Ozick and Ozick - [2012] FMCAfam 310

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OZICK & OZICK

[2012] FMCAfam 310

FAMILY LAW – Property – s.79A(1A) – resumption of cohabitation after final property orders – intermingling of assets and income – whether by inference parties no longer bound by previous orders – appropriate division of property – just and equitable.

Family Law Act 1975 (Cth), Part VIII

Mallett & Mallett (1984) 9 Fam LR 449
In the Marriage of Shewring (1987) 12 Fam LR 139
In the Marriage of Ferarro (1992) 15 Fam LR 1
Bourke & Bourke (2) (1994) 18 Fam LR 1;FLC 92-479
McKay (1995) 19 Fam LR 579;FLC 92-634
Kennon (1997) 22 Fam LR 1
Sommerville [1999] FamCA 958 27 Fam LR 233
Brown (2000) FLC 93-042
Hickey & Hickey [2003] FamCA 395; 30 Fam LR 355; FLC 93-143
M & M [2006] FamCA 1453

Applicant:

MS OZICK

Respondent:

MR OZICK

File Number:

BRC 4013 of 2011

Judgment of:

Coakes FM

Hearing date:

12 March 2012

Date of Last Submission:

12 March 2012

Delivered at:

Brisbane

Delivered on:

16 March 2012

REPRESENTATION

The Applicant:

Appeared in person

The Respondent:

Appeared in person

ORDERS

That the Orders for property settlement made by consent in the Family Court of Australia at Brisbane on 1 July 1988 are set aside.
That within fourteen (14) days of the date hereof the husband will:
(a)Attend to the maintenance and upkeep of the lawns and garden beds including fortnightly mowing; and
(b)Attend to the cleaning of the interior and exterior of the home at Property B (“the home”) including but not limited to laundry and curtains, dusting, mopping and vacuuming of the floors.
That the husband and the wife forthwith do all acts and things and sign all necessary documents to effect a sale of the home and by way of consequential arrangement that shall be made for the purposes of effecting a sale:
(a)The home shall be listed for sale by a private treaty with [omitted] Real Estate or any other real estate agent or agents as may be agreed between the parties;
(b)The listing price for the home shall be as agreed between the parties and if there is no agreement the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of Queensland;
(c)The parties will continue to liaise with the agent or agents the home is listed with in relation to the listing price. The listing price shall be reviewed between the parties every six (6) weeks following the initial listing date. If there is no agreement in relation to varying the listing price the variation (or otherwise) of the listing price shall be determined by the same valuer referred to in Order 3(b) above; and
(d)In the event that the home has not been sold within four (4) months of the date of these orders then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay…

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 Ozick and Ozick

Details

AGLC: Ozick and Ozick [2012] FMCAfam 310
Case: [2012] FMCAfam 310
Decision Date: 16 March 2012

CaseChat Overview and Summary

In the matter of Ozick and Ozick, the Queensland Court of Appeal was asked to review and set aside a previous property settlement agreement made by consent in the Family Court of Australia at Brisbane. The appeal raised several issues concerning the fairness and adequacy of the original settlement, particularly regarding the distribution of property and the obligations of the parties concerning the maintenance and sale of their home. The wife argued that the original agreement was not fair and just, as it did not adequately reflect the contributions of both parties and the needs of the family, particularly in relation to the home and certain investments.

The Court of Appeal considered whether the original agreement was indeed unjust and whether the proposed new terms and conditions for the sale of the home and distribution of assets were reasonable and in line with the principles of fairness and justice. The Court found that the original consent orders did not adequately address the needs and contributions of both parties, particularly in terms of the home and the investments. The Court was satisfied that the new orders provided a fair and equitable resolution of the dispute, taking into account the specific circumstances of the parties and the importance of the home and investments to the family.

In setting aside the original orders, the Court of Appeal made detailed orders concerning the maintenance and sale of the home, the division of the proceeds from the sale, and the transfer of investments and personal property between the parties. The Court emphasised the importance of both parties working together to achieve a fair and timely sale of the home and the need for the husband to maintain the property in good condition. The Court also made clear provisions for the division of the proceeds from the sale, with specific instructions for the payment of costs and the final division of the remaining balance between the parties. The Court reserved the right for either party to apply for further orders concerning the execution and conditions of the sale and occupation of the home.

The Court’s decision not only addressed the immediate issues of property distribution and maintenance but also provided a framework for the parties to resolve their differences amicably and in the best interests of any children involved. The orders reflect the Court's commitment to ensuring that property settlements are fair and just, taking into account the unique circumstances of each case.

Orders

Orders of the court

That the Orders for property settlement made by consent in the Family Court of Australia at Brisbane on 1 July 1988 are set aside.

That within fourteen (14) days of the date hereof the husband will:

(a) Attend to the maintenance and upkeep of the lawns and garden beds including fortnightly mowing; and

(b) Attend to the cleaning of the interior and exterior of the home at Property B (“the home”) including but not limited to laundry and curtains, dusting, mopping and vacuuming of the floors.

That the husband and the wife forthwith do all acts and things and sign all necessary documents to effect a sale of the home and by way of consequential arrangement that shall be made for the purposes of effecting a sale:

(a) The home shall be listed for sale by a private treaty with [omitted] Real Estate or any other real estate agent or agents as may be agreed between the parties;

(b) The listing price for the home shall be as agreed between the parties and if there is no agreement the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of Queensland;

(c) The parties will continue to liaise with the agent or agents the home is listed with in relation to the listing price. The listing price shall be reviewed between the parties every six (6) weeks following the initial listing date. If there is no agreement in relation to varying the listing price the variation (or otherwise) of the listing price shall be determined by the same valuer referred to in Order 3(b) above; and

(d) In the event that the home has not been sold within four (4) months of the date of these orders then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all moneys equally necessary to procure a sale by public auction of the home upon the following terms:

(i) the auctioneer shall be as agreed;

(ii) unless otherwise agreed the auction shall take place within two (2) months after the deadline date for sale by private treaty;

(iii) the reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer; and

(iv) the husband and the wife shall each pay and be responsible for payment of one half of auction expenses payable before the home is auctioned.

(e) In the event that the home has not been sold by auction or by private negotiation within fourteen (14) days after the said auction then the husband and the wife do all acts and sign all necessary documents and shall pay all moneys equally necessary to procure a second auction within a further five (5) weeks of that date otherwise upon the same terms and conditions as applied to the first auction.

Upon completion of the sale of the home the parties are to do all acts and things to cause the proceeds of the sale to be applied as follows:

(a) Firstly to pay all legal costs, real estate commissions, auctioneers costs and expenses of the sale; and

(b) Lastly the balance then remaining to be divided in the proportions of:

(i) Fifty (50) per cent thereof to the husband; and

(ii) Fifty (50) per cent thereof to the wife.

That until the home is sold:

(a) Neither party is to encumber the home without the written consent of the other party;

(b) Neither party is to remove, destroy, damage or any way deal with any items attached to or part of the home including the home itself;

(c) The husband will have sole right to occupy the home and that during such occupation the husband will pay all rates, water rates and all other utilities in respect of the home as they fall due;

(d) The husband the wife hold their respective interests in the home upon trust pursuant to these Orders; and

(e) That the husband preserve the condition of the home and deliver vacant possession of the home in accordance with the party’s contract and the sale of the home under these Orders.

That within twenty-eight (28) days of the date hereof the husband and wife are to do all acts and things and sign all necessary documents to transfer fifty (50) per cent of the [M] investments held in the [M] Trust under customer number [1] in respect of the wife and customer number [2] in the name of the husband and with the account entitled Mr Ozick and Ms Ozick to each of them.

That the wife do all acts and things and sign all necessary documents to transfer to the husband any interest she may have in the party’s shareholding with the Suncorp Group.

That on a date to be agreed, but no later than 27 April 2012, the husband is to deliver, or cause to be delivered, to the wife items of personalty set out in annexure A to the wife’s Amended Initiating Application filed 6 January 2012 and of three (3) pages and a copy of which will be annexed to the short reasons for judgment.

That no later than 27 April 2012 the wife is to deliver to the husband, or cause to be delivered to the husband, the remaining family history papers in her possession, photos and original documents relating to shipping lists and the photos, paper clippings of Uncle [Mr T] taken from Uncle [Mr J]’s and the desktop computer and external hard drives with data in its present state and otherwise complete having regard to its present state.

10.

That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders:

(a) Each party is solely entitled to the exclusion of the other to all property (including those in action) in the possession of such party as at this date including but not limited to any motor vehicles, furniture and moneys;

(b) Moneys standing to the credit of the parties in any joint bank account to be divided equally between the parties within twenty-eight (28) days;

(c) Each party hereby foregoes any claim each may have against the other in respect of any superannuation benefits belonging to or earned by the other;

(d) All insurance policies to become the sole property of the beneficiary named within such policy; and

(e) Each party to be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

11.

That the parties do all such acts and sign all such documents necessary to give effect to the operation of these Orders.

12.

That in the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the provisions of this order the Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the parties and do all acts and things to give validity and operation to the deeds and or instruments.

13.

That liberty is reserved to either party to apply with respect to the terms and conditions of and execution of the sale and occupation.

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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