Raeburn and Raeburn - [2010] FamCA 334

FAMILY COURT OF AUSTRALIA

RAEBURN & RAEBURN

[2010] FamCA 334

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Gambling – Initial contributions

Family Law Act 1975 (Cth) ss 75(2), 79

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355
Coghlan and Coghlan (2005) FLC 93-220; 32 Fam LR 414
Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Crawford and Crawford (1979) FLC 90-647
White and White (1982)FLC 91-246
Money and Money (1994) FLC 92-485
Pierce and Pierce (1999) FLC 92-844
Cabbell and Cabbell [2009] FamCAFC 205

APPLICANT:

Mr Raeburn

RESPONDENT:

Ms Raeburn

FILE NUMBER:

SYC

1914

2009

DATE DELIVERED:

30 April 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston JR

HEARING DATE:

28 & 29 January and 1 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Foster

SOLICITOR FOR THE APPLICANT:

MCW Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

Moira Ryan Lawyers

Orders

That the husband and the wife forthwith do all acts and things and sign all documents necessary to effect a sale of the property situate at and known as E property being the whole of the property contained in Folio Identifier … (“the home”) in accordance with the following conditions of sale:
1.1.That within 30 days from the date of these orders the parties will sign all selling authorities as may be necessary to enable the home to be listed for sale with a licensed real estate agent or agents as agreed between them and in default of agreement such agent or agents as may be nominated by the President for the time being of the Real Estate Institute of New South Wales or his nominee or its then present equivalent for such purpose.
1.2.That within 30 days from the date of these orders the parties will instruct a solicitor / conveyancer to have the carriage of the sale of the home being such solicitor as agreed between the parties and in default of agreement such solicitor as may be appointed by the President of the Law Society of NSW for such purpose.
1.3.That within 30 days from the date of these orders the parties will list the home at such price as the parties shall agree and failing agreement then at such price as may be determined by a valuer appointed by the President for the time being of the Australian Property Institute (NSW) Division or his nominee or its then present equivalent for such purpose.
1.4.The wife will co-operate in allowing access to the home at all reasonable times to prospective purchasers and such licensed real estate agent as may have been appointed by the parties in accordance with the provisions of these orders.
1.5.The wife will maintain the home in reasonable condition and repair having regard to its present condition and state, pending completion of the sale of the home.
1.6.If Contracts for Sale of the home…

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 Raeburn and Raeburn

Details

AGLC: Raeburn and Raeburn [2010] FamCA 334
Case: [2010] FamCA 334
Decision Date: 30 April 2010

CaseChat Overview and Summary

This matter concerned orders made by Johnston JR in the Family Court of Australia concerning the property of a husband and wife. The primary dispute revolved around the sale of their jointly owned home and the division of their various assets, including a superannuation fund and a motor vehicle.

The court was required to determine the terms and conditions under which the parties' home would be sold, including the process for listing, pricing, and negotiation of offers. Further issues included the wife's ongoing responsibilities for mortgage repayments and outgoings on the home pending its sale, and the distribution of the net proceeds of sale. The court also had to address the division of a superannuation fund and a motor vehicle, and make orders for the execution of documents to give effect to its decisions.

Johnston JR ordered that the parties forthwith take all necessary steps to sell their home, including listing it with an agent, appointing a solicitor to manage the sale, and agreeing on a sale price or obtaining a valuation. The wife was ordered to cooperate with prospective purchasers and maintain the property. The orders stipulated a timeframe for sale by private treaty, with provisions for public auction if not sold within four months, including a mechanism for setting and adjusting reserve prices and negotiating offers post-auction. The court also ordered the wife to continue making mortgage repayments and outgoings, with defaults to be deducted from her share of the proceeds. The proceeds of sale were to be applied first to sale costs and the mortgage discharge, then distributed with a specific percentage to the husband, a sum for a valuation report, and the balance to the wife.

Additionally, the court made orders pursuant to sections 90MT(4) and 90MT(1)(a) of the *Family Law Act 1975* (Cth) to allocate a base amount of $70,000 from the husband's superannuation fund to the wife, creating an entitlement for her and a corresponding reduction in the husband's entitlement. The trustee of the fund was directed to pay this entitlement in accordance with the relevant regulations. The husband was also ordered to sell a Mercedes Benz motor vehicle and divide the net proceeds equally with the wife. All other property was to remain with the parties as per their current ownership. The Registrar of the Family Court was appointed to execute documents in default of either party. The orders were to commence operation on 14 May 2010, with leave granted to relist the proceedings before that date for further submissions on the form of the orders.

Orders

Orders of the court

That the husband and the wife forthwith do all acts and things and sign all documents necessary to effect a sale of the property situate at and known as E property being the whole of the property contained in Folio Identifier … (“the home”) in accordance with the following conditions of sale:

1.1. That within 30 days from the date of these orders the parties will sign all selling authorities as may be necessary to enable the home to be listed for sale with a licensed real estate agent or agents as agreed between them and in default of agreement such agent or agents as may be nominated by the President for the time being of the Real Estate Institute of New South Wales or his nominee or its then present equivalent for such purpose.

1.2. That within 30 days from the date of these orders the parties will instruct a solicitor / conveyancer to have the carriage of the sale of the home being such solicitor as agreed between the parties and in default of agreement such solicitor as may be appointed by the President of the Law Society of NSW for such purpose.

1.3. That within 30 days from the date of these orders the parties will list the home at such price as the parties shall agree and failing agreement then at such price as may be determined by a valuer appointed by the President for the time being of the Australian Property Institute (NSW) Division or his nominee or its then present equivalent for such purpose.

1.4. The wife will co-operate in allowing access to the home at all reasonable times to prospective purchasers and such licensed real estate agent as may have been appointed by the parties in accordance with the provisions of these orders.

1.5. The wife will maintain the home in reasonable condition and repair having regard to its present condition and state, pending completion of the sale of the home.

1.6. If Contracts for Sale of the home by private treaty have not been exchanged within 4 months from the date of these orders then the parties will cause the home to be listed for sale by way of public auction within 6 months from the date of these orders.

1.7. If listed for sale by way of public auction, a reserve price shall be fixed by agreement between the parties, and failing agreement the reserve price will be determined by a valuer appointed by the parties, or failing agreement, appointed by the President for the time being of the Australian Property Institute (NSW) Division or his nominee, or its then present equivalent, upon the written request of either party.

1.8. The husband and the wife will attend the said auction (“the first auction”) of the home and in the event that the said reserve price of the home is not reached, the parties will negotiate with any bidder present at the first auction and will accept any offer made by such bidder which is no more than 5 percent below the reserve price unless otherwise agreed by both parties. If Contracts for Sale of the home are not exchanged as aforesaid within fourteen (14) days of the first auction taking place then the husband and the wife will cause a second auction (“the second auction”) to be conducted no later than one month from the date of the first auction and for the purposes of the second auction, the reserve price will be 5 percent below the reserve price of the first auction and in the event that the said reserve price of the home is not reached, the parties will negotiate with any bidder present at the second auction and will accept any offer made by such bidder which is no more than 5 percent below the said reserve price unless otherwise agreed by both parties.

1.9. In the event that the home is not sold at either the first or second auction the husband and the wife will do all acts and things and sign all documents necessary to cause further auctions to be conducted on the same terms as referred to in paragraph 1.6 until such time as the home is sold.

1.10. In the event that the home is to be sold by auction then each of the parties will, upon demand, pay in equal shares the auction advertising expenses. In the event that either party should fail to do so, then the auction expenses shall be deducted from the defaulting party’s entitlement from the proceeds of sale of the home.

That pending settlement of the sale of the home, the wife will continue to make all repayments in respect of the mortgage secured over the home with RHG Mortgage Corporation Ltd and pay all outgoings in respect of the home as and when they fall due.

That if the wife defaults in meeting the mortgage repayments and outgoings pursuant to order 2, then those amounts shall be deducted from the wife’s share of the net proceeds of sale in order 4 and paid to the husband.

That upon completion of the sale of the home, the husband and the wife do all acts and things and sign all documents necessary to distribute the proceeds of sale as follows:

4.1. To pay all real estate agent’s costs, commissions, legal expenses and any other expenses of the sale;

4.2. To discharge the mortgage to the RHG Mortgage Corporation Ltd secured against the home;

4.3. To pay to the husband 21.792 percent of the balance;

4.4. To pay to the husband the sum of $357.50 being the wife’s share of the valuation report prepared by M Valuers; and

4.5. To pay to the wife the balance.

That the Court allocates as required by s 90MT(4) of the Family Law Act 1975, a base amount of $70,000 to the wife out of the husband’s interest in the Raeburn Superannuation Fund (“the Fund”).

In accordance with s 90MT(1)(a) of the Family Law Act 1975, the Court:

6.1. Creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

6.2. Makes a corresponding reduction in the entitlement of the husband, or such other person to whom a splittable payment may be made, would have had in the Fund, but for this order.

Whenever the Trustee of the Fund makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall do all acts and things and sign all documents as may be necessary to pay the entitlement created in order 6 of these orders in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

This order has effect from the operative time and the operative time is 4 business days after the date when the sealed copy of these orders is served on the Trustee.

That within 30 days the husband do all things and sign all documents necessary to place on the market for sale the 1991 Mercedes Benz motor vehicle registered number …, to sell it for the best price reasonably able to be obtained and to divide the net proceeds of sale between himself and the wife equally.

10.

That the parties otherwise be entitled to be the sole, legal and beneficial owners of all other items of real and personal property of whatsoever nature and kind in their respective ownership, possession and/or control as at the date of these orders including but without limiting the generality thereof monies on deposits, shareholdings, insurance policies, motor vehicles, furniture, furnishings and effects and superannuation.

11.

That in default of either or both the husband and the wife executing all documents necessary to comply with these orders the Registrars of the Family Court of Australia are appointed to execute all such documents on behalf of either of the husband and the wife and to do all things necessary to give validity and operation to the documents.

12.

That the above orders not commence operation until 14 May 2010.

13.

That both parties have leave to relist these proceedings at any time not later than 13 May 2010 for the purpose only of making further submissions in relation to the form of the orders.

14.

That all exhibits be released.

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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