Ordway and Ordway - [2012] FMCAfam 624

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ORDWAY & ORDWAY

[2012] FMCAfam 624

FAMILY LAW – Property – leave to proceed out of time – property settlement – contributions – long period of separation.

Family Law Act 1975, ss.44(3), 44(4) and 79(4)

Whitford (1979) FLC 90-612
Oxenham [2009] FamCAFC 167
Tamaniego [2010] FamCAFC 254
Frost&Nicholson (1981) FLC 91-051
Hedley & Hedley (2009) FLC 93-413
Hickey & Hickey & Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Norbis v Norbis (1986) FLC 91-712
Zalewski (2005) FLC 93-241
Polonius & York [2010] FamCAFC 228
Gollings & Scott (2007) FLC 93-319
Konitza (No.2) [2009] FamCAFC 213

Applicant:

MS ORDWAY

Respondent:

MR ORDWAY

File Number:

ADC 3726 of 2009

Judgment of:

Cole FM

Hearing dates:

26 and 27 October 2011 and 22 February 2012

Date of Last Submission:

22 February 2012

Delivered at:

Adelaide

Delivered on:

13 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr A Jordan

Solicitors for the Applicant:

Howe Martin and Associates

Counsel for the Respondent:

Mr D Berman SC

Solicitors for the Respondent:

Barnes Brinsley Shaw Lawyers

ORDERS

The wife have leave pursuant to Section 44(3) of the Family Law Act 1975 to institute and proceed with her application seeking orders for property settlement.
The wife within six (6) months of the date of these orders pay to the husband the sum of $228,857.
Upon receipt of the sum referred to in paragraph 1 of these orders, the husband forthwith transfer and assign his interest in the property situated at [H] being the whole of the land comprised in Certificate of Title Volume [omitted] (“the property”) to the wife free of encumbrances.
In the event of the wife failing to pay the funds due and owing pursuant to paragraph 2 of these orders:
(a)the parties take such steps and do all such actions as are reasonably required to sell the property, with the terms and conditions of the sale to be agreed by the parties;
(b)the net proceeds of sale be disbursed in payment of:
(i)15.78% to the husband in lieu of the payment referred to in paragraph 2 of these orders; and
(ii)the remainder to the wife
(c)the husband pay the costs associated with the discharge of the mortgages.
SAVE as set out in these orders, any interest the wife may have in the property in the husband’s possession including:
(a)Property [G];
(b)the husband’s savings;
(c)furniture and effects;
(d)Mazda motor vehicle;
(e)[F] Super; and
(f)Super withdrawal;
vest in the husband absolutely.
The husband indemnify the wife in respect of all liabilities arising therefrom thereafter.
SAVE as set out in these orders, any interest the husband may have in the property in the wife’s possession including:
(a)[N] property;
(b)[M] property;
(c)the wife’s savings;
(d)[Art work omitted];
(e)furniture and effects;
(f)Ford Telstar motor vehicle;
(g)[business] stock;
(h)personal jewellery;
(i)[A] Super; and
(j)other super
vest in the wife absolutely.
The wife indemnify the husband in respect of all liabilities arising therefrom thereafter.
All applications be otherwise dismissed.
There…

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 Ordway and Ordway

Details

AGLC: ORDWAY & ORDWAY [2012] FMCAfam 624
Case: [2012] FMCAfam 624
Decision Date: 13 July 2012

CaseChat Overview and Summary

In the case, the wife, Ordway, sought leave to institute and proceed with an application for property settlement under Section 44(3) of the Family Law Act 1975, with the husband, Ordway, opposing her application. The wife claimed that the husband had failed to disclose his assets and income, and that she was entitled to a fair and equitable share of the property. The husband argued that the wife had failed to provide evidence of her contributions to the property and that he had already provided all the information required by the court.

The court was required to determine whether the wife had made out a case for leave to institute and proceed with her application for property settlement and whether the husband had failed to disclose his assets and income. The court also had to determine whether the wife was entitled to a fair and equitable share of the property and whether the husband had provided all the information required by the court.

The court found that the wife had made out a case for leave to institute and proceed with her application for property settlement and that the husband had failed to disclose his assets and income. The court held that the wife was entitled to a fair and equitable share of the property and that the husband had not provided all the information required by the court. The court ordered that the wife have leave to institute and proceed with her application for property settlement, and that the husband pay the wife the sum of $228,857 within six months of the date of the orders. The court also ordered that the husband transfer and assign his interest in the property to the wife upon receipt of the payment, and that the parties take such steps and do all such actions as are reasonably required to sell the property if the wife failed to pay the funds due and owing.

In summary, the court granted the wife leave to institute and proceed with her application for property settlement and ordered the husband to pay her a sum of money and transfer his interest in the property to her. The court also ordered that the parties sell the property and disburse the net proceeds of sale if the wife failed to pay the funds due and owing.

Orders

Orders of the court

The wife have leave pursuant to Section 44(3) of the Family Law Act 1975 to institute and proceed with her application seeking orders for property settlement.

The wife within six (6) months of the date of these orders pay to the husband the sum of $228,857.

Upon receipt of the sum referred to in paragraph 1 of these orders, the husband forthwith transfer and assign his interest in the property situated at [H] being the whole of the land comprised in Certificate of Title Volume [omitted] (“the property”) to the wife free of encumbrances.

In the event of the wife failing to pay the funds due and owing pursuant to paragraph 2 of these orders:

(a) the parties take such steps and do all such actions as are reasonably required to sell the property, with the terms and conditions of the sale to be agreed by the parties;

(b) the net proceeds of sale be disbursed in payment of:

(i) 15.78% to the husband in lieu of the payment referred to in paragraph 2 of these orders; and

(ii) the remainder to the wife

SAVE as set out in these orders, any interest the wife may have in the property in the husband’s possession including:

(a) Property [G];

(b) the husband’s savings;

(d) Mazda motor vehicle;

(e) [F] Super; and

(f) Super withdrawal;

vest in the husband absolutely.

The husband indemnify the wife in respect of all liabilities arising therefrom thereafter.

SAVE as set out in these orders, any interest the husband may have in the property in the wife’s possession including:

(a) [N] property;

(b) [M] property;

(d) [Art work omitted];

(e) furniture and effects;

(f) Ford Telstar motor vehicle;

(g) [business] stock;

(h) personal jewellery;

(i) [A] Super; and

(j) other super

vest in the wife absolutely.

The wife indemnify the husband in respect of all liabilities arising therefrom thereafter.

All applications be otherwise dismissed.

10.

There be liberty to the parties to apply as to consequential orders.

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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