FAMILY COURT OF AUSTRALIA
Naylen & Naylen [2021] FamCA 392
File number(s): MLC 5725 of 2019 Judgment of: MCEVOY J Date of judgment: 15 June 2021 Catchwords: FAMILY LAW – PROPERTY – where the wife seeks the sale of a property the sole registered proprietor of which is the husband – where the wife submits that the asset pool must be preserved and protected – where the husband submits there is no urgency to sell the property – where the husband submits he would be significantly prejudiced by a premature sale of the property – where it is likely that the parties will be able to retain two properties – where the husband has refused to elect which property he seeks to retain – orders made for property to be sold and for the husband to continue to service the property’s mortgage, rates, taxes and all outgoings.
FAMILY LAW – INJUNCTIONS – exclusion from matrimonial home – where the wife seeks the sole use of the former matrimonial home – where the husband opposed the wife’s application – consideration of the hardship of each party – where a proper case exists for the making of the orders for sole use – order made for the husband to vacate the former matrimonial home and for the wife and children to have sole use.
1 FAMILY LAW – EVIDENCE – where the wife seeks a comprehensive report in relation to the husband’s current medical condition – where orders are made that the husband provide same within 60 days.
Legislation: Family Law Act 1975 (Cth) ss 79, 80(1)(h), 80(1)(k), 114(1) Cases cited: Bassett and Bassett [1975] Fam. Law 76
Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
Dean & Dean (1977) FLC 90-213
Fedele & Fedele (1986) FLC 91-744
Gabel & Yardley (2008) FLC 93-386
Herjiz & Herjiz [2017] FamCA 1062
Phillips v Phillips (1973) 1 WLR 615
Rowe & Rowe (1980) FLC 90-895
S & S [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-627
Number of paragraphs: 41 Date of hearing: 10 June 2021 Place: Melbourne Counsel for the Applicant: Mr Hannan Solicitor for the Applicant: Ms Bristow Counsel for the Respondent: Self-represented Solicitor for the Respondent: Self-represented ORDERS
MLC 5725 of 2019 BETWEEN: MS NAYLEN
Applicant
AND: MR NAYLEN
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
15 JUNE 2021
THE COURT ORDERS THAT:
1.The Suburb B property, being the property at C Street, Suburb B, in the State of Victoria, be sold forthwith and the proceeds be applied as follows:
(a)first, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage encumbering the Suburb B property;
(c)thirdly, to discharge all arrears owing in respect to the properties at 1 D Street, Suburb F and 2 D Street, Suburb F in the State of Victoria;
(d)fourthly, in payment of (or reimbursement to the wife if she has paid in the first instance)…
Continue reading Naylen & Naylen
Sign in free to access the full text
- AGLC
- Naylen & Naylen [2021] FamCA 392
- Case
- [2021] FamCA 392
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to order the sale of the Suburb B property, considering the husband's opposition and claims of prejudice against the wife's submissions regarding asset preservation. Additionally, the court had to consider the wife's application for sole use of the former matrimonial home, weighing the hardship each party would face. The court also addressed the wife's request for a comprehensive report on the husband's medical condition.
McEvoy J reasoned that given the indefinite adjournment of the trial due to the husband's medical conditions and the parties' inability to sustain their current debt levels, ordering the sale of the Suburb B property was the only practicable alternative. The court found it was not fair, just, or reasonable for the wife and children to remain in their current accommodation while the husband continued to reside in the former matrimonial home. The court applied principles of preserving the asset pool and ensuring a just and equitable outcome for the parties and their children.
The court ordered the sale of the Suburb B property, with proceeds to cover sale costs, discharge the mortgage, and address arrears on other properties. The husband was ordered to continue servicing the mortgage and outgoings for the Suburb B property pending its sale. The wife was granted sole conduct of the sale and sole use of the Suburb B property until settlement. The husband was ordered to vacate the Suburb B property within 14 days and provide a vacate clean. Furthermore, the court ordered a division of the Suburb F properties, with the wife, children, and her parents to reside at 1 D Street and the husband to reside at 2 D Street. The husband was also ordered to provide a comprehensive medical report within 60 days.
Orders
Orders of the court
MLC 5725 of 2019
BETWEEN:
MS NAYLEN
Applicant
AND:
MR NAYLEN
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
15 JUNE 2021
THE COURT ORDERS THAT:
1. The Suburb B property, being the property at C Street, Suburb B, in the State of Victoria, be sold forthwith and the proceeds be applied as follows:
(a) first, to pay all costs, commissions and expenses of the sale;
(b) secondly, to discharge the mortgage encumbering the Suburb B property;
(c) thirdly, to discharge all arrears owing in respect to the properties at 1 D Street, Suburb F and 2 D Street, Suburb F in the State of Victoria;
(d) fourthly, in payment of (or reimbursement to the wife if she has paid in the first instance) any cleaning/removal/storage/repair or other costs reasonably incurred by the wife in her capacity as having sole conduct of the sale;
(e) fifthly, the balance to be invested and remain in a controlled monies account by G Solicitors pending final property settlement in this matter, save for any agreement in writing by both parties to pay agreed disbursements.
2. Pending settlement of the sale of the Suburb B property or until further order, the respondent husband pay all instalments pursuant to the mortgage secured over the Suburb B property and all rates, taxes and like apportionable outgoings of the real property as and when they fall due.
3. The applicant wife have the sole conduct of the sale/sole use (until settlement) of the Suburb B property with the applicant wife to keep the respondent husband advised in writing in a timely manner of the terms and conditions of the sale, reserve price, progress of sale/offers and settlement and any necessary cleaning/removal/storage/repair costs.
4. Leave be granted to the applicant wife to provide the selling agents with a sealed copy of these orders.
5. Within 14 days of these orders, the respondent husband shall vacate the Suburb B property (and provide the applicant wife with all keys/remotes/access codes etc.) and ensure, at his expense, that the Suburb B property undergoes a vacate clean, subject to the satisfaction of the applicant wife and the selling agents.
6. In the event that the respondent husband neglects, refuses or is unable to sign any document required for the execution of these orders, then a registrar of the Family Court of Australia at Melbourne execute the deed or instrument in the name of the defaulting party pursuant to section 106A of the Family Law Act 1975 (Cth).
7. Within 28 days of the date of these orders the applicant wife, her parents and children vacate the property at 2 D Street, Suburb F and the respondent husband vacate the property at 1 D Street, Suburb F, with the applicant wife, her parents and the children taking up residence at 1 D Street, Suburb F and the respondent husband taking up residence at 2 D Street, Suburb F.
8. The respondent husband forthwith instruct his treating Specialist, Dr H, to provide a comprehensive report in relation to the respondent husband’s current medical condition, recommendations as to his future treatment and the prospects of the respondent husband re-entering the workforce at some time in the future having regard to his medical condition, such report to be provided to the applicant wife within 60 days, being by no later than 4.00pm on 14 August 2021.
9. The applicant wife’s application in a case filed 31 March 2021 be otherwise dismissed, save in respect to costs.
10. The respondent husband’s response to application in a case filed 5 May 2021 be dismissed.
11. The applicant wife file and serve any affidavit material and submissions in support of her application for costs on or before 4.00pm on 29 June 2021.
12. The respondent husband file and serve any affidavit material and submissions in opposition to the costs claimed by the applicant wife on or before 4.00pm on 13 July 2021.
13. The respondent husband’s application in a case filed 25 May 2021 be adjourned to the Judicial Duty List before the Honourable Justice McEvoy on 13 September 2021.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.