Rylands and Rylands - [2013] FCCA 493

FEDERAL CIRCUIT COURT OF AUSTRALIA

RYLANDS & RYLANDS

[2013] FCCA 493

Catchwords:
FAMILY LAW – Property – interim hearing – whether to sell or retain shares – agreement to sell investment properties.

Legislation:
Family Law Act 1975, ss.75, 79, 80, 114, 117

G and T (2003) 32 Fam LR 101; (2004) FLC 93-176; [2003] FamCA 1076
Harris and Harris (1993) FLC 92-378
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395; (2003) 30 Fam LR 355; (2003) FLC 93-143
Stanford v Stanford [2012] HCA 52
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166; 241 FLR 1; (2009) 42 Fam LR 203
Wenz v Archer (2009) 40 Fam LR 212; [2008] FMCAfam 1119

Applicant:

MS RYLANDS

Respondent:

MR RYLANDS

File Number:

SYC 1170 of 2013

Judgment of:

Judge Monahan

Hearing date:

31 May 2013

Date of Last Submission:

31 May 2013

Delivered at:

Sydney

Delivered on:

27 June 2013

REPRESENTATION

Counsel for the Applicant:

Not Applicable

Solicitors for the Applicant:

Pryor Tzannes & Wallis

Counsel for the Respondent:

Mr Givney

Solicitors for the Respondent:

Vizzone Ruggero & Associates

ORDERS

Subject to paragraphs 2 and 3 herein, all interim orders remain in full force and effect.
Pursuant to paragraph 9(d) of the minute attached to the orders made on 31 May 2013 (“the Consent Minute”) the parties cause the following payments to be made from the controlled monies account:
(a)to the wife the sum of $130,000.00;
(b)to the husband the sum of $80,000.00;
with the characterisation of these payments to be a matter for determination by the Court at any final hearing or by agreement.
The husband cause the following debts to be paid by no later than the time he receives the sum referred to in paragraph 2(b) herein:
(a)Land rates  $296.89
(b)Land rates  $284.98
(c)ATO   $3,766.00
(d)Visa card   $3,487.00
(e)(omitted). credit card     $3,280.00
(f)(omitted) & Co.              $1,350.00
(g)(omitted) & Co.              $2,300.00
in addition to any amounts that may still be owing to third parties pursuant to paragraph 17 of the Consent Minute.
The following interim orders sought by the parties be otherwise dismissed:
(a)paragraphs 6 and 13 of the interim orders sought by the wife in her Initiating Application filed on 7 March 2013; and
(b)paragraphs 21 to 32 inclusive of the interim orders sought by the husband in his Response filed on 28 March 2013.

IT IS NOTED that publication of this judgment under the pseudonym Rylands & Rylands is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1170 of 2013

MS RYLANDS

Applicant

And

MR RYLANDS

Respondent

REASONS FOR JUDGMENT

Introduction

These are property and parenting proceedings between the Applicant wife, MS RYLANDS, (“the wife”) and the Respondent husband, MR RYLANDS, (“the husband”). This decision only concerns the parties competing interim proposals with respect to the property dispute between them.

Background

The parties commenced cohabitation upon their marriage on (omitted) 1994. They separated during 2010 but continued…

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 Rylands and Rylands

Details

AGLC: RYLANDS & RYLANDS [2013] FCCA 493
Case: [2013] FCCA 493
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the matter of *Rylands and Rylands*, Judge Monahan considered an application concerning the distribution of controlled monies and the payment of certain debts. The dispute arose between a husband and wife, with the court tasked with determining the characterisation and distribution of funds from a controlled monies account and the responsibility for various outstanding debts.

The court was required to determine the specific payments to be made from the controlled monies account to both the wife and the husband, and crucially, how these payments should be characterised for the purposes of a final determination or agreement. Additionally, the court had to ascertain which party was responsible for discharging a list of specified debts, including land rates, amounts owing to the ATO, and various credit card and other company debts, by a specified time.

Judge Monahan ordered that, subject to further provisions, all interim orders previously made would remain in force. The court directed that $130,000 be paid to the wife and $80,000 to the husband from the controlled monies account, with the characterisation of these sums to be determined at a later stage. The husband was also ordered to pay a series of listed debts, including land rates, ATO liabilities, and credit card balances, by the time he received his allocated sum from the controlled monies account. Certain interim orders sought by both the wife and the husband were otherwise dismissed.

Orders

Orders of the court

Subject to paragraphs 2 and 3 herein, all interim orders remain in full force and effect.

Pursuant to paragraph 9(d) of the minute attached to the orders made on 31 May 2013 (“the Consent Minute”) the parties cause the following payments to be made from the controlled monies account:

(a) to the wife the sum of $130,000.00;

(b) to the husband the sum of $80,000.00;

with the characterisation of these payments to be a matter for determination by the Court at any final hearing or by agreement.

The husband cause the following debts to be paid by no later than the time he receives the sum referred to in paragraph 2(b) herein:

(a) Land rates $296.89

(b) Land rates $284.98

(d) Visa card $3,487.00

(e) (omitted). credit card $3,280.00

(f) (omitted) & Co. $1,350.00

(g) (omitted) & Co. $2,300.00

in addition to any amounts that may still be owing to third parties pursuant to paragraph 17 of the Consent Minute.

The following interim orders sought by the parties be otherwise dismissed:

(a) paragraphs 6 and 13 of the interim orders sought by the wife in her Initiating Application filed on 7 March 2013; and

(b) paragraphs 21 to 32 inclusive of the interim orders sought by the husband in his Response filed on 28 March 2013.

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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