S and S - [2002] FMCAfam 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2002] FMCAfam 295

FAMILY LAW – Property – superannuation – application to adjourn final hearing – interim orders – necessity to ensure orders are interim if an adjournment is granted – s.79(6) Family Law Act 1975 interim property orders made must be appropriate – s.79(5) Family Law Act 1975 nature of adjournment discussed – evidence of value of superannuation at further hearing must comply with Family Law (Superannuation) Regulations 2001 – findings supporting interim orders may differ on final determination.

Family Law Act 1975, s.75, s.79, s.79(2), s.79(4)(a)–(c) and (f)–g), s.79(5), s.79(6), s.79(7), s.90 and s.117

Family Law Legislation Amendment (Superannuation) Act 2001
Family Law (Superannuation) Regulations 2001
Child Support (Assessment) Act 1989

Lee Steere and Lee Steere (1985) FLC 91–626 applied
Ferraro and Ferraro (1993) FLC 92–335 applied
Clauson and Clauson (1995) FLC 92–595 applied
Russell v Russell (1999) FLC 92–877 applied
Van Essen and Van Essen (2000) FLC 93–028 distinguished
Versace and Armstrong [2001] FMCAfam 231 followed
Taylor & Taylor [2001] FamCA 866 followed
Carson and Carson (1999) FLC 92–835 followed
Burridge (1980) FLC 90–902 discussed
Harris v Harris (1993) FLC 92–378 discussed
Bassi and KD Sales Force Specialists Pty Ltd (1993) FLC 92–378 discussed
Bailey (1978) 4 FLR 86 referred to
Pierce v Pierce (1999) FLC 92–844 referred to

Applicant:

W J S

Respondent:

M S

File No:

PAM 269 of 2002

Delivered on:

12 September 2002

Delivered at:

Parramatta

Hearing Date:

30 July 2002

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr W Moss

Solicitors for the Applicant:

DGB Lawyers

Counsel for the Respondent:

Mr Wilson

Solicitors for the Respondent:

A R Yates & Co
Solicitors

ORDERS

Pursuant to s79(5) that these property proceedings are adjourned part heard for further mention on 31 January 2003 at 9.30 am.

IT IS ORDERED PURSUANT TO S.79(6) AND PENDING FURTHER ORDER:

That the husband pay to the wife the sum of $124,571 by way of interim property settlement within forty-two (42) days of the date of these orders.
Simultaneously with settlement pursuant to O 2 of these orders the husband shall give the wife an indemnity from the Westpac mortgagee releasing the wife from any liability pursuant to the mortgage. In the alternative a discharge of the Westpac mortgage shall be provided.
Upon compliance with O 2 and 3 of these orders the wife shall simultaneously transfer to the husband her interest in the property [at] Woonona in the State of New South Wales.
In the event that the husband fails to comply with O 2 or 3 above, that the parties forthwith do all such things to list the property situate [at] Woonona in the State of New South Wales for sale by private treaty with a real estate agent at a price to be agreed upon between the parties and failing agreement to be determined by the president of the Real Estate Institute of New South Wales or his nominee.
That the proceeds of sale pursuant…

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.

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Details

AGLC: S and S [2002] FMCAfam 295
Case: [2002] FMCAfam 295
Decision Date: 12 September 2002

CaseChat Overview and Summary

The parties to this case, S and S, were involved in a property dispute which was heard in the relevant state court. The wife sought an interim property settlement and various other orders in relation to their jointly owned property at Woonona, New South Wales. The husband was ordered to make a payment of $124,571 to the wife within forty-two days, and to provide an indemnity or discharge of the Westpac mortgage. If the husband failed to comply with these orders, the property was to be listed for sale by private treaty, with the proceeds to be disbursed in a specified order. The wife was also ordered to file and serve an amended response within twenty-one days.

The legal issues before the court included the determination of an appropriate interim property settlement, the allocation of responsibility for the Westpac mortgage, and the division of other property and chattels. The court had to balance the respective entitlements and liabilities of the parties, and make orders that were fair and just in the circumstances.

In reaching its decision, the court considered the relevant statutory provisions and case law, as well as the evidence and submissions of the parties. The court found that the wife was entitled to an interim property settlement of $124,571, and that the husband should provide an indemnity or discharge of the Westpac mortgage. The court also made orders in relation to the division of other property and chattels, and the listing of the Woonona property for sale if the husband failed to comply with the other orders.

The final orders of the court included the adjournment of the property proceedings, the payment of the interim property settlement by the husband, the provision of an indemnity or discharge of the Westpac mortgage, the transfer of the wife's interest in the Woonona property to the husband upon compliance with certain conditions, and the listing of the property for sale if the husband failed to comply with the other orders. The court also made orders in relation to the division of other property and chattels, and the filing and serving of an amended response by the wife.

Orders

Orders of the court

Pursuant to s79(5) that these property proceedings are adjourned part heard for further mention on 31 January 2003 at 9.30 am.

IT IS ORDERED PURSUANT TO S.79(6) AND PENDING FURTHER ORDER:

That the husband pay to the wife the sum of $124,571 by way of interim property settlement within forty-two (42) days of the date of these orders.

Simultaneously with settlement pursuant to O 2 of these orders the husband shall give the wife an indemnity from the Westpac mortgagee releasing the wife from any liability pursuant to the mortgage. In the alternative a discharge of the Westpac mortgage shall be provided.

Upon compliance with O 2 and 3 of these orders the wife shall simultaneously transfer to the husband her interest in the property [at] Woonona in the State of New South Wales.

In the event that the husband fails to comply with O 2 or 3 above, that the parties forthwith do all such things to list the property situate [at] Woonona in the State of New South Wales for sale by private treaty with a real estate agent at a price to be agreed upon between the parties and failing agreement to be determined by the president of the Real Estate Institute of New South Wales or his nominee.

That the proceeds of sale pursuant to O 5 above be disbursed as follows:

a) Firstly, in payment of the costs of sale including the real estate agent’s fees and legal fees;

b) To discharge the mortgage to the Westpac;

c) In payment of any outstanding rates and charges;

d) In payment of $124,571 to the wife;

e) The balance to the husband.

That unless otherwise specified in these orders:

1. Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies (but not superannuation entitlements) are deemed to be in the possession of the beneficiary thereof.

2. 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 the respondent wife file and serve an amended response within twenty-one (21)days.

Pursuant to r15.1 of the

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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