Rose and Briggs - [2019] FCCA 783

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROSE & BRIGGS

[2019] FCCA 783

Catchwords:
FAMILY LAW – Application for property adjustment orders – assessment of contributions – orders made.

Legislation:

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

Cases cited:

Kowali & Kowali [1981] FamCA 70

Applicant:

MR ROSE

Respondent:

MS BRIGGS

File Number:

PAC 569 of 2016

Judgment of:

Judge Newbrun

Hearing dates:

18, 19, 20 March 2019

Date of Last Submission:

20 March 2019

Delivered at:

Parramatta

Delivered on:

29 March 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Brown of Browns the Family Lawyers

Counsel for the Respondent:

Mr Dura

Solicitors for the Respondent:

Horton Rhodes Legal

ORDERS

That within two calendar months after the date of these Orders the husband, should he wish to retain the property situate at and known as Property A, shall pay to the wife the sum of $236,697.
That in the event that the husband fails to comply with the above Order within two calendar months after the date of these Orders then the husband and wife shall do all things as may be necessary to list the Property A property for sale by auction with a real estate agent agreed and failing agreement with a real estate agent nominated by the President for the time being of the Real Estate Institute of New South Wales or his nominee.
The auction shall take place within six weeks after the date two calendar months after the date of these orders or as soon as practicable, whichever is the later.
The reserve price shall be as agreed between the parties and in default of agreement for a period in excess of fourteen (14) days at a price fixed to be a fair market value of Property A by a valuer jointly appointed by the parties or in default of agreement by them, appointed on application by either of them by the President or other senior office bearer for the time being of the New South Wales Division of the Australian Property Institute or its successors acting as an expert and not as an arbitrator.
That upon the Property A property being sold at auction the parties shall distribute the proceeds of such sale as follows:
(a)In payment of real estate agent’s commission, legal and other costs on the sale;
(b)In payment of the balance then remaining to the parties as follows:
(i)To the wife, a sum representing 55% of the said balance, plus a cash payment of $13,947;
(ii)To the husband, the balance remaining.
That subject to the above Orders, the husband shall retain all interest in and entitlement to:
(a)His superannuation entitlement with Super Fund B;
(b)All funds held by him in financial institutions;
(c)His furnishings, home contents and personalty;
(d)His boat.
That subject to the above Orders, the wife shall retain all interest in and entitlement to:
(a)The money in controlled monies account Legal First (proceeds of matrimonial home);
(b)Her superannuation entitlements;
(c)All funds held by her in financial institutions;
(d)Her furnishings, home contents, personalty…

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 Rose and Briggs

Details

AGLC: Rose and Briggs [2019] FCCA 783
Case: [2019] FCCA 783
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the matter of Rose and Briggs, Judge Newbrun of the Family Court of Australia made orders concerning the division of property between the husband and wife. The central dispute revolved around the matrimonial home, Property A, and how its ownership and value would be distributed.

The court was required to determine the terms upon which the husband could retain Property A, including the valuation and payment mechanism. In the alternative, the court needed to establish the process for the sale of Property A by auction, including the setting of a reserve price and the distribution of sale proceeds. Further issues included the division of other assets, such as superannuation entitlements, financial institution funds, and personal property, and the appointment of the Registrar to execute necessary documents.

Judge Newbrun ordered that the husband could retain Property A by paying the wife $236,697 within two months. If the husband failed to do so, the property was to be listed for sale by auction, with a real estate agent to be agreed upon or nominated. The auction was to occur within six weeks of the initial two-month period, with a reserve price to be agreed or fixed by a jointly appointed valuer, or failing that, by an expert appointed by the Australian Property Institute. Upon sale, sale costs were to be paid first, followed by the distribution of the remaining balance, with the wife receiving 55% of that balance plus $13,947, and the husband receiving the residue. The orders also specified that each party would retain their respective superannuation, financial institution funds, and personal effects, with specific provisions for the wife's controlled monies account and jewellery. The Registrar was appointed to execute any necessary documents under section 106A of the Family Law Act.

Orders

Orders of the court

That within two calendar months after the date of these Orders the husband, should he wish to retain the property situate at and known as Property A, shall pay to the wife the sum of $236,697.

That in the event that the husband fails to comply with the above Order within two calendar months after the date of these Orders then the husband and wife shall do all things as may be necessary to list the Property A property for sale by auction with a real estate agent agreed and failing agreement with a real estate agent nominated by the President for the time being of the Real Estate Institute of New South Wales or his nominee.

The auction shall take place within six weeks after the date two calendar months after the date of these orders or as soon as practicable, whichever is the later.

The reserve price shall be as agreed between the parties and in default of agreement for a period in excess of fourteen (14) days at a price fixed to be a fair market value of Property A by a valuer jointly appointed by the parties or in default of agreement by them, appointed on application by either of them by the President or other senior office bearer for the time being of the New South Wales Division of the Australian Property Institute or its successors acting as an expert and not as an arbitrator.

That upon the Property A property being sold at auction the parties shall distribute the proceeds of such sale as follows:

(a) In payment of real estate agent’s commission, legal and other costs on the sale;

(b) In payment of the balance then remaining to the parties as follows:

(i) To the wife, a sum representing 55% of the said balance, plus a cash payment of $13,947;

(ii) To the husband, the balance remaining.

That subject to the above Orders, the husband shall retain all interest in and entitlement to:

(a) His superannuation entitlement with Super Fund B;

(b) All funds held by him in financial institutions;

(d) His boat.

That subject to the above Orders, the wife shall retain all interest in and entitlement to:

(a) The money in controlled monies account Legal First (proceeds of matrimonial home);

(b) Her superannuation entitlements;

(d) Her furnishings, home contents, personalty and jewellery.

That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of said party and do all acts and things necessary to give validity to the operation of such deed or instrument.

Leave to the parties to relist the proceedings on seven days’ notice in relation to any difficulty facilitating the Court’s Orders.

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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