Park and Park - [2011] FMCAfam 1023

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARK & PARK

[2011] FMCAfam 1023

FAMILY LAW – Section 75(2) adjustment – consideration as to the care of the children with respect to property adjustment – costs.

Family Law Act 1975, ss.75(2), 117
Federal Magistrates Act 1999, s.42

Kowaliw & Kowaliw (1981) FLC 91-092
Weir & Weir [1993] FLC 92-338
Black & Kellner [1992] FLC 92-287
Milankov & Milankov [2002] FamCA 195
M & M [2006] FMCAfam 424
Ferraro & Ferraro (1993) FLC 92-335
AJO & GRO [2005] FamCA 707
Burgoyne & Burgoyne (1978) FLC 90 - 467
Townsend & Townsend (1995) FLC 92-569
DJM & JLM (1998) FLC 92-816
Pierce & Pierce [1998] FamCA 74
SJS & NS (2005) FLC 93-214
Kennon & Kennon (1997) FLC 92-757
DR & CAJ [2005] FamCA 213
Bourke & Bourke (1993) FLC 92-356
Gould & Gould (1996) FLC92-657
Clauson (1995) FLC 92-595
C & C (2005) FLC 93-220
U & U (2002) 211 CLR 238
Donoghue v Stevenson [1932] All ER Rep 1

Applicant:

MS PARK

Respondent:

MR PARK

File Number:

PAC 4552 of 2010

Judgment of:

Harman FM

Hearing dates:

28 – 29 June 2011

Date of Last Submission:

29 June 2011

Delivered at:

Parramatta

Delivered on:

29 June 2011

REPRESENTATION

Counsel for the Applicant:

Mr Hazelwood

Solicitors for the Applicant:

McDonnell Schroder

Solicitors for the Respondent:

John R De Mattia & Co

ORDERS

The wife, Ms Park, shall by 4pm 14 September 2011, pay to the husband Mr Park an amount of $75,000. Simultaneous with Ms Park’s compliance:
(a)Mr Park shall, do all things, sign all documents, give all consents and authorities necessary to transfer to Ms Park, the whole of his right title and interest in the property Property Q, [Q];
(b)Ensure that all council and water rates and outgoings, services and utilities with respect to the property are paid up, and until the date of transfer and thereafter cooperating in transferring those amounts;
I can pause to say I have not made a specific order as to their payment pending refinance. But clearly, if there is an obligation for them to be paid and they are not paid, they will be deducted from the $75,000.
(c)Vacate the [Q] property, giving Ms Park vacant possession of same, and leaving the property in a neat, fit and proper state of repair; and
(d)
Ms Park shall do all things and give all consents necessary to discharge the mortgages for the Westpac Bank, and indemnify

Mr Park
with respect to the property and any liabilities relating to or arising from it.
For the purpose of order one, time shall be of the essence, and in the event that Ms Park is not in a position to comply with the Order by 4pm 14 September 2011, no extension of time is required to be given by Mr Park. In the event that Ms Park should fail to comply with order one within the time period specified, then Mr Park shall by 4pm on

30 November…

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 Park and Park

Details

AGLC: Park and Park [2011] FMCAfam 1023
Case: [2011] FMCAfam 1023
Decision Date: 29 June 2011

CaseChat Overview and Summary

In the matter of Park and Park, the Federal Circuit Court dealt with a property settlement dispute between the husband and wife. The wife, Ms Park, sought orders to secure payment of a sum of money from the husband, Mr Park, in exchange for transferring her interest in a jointly owned property to him. Mr Park, in turn, sought orders to secure payment of a sum of money from Ms Park, in exchange for transferring his interest in the property to her. The court was required to decide the financial settlement between the parties and the terms of the property transfer. The court found that the parties should exchange interests in the property for monetary payments, with a time limit for Ms Park to pay $75,000 to Mr Park. If Ms Park failed to make the payment, Mr Park would be required to pay $83,000 to her, with corresponding property transfers. The court also ordered the payment of costs and set out provisions for the management of the property during the interim period.

The court reasoned that the property settlement should be structured to ensure that each party had a clear incentive to complete the transaction, with a significant penalty for failing to do so. The court found that the proposed settlement achieved this, as it provided for a substantial payment from Ms Park to Mr Park if she wished to acquire his interest in the property, and vice versa. The court also found that the proposed settlement was fair and reasonable, taking into account the contributions of each party to the property and their respective financial circumstances. The court ordered that the property be transferred simultaneously with the payment of the relevant sum of money, and set out detailed provisions for the management of the property during the interim period. The court also ordered that the parties indemnify each other with respect to any liabilities relating to the property, and provided for the splitting of superannuation benefits.

Orders

Orders of the court

The wife, Ms Park, shall by 4pm 14 September 2011, pay to the husband Mr Park an amount of $75,000. Simultaneous with Ms Park’s compliance:

(a) Mr Park shall, do all things, sign all documents, give all consents and authorities necessary to transfer to Ms Park, the whole of his right title and interest in the property Property Q, [Q];

(b) Ensure that all council and water rates and outgoings, services and utilities with respect to the property are paid up, and until the date of transfer and thereafter cooperating in transferring those amounts;

I can pause to say I have not made a specific order as to their payment pending refinance. But clearly, if there is an obligation for them to be paid and they are not paid, they will be deducted from the $75,000.

(c) Vacate the [Q] property, giving Ms Park vacant possession of same, and leaving the property in a neat, fit and proper state of repair; and

(d)

Ms Park shall do all things and give all consents necessary to discharge the mortgages for the Westpac Bank, and indemnify

Mr Park

with respect to the property and any liabilities relating to or arising from it.

For the purpose of order one, time shall be of the essence, and in the event that Ms Park is not in a position to comply with the Order by 4pm 14 September 2011, no extension of time is required to be given by Mr Park. In the event that Ms Park should fail to comply with order one within the time period specified, then Mr Park shall by 4pm on

30 November 2011, pay to the wife an amount of $83,000 and simultaneously the same obligations will apply in reverse. In the event that neither party is in a position to acquire the other’s interest and refinance, the property shall be listed for sale and sold in accordance with the terms and conditions set out in the orders, and upon completion of the sale that the net balance remaining shall be paid to Ms Park.

Pending completion, the party in occupation of the property shall be responsible for all payments with respect to council and water rates, services and utilities, and shall ensure the property is insured at all times for its full insurable value, and maintain it in a neat, fit and proper state of repair.

There will be a superannuation splitting order providing for a base amount of $13,000 to be transferred from Ms Park’s superannuation to Mr Park. Otherwise, section 78 Declarations for each party to retain any motor vehicle, furniture, shares, funds in bank accounts or otherwise, contributions, or benefits and entitlements in relation to superannuation. Each will be liable for and indemnify the other with respect to any liability in their sole name.

In the event that either party shall fail, neglect or refuse to sign any deed, document or instrument required by or to give effect to these orders then the Registrar of the Federal Magistrates Court Parramatta shall be and is hereby authorised, directed and empowered to sign such deed, document or instrument in the name of the defaulting party (same to be proved by production of an affidavit by the party requesting signature) and to thereafter do all things and acts necessary to give validity and operation to same.

I order that the husband, by way of contribution to the wife’s costs, with respect to these proceedings, pay to the wife a sum of $7,700 representing counsel’s fees with respect to the hearing 27 and 28 June 2011.

Such costs shall be a charge upon the husband’s entitlements under orders for property adjustment made today, and may be deducted without interest from any sum to be paid by Ms Park to Mr Park.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

10.

These reasons are to be published with respect to both the substantive proceedings and the costs application.

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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