Obrien and Sinclair - [2016] FCCA 3340

FEDERAL CIRCUIT COURT OF AUSTRALIA

OBRIEN & SINCLAIR

[2016] FCCA 3340

Catchwords:
FAMILY LAW – Property – Contributions.

Legislation:

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

Cases cited:

Beklar v Beklar [2013] FAMCA 327
Stanford v Standford [2012] HCA 52
In the Marriage of Hickey [2003] FamCA 395
Pierce & Pierce [1998] FamCA 74
Norman v Norman [2010] FamCAFC 66
Kennon & Kennon (1997) 22 Fam LR 1
Vass & Vass [2015] FamCAFC 51
Brown and Brown (2007) FLC 93-316

Applicant:

MS O’BRIEN

Respondent:

MR SINCLAIR

File Number:

MLC 7086 of 2015

Judgment of:

Judge Williams

Hearing dates:

10 – 12 August 2016 & 25 October 2016

Date of Last Submission:

13 December 2016

Delivered at:

Melbourne

Delivered on:

21 December 2016

REPRESENTATION

Counsel for the Applicant:

Ms Harris of Counsel

Solicitors for the Applicant:

Lennon Mazzeo

Counsel for the Respondent:

Mr Clarke of Counsel

Solicitors for the Respondent:

Robert M Phelan & Co Pty

ORDERS

Within 30 days from the date of the making of these; -
(a)The husband and the wife forthwith and no later than 14 days after these orders do all acts and things and sign all documents necessary to cause the sum of $30,000 to be withdrawn from the loan facility with the (omitted) Bank secured by the property known as and situate at Property A in the state in Victoria more particularly described as all that piece or parcel of land contained in certificate of title volume (omitted) folio (omitted), (“the Property A property”) and paid to the husband or as he directs being an advance of the property due to him pursuant to paragraph 5e. of these orders;
(b)Within 21 days of the payment to the husband (or payment as he directs) of the sum of $30,000 the husband shall immediately vacate the former matrimonial home situate and located at Property B (“the Property B property”), (more particularly described at certificate of title volume (omitted), folio (omitted)) and thereafter the wife shall be entitled to sole occupancy of the Property B property to the exclusion of the husband.
The Wife forthwith do all acts and things necessary to cause the Property A property to be sold at the best price on the following terms and conditions;
(a)Within 28 days of the making of these orders:
(i)list the property for sale with a real estate agent;
(ii)instruct a solicitor or conveyancer to act upon the sale of the property;
(b)Within 7 days of listing the property with the nominated real estate agent the wife shall nominate; -
(i)A date for the sale of the Property A property by public auction being a date not less than 2 months and not more than 5 months from the date of the orders unless otherwise agreed by the parties in writing, and thereafter advise the husband’s solicitors of the proposed date for auction;
(ii)A reserve price for the auction and seek the agreement of the husband via his solicitors to the reserve price and in the event…

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 Obrien and Sinclair

Details

AGLC: Obrien and Sinclair [2016] FCCA 3340
Case: [2016] FCCA 3340
Decision Date: 21 December 2016

CaseChat Overview and Summary

This matter concerned orders made by Judge Williams in the Federal Circuit Court of Australia concerning the property settlement between a husband and wife. The dispute revolved around the division of assets, specifically two properties, and the associated financial obligations.

The court was required to determine the terms of the property settlement, including the immediate withdrawal of funds from a loan facility secured against one property, the vacating of the former matrimonial home, the sale of another property, and the distribution of proceeds from that sale. Further issues included the allocation of debts, the transfer of interests in properties, and the finalisation of the parties' financial relationship.

The court ordered that $30,000 be withdrawn from a loan facility secured against Property A and paid to the husband, who was then required to vacate the former matrimonial home, Property B, within 21 days of receiving the funds. The wife was directed to list Property A for sale within 28 days, with specific timelines for auction, setting a reserve price, and negotiating the sale. The proceeds of the sale were to be applied first to sale costs, then to discharge the mortgage on Property A, followed by an amount for capital gains tax, and then reimbursement to the wife for sale expenses. The remaining balance was to be distributed such that the wife received 77% and the husband 23% of the non-superannuation property pool, taking into account prior distributions. The husband was to transfer his interest in Property B to the wife upon settlement of Property A, and the wife was to discharge the mortgage on Property B and refinance it in her sole name. The court also made orders regarding the division of personal belongings, the payment of debts, and the dismissal of extant property and spousal maintenance applications, noting the parties' intention for these orders to finally determine their financial relationship.

Orders

Orders of the court

Within 30 days from the date of the making of these; -

(a) The husband and the wife forthwith and no later than 14 days after these orders do all acts and things and sign all documents necessary to cause the sum of $30,000 to be withdrawn from the loan facility with the (omitted) Bank secured by the property known as and situate at Property A in the state in Victoria more particularly described as all that piece or parcel of land contained in certificate of title volume (omitted) folio (omitted), (“the Property A property”) and paid to the husband or as he directs being an advance of the property due to him pursuant to paragraph 5e. of these orders;

(b) Within 21 days of the payment to the husband (or payment as he directs) of the sum of $30,000 the husband shall immediately vacate the former matrimonial home situate and located at Property B (“the Property B property”), (more particularly described at certificate of title volume (omitted), folio (omitted)) and thereafter the wife shall be entitled to sole occupancy of the Property B property to the exclusion of the husband.

The Wife forthwith do all acts and things necessary to cause the Property A property to be sold at the best price on the following terms and conditions;

(a) Within 28 days of the making of these orders:

(i) list the property for sale with a real estate agent;

(ii) instruct a solicitor or conveyancer to act upon the sale of the property;

(b) Within 7 days of listing the property with the nominated real estate agent the wife shall nominate; -

(i) A date for the sale of the Property A property by public auction being a date not less than 2 months and not more than 5 months from the date of the orders unless otherwise agreed by the parties in writing, and thereafter advise the husband’s solicitors of the proposed date for auction;

(ii) A reserve price for the auction and seek the agreement of the husband via his solicitors to the reserve price and in the event that agreement cannot be reached the parties shall accept the reserve price as set by the President of the Real Estate Institute of Victoria or his/her nominee;

(iii) Other terms and conditions of sale;

(c) The wife shall follow the reasonable recommendations of the nominated real estate agent in relation to the sales and marketing of the Property A property.

(d) On the date of the auction of the Property A property the Wife shall attend at the auction and provide instructions to the real estate agent and negotiate directly with any prospective purchaser in the event that the property does not reach the reserve price.

(e) Upon the sale of the property the wife shall cause the husband’s solicitors to be forwarded a copy of the signed contract for sale.

Upon the exchange of contracts for the sale of the Property A property the husband shall sign all documents necessary and give any necessary authority or consent to the registered mortgagee of the Property A property to permit the preparation of the discharge of the mortgage on that property and provide to the wife’s solicitors a withdrawal of Caveat, in registrable form, if applicable.

In the event that the Property A property does not sell at auction, then the wife shall take the advice of the Real Estate Agent regarding the date of a further auction and otherwise have the property promoted for private sale.

Upon the completion of the sale of the Property A property the proceeds of sale shall be distributed in the following manner and priority; -

(a) In payment of all costs, commissions and expenses associated with the sale including the conveyancing costs;

(b) In discharge of the mortgage registered on the title to the (omitted) Bank;

(c) In payment of an amount sufficient to meet the Wife’s capital gains tax assessment on the sale of the property which amount is to be agreed between the parties and failing such agreement to be assessed by an accountant instructed by the parties jointly and at their joint expense to assess the amount of capital gains tax liability, and this amount shall be held in the trust account of Lennon Mazzeo Lawyers on behalf of the parties jointly pending payment to the Australian Taxation Office and in the event that such calculation cannot be prepared prior to the settlement of the sale then an amount of $100,000 shall be held in trust as provided for herein and after assessment and payment to the Australian Taxation Office, any surplus thereafter shall be distributed to the parties in the same manner as provided for in 5e. herein;

(d) In reimbursement to the wife for any expense incurred by her in relation to the sale by way of payment of advertising, legal searches or expenses;

(e) The balance then remaining to be divided between the parties as follows:

(i) to the wife the amount required to give the wife a total aggregate distribution of 77% of the non-superannuation property pool as set out in Schedule A herein taking into account the wife’s distribution pursuant to these orders;

(ii) to the husband the amount required to give the husband a total aggregate distribution of 23% of the non- superannuation property pool as set out in Schedule A herein taking into account the husband’s distribution pursuant to these orders including the advance payment received in paragraphs 1a & b. herein;

Pending the sale of the Property A property the wife shall be responsible for the payment of all debts and liabilities associated with that property including the mortgage repayments, rates and insurances and the wife shall be otherwise solely entitled to the rental income from that property.

That simultaneously with the settlement of the sale of the Property A property and the distribution to the parties pursuant to paragraph 5e. herein; -

(a) The husband shall do all such acts and things and sign all necessary documents to transfer to the wife, at the expense of the wife, all of his right, title, and interest in the property at Property B (“the Property B property”), (more particularly described at certificate of title volume (omitted), folio (omitted)) including provision of a Withdrawal of Caveat in registrable form, if applicable.

(b) The wife is to do all such acts and things necessary, at her expense, to discharge the mortgage or any other encumbrance affecting the Property B property and in the names of the parties jointly and thereafter refinance the same in her sole name.

The husband shall sign all documents necessary and give any necessary authority or consent to the registered mortgagee of the Property A property to permit the preparation of the discharge of the mortgage on that property.

That as and from the date of these orders the wife shall pay all instalments pursuant to the mortgage and all rates, taxes and outgoings including insurance on the Property B property as and when they fall due.

10.

The upon vacating the Property B property the husband shall remove and retain; -

(a) All sporting and angling equipment;

(b) Personal clothing;

(d) The King size bed and linen;

(e) The (omitted) 40-inch Television set;

(f) One half of the wine collection;

(g) His books;

(h) His personal papers;

(i) The filing cabinet;

(j) His tools;

(k) His personal work items;

(l) (omitted) the dog and associated items used for (omitted).

11.

Upon the husband vacating the Property B property pursuant to paragraph 2b. herein, the husband is restrained by injunction from entering on to the Property B property for any reason without the written consent of the wife.

12.

Contemporaneously with the making of these orders and unless specified otherwise, the wife be liable for and pay or cause to be paid to and indemnify the husband absolutely in relation to:

(a) Any and all debts in the wife’s name;

(b) Any and all credit card liabilities in the wife’s name.

13.

Contemporaneously with the making of these orders and unless specified otherwise, the husband be liable for and pay or cause to be paid to indemnify the wife absolutely in relation to:

(a) Any and all credit card or other like personal debts in the husband’s name; and

(b) Any and all debts in the husband’s name or any business in which the husband has an interest.

14.

Save as herein before provided, that each of the husband and the wife shall retain for their sole use and benefit absolutely free from any further claim or demand from the other all other property as is in their respective possession and control including but not limited to; -

(a) Deposits in any bank accounts;

(b) Any superannuation entitlements standing to the credit of a party.

15.

Upon the making of these orders the joint tenancy of the parties in respect of the Property B property is severed.

16.

In the event that either party refuses or neglects to sign any document or give any necessary authority or consent or do any act or thing necessary to give effect to these orders within 7 days of being requested to do so, then the Registrar of the Federal Circuit Court of Australia at Melbourne is appointed pursuant to section 106A of the Family Law Act 1975 to execute all such documents in the name of the party in default and to do all things necessary to give validity and operation to these orders.

17.

That all extant property and spousal maintenance applications be and are hereby dismissed.

AND THE COURT NOTES:

A. The Court notes that the Property A property is currently tenanted and will therefore be sold subject to that tenancy.

B. Pursuant to section 81 of the Family Law Act 1975, the parties intend these orders to finally determine the financial relationship between them and avoid further proceedings about property settlement and spousal maintenance.

Schedule A

Asset

Value

Property A property ( based on valuation)

$1,150,000

Property B property (based on valuation)

$1,425,000

Wife’s Everyday offset bank account

$15,000

Distribution to husband upon vacating Property B Property

$30,000

Sub total

$2,620,000

Liabilities

Value

Mortgage secure against Property A (Including $30,000 distribution to the Husband)

($340,000)

Mortgage secured against Property B

($850,000)

Amount to be retained for Capital Gains Tax on Property A

($100,000)

Sub Total Liabilities

$1,290,000

Nett Non-Superannuation Assets

$1,330,000

Distribution

77 % to the Wife

$1,024,000

23 % to the Husband

$305,900

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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