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…
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- AGLC
- ORDWAY & ORDWAY [2012] FMCAfam 624
- Case
- [2012] FMCAfam 624
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
The wife within six (6) months of the date of these orders pay to the husband the sum of $228,857.
3.
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.
4.
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.
5.
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.
6.
The husband indemnify the wife in respect of all liabilities arising therefrom thereafter.
7.
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.
8.
The wife indemnify the husband in respect of all liabilities arising therefrom thereafter.
9.
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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