburb N properties, the necessary adjustments to give effect to the orders this day shall include the deduction from the wife’s entitlement (if any), such orders for costs that have been previously made or are made by these orders.
12.
That save as to issues of any superannuation entitlement, each party otherwise retain to the exclusion of the other, all other property in that person’s name as at this date.
13.
That the wife pay the husband’s costs of and incidental to all of the hearing dates in December 2016 and February 2017 in an amount to be agreed and failing agreement as assessed.
14.
That the wife pay the costs of the Independent Children’s Lawyer of and incidental to the hearings in December 2016 and February 2017 in an amount to be agreed and failing agreement as assessed.
15.
That the applications be otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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