SANDERS & SANDERS - [2010] FMCAfam 1289

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANDERS & SANDERS

[2010] FMCAfam 1289

FAMILY LAW – Property – lengthy marriage – substantial financial assistance from husband’s parents throughout parties’ marriage – recoverable debts versus contributions – allegations of waste cf imprudent decisions.

Family Law Act 1975, ss.75(2), 79(4)
Federal Magistrates Court Rules 2001, Parts 14 & 24; Rule 24.03

AB v GB (No 2) (2006) 34 Fam LR 82
Bremner & Bremner (1995) FLC ¶92-560
Clives v Clives (2008) 40 Fam LR 273
In the Marriage of Chang & Su (2002) 29 Fam LR 406
C v C (2005) FLC ¶93-220
Ferraro & Ferraro (1993) FLC ¶92-335
In the Marriage of Gosper (1987) 90 FLR 1; (1987) 11 Fam LR 601; (1987) FLC ¶91-818
Gould & Gould (2007) FLC ¶93-333
In the Marriage of Kessey (1994) 18 Fam LR 149; (1994) FLC ¶92-495
Kowaliw & Kowaliw (1981) FLC ¶91-092
AJO v GRO (2005) 191 FLR 317; (2005) 33 Fam LR 134; (2005) FLC ¶93-218
In the Marriage of Pierce (1998) 24 Fam LR 377
Poulos v Svoboda (2005) 33 Fam LR 458

Applicant:

MS SANDERS

Respondent:

MR SANDERS

File Number:

CAC 2469 of 2007

Judgment of:

Neville FM

Hearing date:

5 May 2010

Date of Last Submission:

26 May 2010

Delivered at:

Canberra

Delivered on:

26 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr T Tockar

Solicitors for the Applicant:

Dobinson Davey Clifford Simpson

Counsel for the Respondent:

Ms A Tonkin

Solicitors for the Respondent:

Barker & Barker

ORDERS

Within 60 days of the date of these Orders, the Husband pay the Wife the sum of $211,333.
Save for the property known as [L], the Wife retain all the assets in her possession or control, and that she be responsible for her own liabilities.
The Wife assign and transfer to the Husband all her right, title and interest in the partnership known as [Mr & Ms Sanders].
The Husband retain all the assets in his possession or control, including the items at [L] and be responsible for his own liabilities (including any alleged loan or loans from his parents or the company).
In the event of the Husband, within 60 days of Orders being made herein, paying to the Wife the sum of $211,333, the Wife do all things necessary to transfer to the Husband all her right, title and interest in the property known as [L].
In the event of the aforesaid payment not being made by the Husband to the Wife, then the parties do all things necessary to sell [L] and from the net sale proceeds, the Wife be paid a cash sum that will result in her having 41% of the net asset pool, and the Husband to retain the balance.
From the date of these orders, the Husband is solely liable for the following outgoings on the property known as [L]:
(a)all rates, water and sewerage expenses;
(b)any land lax;
(c)the premiums for the continuation of current insurance policies; and
(d)all mortgage…

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 SANDERS & SANDERS

Details

AGLC: SANDERS & SANDERS [2010] FMCAfam 1289
Case: [2010] FMCAfam 1289
Decision Date: 26 November 2010

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Sanders & Sanders was heard and determined. The dispute between the parties, Mr. and Mrs. Sanders, involved the division of their assets and liabilities following their separation. The court was tasked with determining the equitable distribution of the couple's property and debts, as well as making orders regarding the management of their shared assets.

The legal issues before the court included the valuation and division of the matrimonial home, the allocation of personal property, and the assignment of business interests. The court had to consider the contributions of each party to the acquisition and preservation of their assets, as well as the future needs and circumstances of both parties. The court also had to decide whether to order the sale of the matrimonial home or to make other arrangements for its management.

In its decision, the court determined that the Wife should receive a lump sum payment of $211,333 from the Husband within 60 days. The Wife was to retain all assets in her possession or control, with the exception of the partnership interest in the business known as [Mr & Ms Sanders], which she was to assign to the Husband. The Husband was to retain all assets in his possession or control, including the matrimonial home, and be responsible for his own liabilities. If the Husband failed to make the lump sum payment, the court ordered that the matrimonial home be sold, with the proceeds to be divided between the parties according to their respective shares of the net asset pool. The court also made detailed orders regarding the management and outgoings of the matrimonial home, as well as the division of personal property and business interests. The parties were given liberty to apply for further orders and were required to execute any necessary deeds or documents to give effect to the court's orders.

Orders

Orders of the court

Within 60 days of the date of these Orders, the Husband pay the Wife the sum of $211,333.

Save for the property known as [L], the Wife retain all the assets in her possession or control, and that she be responsible for her own liabilities.

The Wife assign and transfer to the Husband all her right, title and interest in the partnership known as [Mr & Ms Sanders].

The Husband retain all the assets in his possession or control, including the items at [L] and be responsible for his own liabilities (including any alleged loan or loans from his parents or the company).

In the event of the Husband, within 60 days of Orders being made herein, paying to the Wife the sum of $211,333, the Wife do all things necessary to transfer to the Husband all her right, title and interest in the property known as [L].

In the event of the aforesaid payment not being made by the Husband to the Wife, then the parties do all things necessary to sell [L] and from the net sale proceeds, the Wife be paid a cash sum that will result in her having 41% of the net asset pool, and the Husband to retain the balance.

From the date of these orders, the Husband is solely liable for the following outgoings on the property known as [L]:

(a) all rates, water and sewerage expenses;

(b) any land lax;

(d) all mortgage payments, as and when they fall due and any and or all arrears.

In the event that the Husband fails to comply with Order (1) herein, the Husband and the Wife do all acts and sign all such documents as may be required to effect a sale of the property located at [L] (“the sale”) and:

(a) The property shall be listed for private sale with a real estate agent as agreed between the parties.

(b) The listing price for the property shall be as agreed between the parties and if there is no agreement the listing price shall be recommended by the real estate agent appointed by the parties.

(i) first, to pay all costs, commissions and expenses of the sale;

(ii) second, to discharge the mortgage encumbering the property;

(iii) third, an amount paid to the Wife that results in her having 41% of the net asset pool, save that the value of [L] shall be determined by the value of the net proceeds of sale and interest payable on the amount to the Wife as calculated in accordance with the Family Law Rules; and

(iv) fourth, the balance to be paid to the Husband less any arrears of mortgage as at the date of settlement.

In the event the property has not been sold within ninety (90) days of the date of these Orders then the Husband and the Wife shall make arrangements and do all such acts and sign all such documents and equally pay all moneys necessary to procure a sale by public auction on the following terms:

(a) the auctioneer shall be as agreed between the parties and failing agreement as recommended by the real estate agent;

(b) the auction shall take place within 60 days of the date this clause comes into effect.

(d) upon completion of the sale, the proceeds of the sale be applied in the following order:

(i) first, to pay all costs, commissions and expenses of the sale;

(ii) second, to discharge the mortgage encumbering the property;

(iv) fourth, the balance to be paid to the Husband less any arrears of mortgage as at the date of settlement.

10.

Unless otherwise provided for by these orders and save for the purpose of enforcing any monies under these orders, the Wife is entitled to be the sole legal and beneficial owner of all property in her possession and/or control including but not limited to:-

(a) the household contents and personal items in her possession;

(b) any monies standing to the credit of the Wife in her sole name in any bank or savings or other account;

(d) the Wife’s superannuation entitlements; and

(e) the Wife’s motor vehicle

Free from any interest of the Husband and the Wife shall indemnify the husband in relation to any and all debts attached thereto.

11.

Unless otherwise provided for by these orders and save for the purpose of enforcing any monies under these orders, the Husband is entitled to be the sole legal and beneficial owner of all property in his possession and/or control including but not limited to:-

(a) the household contents and personal items in his possession;

(b) any monies standing to the credit of the Husband in his sole name in any bank or savings or other account;

(d) the Husband’s superannuation entitlements; and

(e) the Husband’s motor vehicle

Free from any interest of the wife and the husband shall indemnify the wife in relation to any and all debts attached thereto.

12.

The parties shall have liberty to apply in relation to the implementation of these orders.

13.

The parties shall do all acts and things and sign all documents necessary to give effect to these orders.

14.

In the event that either party refuses to execute a Deed or instrument necessary to give effect to these orders, the Registrar or Deputy Registrar of the Family Court of Australia is appointed pursuant to Section 106A to execute all Deeds and documents in the name of the parties and do all acts and things necessary to give validity and operation to the Deed or instrument.

15.

Unless an Application is made within 14 days of the date of these Orders, each party is to bear their own costs.

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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