Perez& Fouger - [2018] FamCA 444

FAMILY COURT OF AUSTRALIA

PEREZ& FOUGER

[2018] FamCA 444

FAMILY LAW – PROPERTY – De facto relationship – Where the husband seeks by way of a case guardian that he receive 70 per cent of the asset pool – Where the wife seeks that the asset pool be equally shard between the parties – Where the husband was involved in a serious motor vehicle accident prior to separation – Where the husband received a significant compensation payment for injuries sustained in that motor vehicle accident – Where the use of the compensation money prior to separation is in dispute – Where the husband purposefully dissipated the compensation money following separation – Where the wife has some entitlement to the compensation money – Where the parties contributions up until the husband’s accident were equal – Where the wife made a slightly greater contribution to the asset pool following the husband’s accident – Where the husband has failed to make full disclosure as to his financial position and employment – Where the husband’s evidence as to his employment and future capacity for work is less than satisfactory – Where the husband adduces limited medical evidence as to his health – Where the wife has had the benefit of the sole use of an interim property distribution – Where such distribution should be considered under s90SF(3) and not as an add back – Where a small adjustment in favour of the husband is warranted for s90SF(3) factors – Where the asset pool should be distributed equally between the parties – Where the husband to pay the wife to effect such distribution – Where the wife seeks to retain the former matrimonial home – Where the wife should be given the opportunity to buy the husband’s share of the former matrimonial home – Orders made accordingly.

Civil Liability Act 2002 (NSW) s 15
Family Law Act 1975 (Cth) ss 79(4), 75(2)90SF, 90SM
Family Law Rules 2004 (Cth) dictionary

AJO & GRO (2005) FLC 93-218; [2005] FamCA 195 Bevan & Bevan [2013] FamCAFC 116 Black & Kellner (1992) FLC 92-287 Fontana & Fontana [2017] FamCA 374 Fontana & Fontana [2018] FamCAFC 63 Griffiths v Kerkemeyer (1977) 139 CLR 161 Kowaliw & Kowaliw (1981) FLC 91-092 NHC & RCH (2004) FLC 93-204; 32 Fam LR 518; [2004] FamCA 633 SMB & MFB [2006] FamCA 46 Scott & Scott (1994)FLC 92-457 Stanford & Stanford (2012) 247 CLR 108 Thornton & Thornton and Anor [2016] FamCAFC 61 Toft & Royce [2013] FamCA 372 Watson & Ling [2013] FamCA 57 Williams & Williams [2007] FamCA 313
APPLICANT:	Mr Perez

RESPONDENT:

Ms Fouger

FILE NUMBER:

PAC

3450

2015

DATE DELIVERED:

15 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

19, 20 & 21 September 2017, 24 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Longworth

SOLICITOR FOR THE APPLICANT:

Brydens Lawyers

COUNSEL FOR THE RESPONDENT:

Ms DeVere

SOLICITOR FOR THE RESPONDENT:

Taylor and Scott Lawyers

Orders

That within 56 days from the date…

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 Perez& Fouger

Details

AGLC: Perez& Fouger [2018] FamCA 444
Case: [2018] FamCA 444
Decision Date: 15 June 2018

CaseChat Overview and Summary

This matter concerned orders made by Hannam J in the Family Court of Australia, detailing the division of property between a husband and wife. The central dispute revolved around the jointly owned property located at B Street, Suburb C, New South Wales. The orders prescribed a detailed mechanism for the transfer of the husband's interest in this property to the wife, contingent upon the wife's discharge of a mortgage and payment of a capital sum.

The court was required to determine the precise terms and conditions under which the jointly owned property would be transferred and, in the event of non-compliance with the primary transfer conditions, the process for its sale. This included specifying the roles of each party in listing and selling the property, setting reserve prices, and determining how the proceeds of sale would be distributed. Furthermore, the court addressed issues of exclusive occupation, maintenance of the property, and the indemnification of each party against certain liabilities.

The court's reasoning, as reflected in the orders, established a clear framework for the property settlement. It prioritised the transfer of the property to the wife, subject to her fulfilling specific financial obligations. In the alternative, a structured sale process was outlined, with detailed provisions for agent and conveyancer nomination, auction procedures, and reserve price adjustments. The orders also clarified the parties' respective entitlements to the net sale proceeds, with a specific adjustment to the wife's share. Crucially, the court also made declarations regarding the parties' sole ownership of other assets and provided for mutual indemnities concerning liabilities. Finally, the court appointed a Registrar to execute documents in the event of a party's default and granted liberty to apply for implementation or enforcement.

Orders

Orders of the court

That within 56 days from the date of these Orders, the Husband shall transfer to the Wife all his right, title and interest in the jointly owned property known as and situate at B Street, Suburb C in the State of New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier … (“the Suburb C Property”).

That simultaneously with the transfer by the Husband to the Wife in accordance with Order 1 herein, the Wife shall:

(a) do all acts and things and sign all such documents necessary to discharge the mortgage to the D Bank Limited secured against the Suburb C Property (registered no. …) (“the D Bank Mortgage”); and

(b) pay the Husband the sum of $268,277 (“the Capital Sum”); and

(c) indemnify and keep indemnified the Husband in relation to any and all encumbrances, debts, taxes, imposts, outgoings and/or utilities secured against or in relation to the Suburb C Property.

That in the event the Wife fails to comply (or gives the Husband prior notice she cannot comply) with Order 2 herein, the Parties shall do all acts and things and sign all documents necessary to list for sale by public auction (after no more than a four-week marketing campaign at first instance) and thereafter sell the Suburb C Property as follows:

(a) within seven days from the date of the Wife’s non-compliance or providing the Husband prior notice she cannot comply with Order (2) herein, the Husband shall nominate two listing agents and two conveyancers in writing to the Wife and provide her copies of those individuals’ cost agreements and/or other relevant documents relating to their possible retainment;

(b) upon receipt of the documents from the Husband referred to in Order (3)(a) herein, within seven days thereafter the Wife shall nominate one of each those listing agents and conveyancers and sign all necessary documents to enable the listing of the Suburb C Property by public auction and a contract for the sale of land to be prepared and return copies of same to the Husband, which he must then also sign and provide evidence to the Wife he has submitted such documents to each of the nominated listing agent and conveyancer within seven days of receipt;

(c) in the event the Husband fails, refuses or neglects to comply with Order (3)(b) herein the Wife shall have carriage of the sale of the Suburb C Property to the exclusion of the Husband and this order shall serve as an authority for the listing agent and conveyancer chosen by the Wife, to accept the instructions and signature of the Wife in place of that of the Husband;

(d) the Parties shall set the auction reserve price at $770,000 unless otherwise agreed in writing; and

(e) the Parties shall accept the highest offer made on the day of the auction within 5 per cent of the reserve price, unless otherwise agreed between them in writing.

That in the event the Suburb C Property is passed in at the first auction, the Parties shall subject it to successive auctions with a reserve price of 5 per cent lower than the immediate preceding auction until sold, with each auction being no more than six weeks apart, unless otherwise agreed in writing.

That notwithstanding the provisions for sale in Orders (3) and (4) herein, the Parties shall be at liberty, if agreed in writing, to sell the Suburb C Property at any time to any purchaser.

That pending settlement of the sale of the Suburb C Property in accordance with these Orders, the Husband shall be entitled to exclusive occupation of the said property and shall:

(a) keep and maintain the property in good order;

(b) follow the listing agent’s advice, as far as practicable, to ensure the property is tidied and cleaned to make it presentable for inspection and sale;

(c) co-operate with the listing agent including providing a key to him/her when requested, allowing inspections at all reasonable times;

(d) make all required mortgage repayments (principal and interest) on the D Bank Mortgage as and when same falls due and in the event the Husband fails, refuses or neglects to make such repayments, such equivalent amounts required to be paid by him shall be deducted from the Husband's share of the balance of the net sale proceeds prior to him receiving such share otherwise payable to him; and

(e) Provide vacant possession of the property prior to or on the completion of the sale with such completion date to be not more than the standard six week period from exchange, unless otherwise agreed in writing.

That pending completion of the sale of the Suburb C Property, in accordance with these Orders:

(a) the Parties be restrained from encumbering, further encumbering or in any way dealing with the said property, including increasing the indebtedness of any mortgage or loan secured against the title of same;

(b) the Husband is to promptly pay or cause to be paid, and is hereby held exclusively liable to the exclusion of the Wife in respect of all outgoings, Council and Water rates, expenses and utilities (including arrears) charged or levied against, or in association with, the said property, as and when such debts fall due and payable; and

(c) in the event the Husband fails, refuses or neglects to comply with Order (7)(b) herein, such amounts required to be paid by him shall be deducted from the Husband's share of the balance of the net sale proceeds prior to him receiving such share otherwise payable to him.

That from the date of these Orders, the Husband shall indemnify and keep indemnified the Wife in relation to any and all encumbrances, debts, taxes, imposts, outgoings and/or utilities secured against or in relation to the Suburb C Property.

That, if applicable, upon settlement of the sale of the Suburb C Property, the proceeds of sale shall be distributed in the following manner and priority:

(a) firstly, in payment of the selling agent’s commission, auction expenses and all reasonable costs incurred in advertising the Suburb C Property;

(b) secondly, in payment of the conveyancer/solicitor’s costs in respect of the sale;

(d) fourthly, in payment or adjustment of all Council rates, water rates and utility expenses in respect of the Suburb C Property; and

(e) fifthly, as to the remaining balance:

(i) 50 per cent to the Husband less $28,000 and subject to Orders (6)(d) and (7)(c) herein; and

(ii) 50 per cent to the Wife plus $28,000.

10.

That except as specifically provided for by these Orders and to the contrary:

(a) the Husband is declared to be the sole owner and the Wife has no interest in any and all property and/or financial resources in the Husband's name, possession or control; and

(b) the Wife is declared to be the sole owner and the Husband has no interest in any and all property and/or financial resources in the Wife's name, possession or control.

11.

That except as otherwise specifically provided for by these Orders and to the contrary:

(a) the Wife indemnify and keep indemnified, and releases and holds harmless, the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to any liabilities in the name of the Wife; and

(b) the Husband indemnify and keep indemnified, and releases and holds harmless, the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to any liabilities in the name of the Husband.

12.

That in the event the Husband or the Wife fails, refuses or neglects to sign any documents necessary to give effect to these Orders then a Registrar of the Family Court of Australia at Parramatta is appointed, pursuant to Section 106A of the Family Law Act 1975 (Cth) to sign any document necessary to give effect to these Orders instead of the party in default and the other party shall be at liberty to make an application for costs arising in respect of the default.

13.

That each party has liberty to apply as to the implementation or enforcement of these Order upon giving seven days’ written notice to the other.

14.

That any application for costs be made by way of written submissions filed directly with chambers within 14 days from this date with any submissions in response to be filed directly with chambers within a further 7 days with judgment to be reserved thereafter.

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

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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