Robertson & Robertson - [2010] FMCAfam 1483

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROBERTSON & ROBERTSON

[2010] FMCAfam 1483

FAMILY LAW – Property settlement – undefended hearing – previous agreement reached – respondent’s obligations not fulfilled.

FAMILY LAW – Costs – unnecessary additional costs due to respondent’s failure to engage – failure of respondent to comply with previous orders of the Court.

Family Law Act 1975

Applicant:

MR ROBERTSON

Respondent:

MS ROBERTSON

File Number:

BRC 7301 of 2008

Judgment of:

Burnett FM

Hearing date:

23 November 2010

Delivered at:

Brisbane

Delivered on:

23 November 2010

REPRESENTATION

Solicitors for the Applicant:

Family Law Solutions

There was no appearance by or on behalf of the Respondent

ORDERS

That within 45 days of the date of this order, the applicant shall do all such acts and things and sign all such documents as may be required to transfer to the respondent at the expense of the respondent all of his right title and interest in and to the real property situate at and known as [Property B] in the State of Queensland (“the home”) and that the respondent shall obtain the release of the applicant from all liability pursuant to the mortgage registered on the home and indemnify the applicant for all rates, taxes and outgoings of or with respect to the home of whatsoever nature and kind.
That the respondent shall at the time of the transfer of the home, provide to the applicant a release of the applicant signed by the respondent’s parents from all liability the respondent alleges is owed by the applicant and the respondent to her parents (“the release”).
That in the event of the respondent failing to obtain the release of the applicant from all liability pursuant to the mortgage registered on the home and the release in relation to the debt alleged to be owed to the respondent’s parents then the applicant and respondent shall forthwith do all such acts and things and sign all such documents as may be required to effect a sale of the home and as by way of consequential arrangement that shall be made for the purposes of effect a sale:
(a)The listing price for the home shall be as agreed between the parties and failing agreement the average of an opinion of value obtained by the applicant and an opinion of value obtained by the respondent;
(b)The home shall be multi listed for sale by private treaty;
(c)In the event that the home has not been sold by or before a date 3 months from the date of being listed for sale then the applicant and the respondent shall make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the home upon the following terms:
(i)The auctioneer shall be as agreed between the parties and failing agreement as shall be nominated by the Chief Executive Officer of the Real Estate Institute of Queensland;
(ii)The auction shall take place within 3 months after the deadline date for…

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 Robertson & Robertson

Details

AGLC: Robertson & Robertson [2010] FMCAfam 1483
Case: [2010] FMCAfam 1483
Decision Date: 23 November 2010

CaseChat Overview and Summary

Robertson & Robertson involved a property settlement dispute between the parties following their separation. The applicant sought to enforce an agreement reached between the parties, which the respondent had failed to fulfil. The case was heard by the Family Court of Australia. The legal issues before the court were primarily concerned with the enforcement of the property settlement agreement and the respondent's failure to comply with the terms of the agreement, including providing releases from certain liabilities. The court also needed to address the costs incurred due to the respondent's non-compliance with previous orders.

The court examined the circumstances leading to the separation, the terms of the original property settlement agreement, and the actions taken by both parties post-separation. The respondent had not fulfilled their obligations under the agreement, specifically by not providing the necessary releases from liabilities. The court emphasised the importance of adhering to the terms of agreements in family law matters and noted that the respondent's failure to comply had resulted in additional costs and delays. The court ordered specific actions to be taken to finalise the property settlement, including the transfer of property or, if necessary, the sale of the property. The court also addressed the issue of costs, finding the respondent responsible for the additional costs incurred due to their failure to engage with the process.

The court issued orders directing the respondent to transfer property to the applicant, provide the necessary releases, and cooperate with the sale of the property if required. The court also appointed the Registrar of the Family Court to enforce the orders if either party failed to comply. Additionally, the court ordered the respondent to pay the applicant's costs for the application. The court concluded that the respondent's actions had led to unnecessary costs and delays, justifying the imposition of costs against the respondent.

Orders

Orders of the court

That within 45 days of the date of this order, the applicant shall do all such acts and things and sign all such documents as may be required to transfer to the respondent at the expense of the respondent all of his right title and interest in and to the real property situate at and known as [Property B] in the State of Queensland (“the home”) and that the respondent shall obtain the release of the applicant from all liability pursuant to the mortgage registered on the home and indemnify the applicant for all rates, taxes and outgoings of or with respect to the home of whatsoever nature and kind.

That the respondent shall at the time of the transfer of the home, provide to the applicant a release of the applicant signed by the respondent’s parents from all liability the respondent alleges is owed by the applicant and the respondent to her parents (“the release”).

That in the event of the respondent failing to obtain the release of the applicant from all liability pursuant to the mortgage registered on the home and the release in relation to the debt alleged to be owed to the respondent’s parents then the applicant and respondent shall forthwith do all such acts and things and sign all such documents as may be required to effect a sale of the home and as by way of consequential arrangement that shall be made for the purposes of effect a sale:

(a) The listing price for the home shall be as agreed between the parties and failing agreement the average of an opinion of value obtained by the applicant and an opinion of value obtained by the respondent;

(b) The home shall be multi listed for sale by private treaty;

(c) In the event that the home has not been sold by or before a date 3 months from the date of being listed for sale then the applicant and the respondent shall make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the home upon the following terms:

(i) The auctioneer shall be as agreed between the parties and failing agreement as shall be nominated by the Chief Executive Officer of the Real Estate Institute of Queensland;

(ii) The auction shall take place within 3 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;

(iv) The respondent shall be solely responsible for payment of all of the auction expenses payable before the home is auctioned.

That in the event that the home is not sold at auction, then the applicant and respondent shall within 7 days of the date of the auction do all such acts and things and execute all deeds, documents, instruments and writings necessary to procure a further auction upon such terms as may be agreed upon by the parties and failing agreement as shall be nominated by the Chief Executive Officer of the Real Estate Institute of Queensland.

That the respondent co-operate in every way with the Real Estate Agents and/or auctioneers in relation to the sale and auction of the home including making a key available, allowing inspection of the home at times requested by the Real Estate Agents and/or auctioneers and ensuring the home is in a neat and clean condition at the time of inspection by the prospective purchasers.

That upon completion of the sale of the home, the proceeds of sale be applied as follows:

(a) To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the home;

(b) To discharge the mortgage and all other encumbrances affecting the home;

(d) To pay the sum of $4,630.00 to the applicant in payment of costs as provided for in Order 11 hereof;

(e) To pay the balance then remaining to the respondent.

That pending the transfer to the respondent or the sale of the home the respondent shall have the sole use and occupation of the home and during such right of occupation the respondent shall make the payments on the mortgage as and when they fall due and pay all insurance premiums and council rates and water charges.

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 shall be solely entitled to the exclusion of the other to the motor vehicle presently in their possession;

(b) Each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;

(c) Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

(d) Each party 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.

That in the event that either party refuses or neglects to comply with the provisions of these orders the Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the applicant and/or the respondent and do all acts and things necessary to give validity and operation to the said orders.

10.

That all other applications be dismissed.

11.

That the respondent pay the applicant’s costs of and incidental to this application fixed in the sum of $4,630.00.

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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