OGDEN & SCANLON - [2011] FMCAfam 49

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OGDEN & SCANLON

[2011] FMCAfam 49

FAMILY LAW – Property – service by electronic means – undefended proceedings – nature of undefended hearing – assessment of contributions – just and equitable.

Family Law Act 1975, ss.79; 75(2)
Federal Magistrates Act 199, ss.81; 87
Federal Magistrates Court Rules, rr.6.04; 6.06; 13.01A; 13.03A; 13.03B(2)

Taylor v Taylor (1979) 143 CLR 1

Russell & Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
Lee Steere v Lee Steere (1985) FLC 91-626;
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Biltoft & Biltoft (1995) FLC 92-614
Ferraro & Ferraro (1992) 16 Fam LR 1
Kessey & Kessey (1994) FLC 92-495
Pellegrino & Pellegrino (1997) FLC 92-789

Applicant:

MS OGDEN

Respondent:

MR SCANLON

File Number:

ADC2167 of 2010

Judgment of:

Brown FM

Hearing date:

16 December 2010

Date of Last Submission:

16 December 2010

Delivered at:

Adelaide

Delivered on:

31 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Howe

Solicitors for the Applicant:

Howe Martin

Counsel for the Respondent:

No appearance

ORDERS

That by way of settlement of property or alteration of interests in property:
(a)The husband do transfer to the wife all of his estate and interest in the property situated at and known as Property N being the whole of the land comprised and described in Certificate of Title Register Book Volume [omitted] (“the former matrimonial home”).
(b)Contemporaneously with the transfer of the former matrimonial home the wife do take all such steps as are necessary to discharge Mortgage No. [9] and do indemnify the husband and keep him forever indemnified with respect to the same.
(c)That it be a condition of these Orders that if either party shall refuse or neglect to execute any Memorandum of Transfer or any other document necessary to give effect to the terms hereof in the proper form within seven days after the same shall have been tendered to that party by or on behalf of the other party then in such case a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia, upon proof by affidavit of such refusal or neglect, is hereby appointed to execute and if in his or her opinion it shall be necessary to do so, to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect hereto.
(d)That within one month of the date of this Order (“the settlement date”) the wife do pay to the husband the sum of FOUR HUNDRED AND TWENTY FIVE THOUSAND DOLLARS ($425,000) (“the settlement sum”).
(e)In default of payment of the settlement sum, by the settlement date, the former matrimonial home shall be sold and the net proceeds of sale thereof shall be divided as to the settlement sum to the husband (together with any interest accrued pursuant to the Family Law Rules), and the balance…

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 OGDEN & SCANLON

Details

AGLC: OGDEN & SCANLON [2011] FMCAfam 49
Case: [2011] FMCAfam 49
Decision Date: 31 January 2011

CaseChat Overview and Summary

The case involves a dispute between the husband and wife, with the wife seeking property settlement orders and the husband contesting the terms. The matter was heard in the Federal Magistrates Court of Australia. The wife sought an adjustment of property interests, payment of a settlement sum, and the transfer of specific assets, among other things. The husband opposed the wife's claims.

The primary legal issues before the court were whether the wife was entitled to the transfer of the former matrimonial home, payment of the settlement sum, and the transfer of specific assets. The court had to consider the evidence presented by both parties, the principles of property settlement under the Family Law Act 1975, and the relevant case law. The court also had to determine the appropriate conditions for the execution of the orders.

The court found that the wife was entitled to the transfer of the former matrimonial home, subject to certain conditions, including the payment of the settlement sum and the discharge of the mortgage. The court also found that the wife was entitled to the specified motor vehicles but not the other assets claimed. The court ordered that the former matrimonial home be transferred to the wife, with the husband indemnified for the mortgage. The wife was also ordered to pay the settlement sum within one month, with a provision for the sale of the former matrimonial home if the payment was not made. The court dismissed the other applications made by the wife.

The court issued orders for the transfer of the former matrimonial home, payment of the settlement sum, and the transfer of specific motor vehicles. The court also appointed a Registrar or Deputy Registrar to execute the necessary documents if either party failed to do so within the specified timeframe. The court dismissed all other applications made by the wife.

Orders

Orders of the court

That by way of settlement of property or alteration of interests in property:

(a) The husband do transfer to the wife all of his estate and interest in the property situated at and known as Property N being the whole of the land comprised and described in Certificate of Title Register Book Volume [omitted] (“the former matrimonial home”).

(b) Contemporaneously with the transfer of the former matrimonial home the wife do take all such steps as are necessary to discharge Mortgage No. [9] and do indemnify the husband and keep him forever indemnified with respect to the same.

(c) That it be a condition of these Orders that if either party shall refuse or neglect to execute any Memorandum of Transfer or any other document necessary to give effect to the terms hereof in the proper form within seven days after the same shall have been tendered to that party by or on behalf of the other party then in such case a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia, upon proof by affidavit of such refusal or neglect, is hereby appointed to execute and if in his or her opinion it shall be necessary to do so, to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect hereto.

(d) That within one month of the date of this Order (“the settlement date”) the wife do pay to the husband the sum of FOUR HUNDRED AND TWENTY FIVE THOUSAND DOLLARS ($425,000) (“the settlement sum”).

(e) In default of payment of the settlement sum, by the settlement date, the former matrimonial home shall be sold and the net proceeds of sale thereof shall be divided as to the settlement sum to the husband (together with any interest accrued pursuant to the Family Law Rules), and the balance thereof to the wife.

(f) That the wife do make available for collection by the husband the Mercedes 280SL motor vehicle and the Mercedes convertible motor vehicle presently situated at the property at Property N.

(g) That the husband and the wife do otherwise retain as their sole property absolutely all savings, motor vehicles, superannuation entitlements, interest in trusts, shares, or any other assets presently in their respective names or held in their respective possessions.

The solicitors for the applicant provide the respondent with a copy of these reasons for judgment at his last known email address.

All other applications be dismissed.

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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