OSWELL & OSWELL - [2020] FamCA 442

FAMILY COURT OF AUSTRALIA

OSWELL & OSWELL

[2020] FamCA 442

FAMILY LAW – INJUNCTIONS – Undefended interim hearing – Where consideration of applicable principles – Where appropriate to make order for sale of former family home and discharge of mortgage with remaining funds to be held on trust pending further order – Where proper that the husband be restrained from interfering with, disrupting or otherwise impeding the sale of the former family home.

Family Law Act 1975 (Cth) ss 80, 114
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Jarrah & Fadel [2014] FamCAFC 14
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

APPLICANT:

Ms Oswell

RESPONDENT:

Mr Oswell

FILE NUMBER:

PAC

692

2020

DATE DELIVERED:

3 June 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

13 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Dunn of Watts McCray (NSW) Pty Ltd

RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

Orders Made On 13 May 2020

That the Applicant Wife be appointed sole trustee for the sale of the property known as D Street, Suburb B NSW, being the land contained in folio Identifier … (hereinafter referred to as “the Suburb B property”) at the best price reasonably obtainable and for such purpose the same property shall vest in the wife as trustee.
That the Applicant Wife be hereby authorised to do all acts and sign all necessary documents to cause the Suburb B property to be sold by private treaty with a selling agent as selected by the Applicant, by a conveyancer instructed by the Applicant.
The Respondent Husband is hereby restrained from interfering with, disrupting or otherwise impeding the sale of the Suburb B property and is restrained from entering upon or otherwise remaining on that property.
Upon completion of the sale of the Suburb B property, the Applicant shall cause the proceeds of sale to be applied in the following manner:
4.1Payment of the agent’s commission, marketing expenses and other selling expenses;
4.2Payment of the conveyancing costs;
4.3Payment of such sum as is required to discharge the mortgage secured on that property;
4.4Payment of the sum of (or so much as is available) of $13,280 to C Company for the kitchen already ordered by the Applicant and the Respondent and manufactured by that entity;
4.5Payment of any remaining balance into a controlled moneys account in the names of the Applicant and the Respondent and controlled by the Applicant’s solicitors to be distributed by agreement or by Order of this Court.
Reasons for judgment be published at a later date.
The costs of the Applicant wife in terms of the interim application determined today be reserved.

The Court Notes That

The proceedings are otherwise listed for a Financial Case Assessment conference before the registrar at 2.00 pm on 23 June 2020.

Note: The form of the order is subject to the entry of the order in the Court’s…

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.

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Details

AGLC: OSWELL & OSWELL [2020] FamCA 442
Case: [2020] FamCA 442
Decision Date: 3 June 2020

CaseChat Overview and Summary

The case of *Oswell & Oswell* concerned a dispute between the parties, the Oswells, heard before Foster J. The precise nature of the dispute is not detailed in the provided text, but it involved a matter requiring judicial determination.

The central legal issue before Foster J was to determine the appropriate course of action or legal principle to apply in resolving the Oswells' dispute. The specific legal questions are not explicitly stated but would have revolved around the substantive law governing the parties' disagreement.

Foster J's reasoning and the legal principles applied are not elaborated upon in the provided text. The judgment would have involved an analysis of relevant legislation and case law to arrive at a decision that addressed the Oswells' dispute.

The final orders or outcome of the case are not discernible from the limited text provided.

Orders