SHARPE & SHARPE - [2010] FamCA 250

FAMILY COURT OF AUSTRALIA

SHARPE & SHARPE

[2010] FamCA 250

FAMILY LAW – PROPERTY – Childless marriage of medium duration – Contributions

Family Law Act 1975 (Cth)

Biltoft & Biltoft (1995) FLC 92-614
Blanks & Blanks [2006] FamCA 354
Bushby & Bushby (1988) FLC 91-919
Chorn & Hopkins (2004) FLC 93-204
Collins& Collins (1990) FLC 92-149
Farmer and Bramley (2000) FLC 93-060; 27 Fam LR 316
GBT & BJT [2005] FamCA 683
Harrington & Harrington (2007) FLC 93-317
Kennon v Kennon (1997) FLC 92-75
McMahon & McMahon (1995) FLC 92-606
P & P [2002] FamCA 1006
Rosati v Rosati (1998) FLC 92-804

APPLICANT:

Ms Sharpe

RESPONDENT:

Mr Sharpe

FILE NUMBER:

SYF

3826

2006

DATE DELIVERED:

26 March 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

24 - 26 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O'Gorman

SOLICITOR FOR THE APPLICANT:

David H. Cohen & Co

COUNSEL FOR THE RESPONDENT:

Mr Richardson, SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

Pursuant to s 79 Family Law Act, an order be made in the terms of paragraphs 2 to 10 below.
Within 60 days of the date of these Orders, the husband pay to the wife an amount of $287,816.00.
Within 60 days the husband remove the Bose audio system from his business premises and deliver it to the wife together with a used fishing rod with pink line, the wife’s university text books and jackets.
Except as any paragraphs of this Order provide to the contrary, as against the wife, the husband is solely entitled to and the wife has no interest in any assets of whatsoever nature and kind presently in the name, ownership or possession of the husband.
Except as any paragraphs of this Order provide to the contrary, as against the husband, the wife is solely entitled to and the husband has no interest in any assets of whatsoever nature and kind presently in the name, ownership or possession of the wife.
Except as any paragraphs of this Order provide to the contrary, each of the husband and the wife release each other from all debts owing from one to the other.
Except as any paragraphs of this Order provide to the contrary, the husband shall indemnify the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to any liability in the name of the husband.
Except as any paragraphs of this Order provide to the contrary, the wife shall indemnify the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to any liability in the name of the wife.
In the event the husband fails to make the payment referred to in paragraph 2, he will do all things and sign all necessary documents to cause S Construction Pty Limited and E Pty Limited (“the companies”) to sell … (“the P property”) and to…

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 SHARPE & SHARPE

Details

AGLC: SHARPE & SHARPE [2010] FamCA 250
Case: [2010] FamCA 250
Decision Date: 26 March 2010

CaseChat Overview and Summary

Watts J of the Family Court of Australia made orders concerning the property settlement between the husband and wife in the matter of *Sharpe & Sharpe*. The dispute concerned the division of assets and liabilities between the parties.

The court was required to determine the appropriate property settlement orders pursuant to section 79 of the *Family Law Act 1975* (Cth). This involved determining the entitlements of each party to various assets and liabilities, including a monetary payment from the husband to the wife, the transfer of specific personal property, and the allocation of responsibility for existing debts and potential future claims.

The court ordered the husband to pay the wife a sum of $287,816.00 within 60 days. Additionally, the husband was directed to deliver to the wife a Bose audio system, a used fishing rod with pink line, and her university textbooks and jackets. The orders stipulated that, save for the specific provisions made, each party was solely entitled to their respective assets and released each other from all debts owed between them. The husband was to indemnify the wife against any liabilities in his name, and the wife was to indemnify the husband against any liabilities in her name. Provisions were also made for the sale of property by associated companies should the husband fail to make the ordered payment, with the proceeds to be distributed accordingly. The Registrar was appointed to execute documents if either party refused to do so.

Orders

Orders of the court

Pursuant to s 79 Family Law Act, an order be made in the terms of paragraphs 2 to 10 below.

Within 60 days of the date of these Orders, the husband pay to the wife an amount of $287,816.00.

Within 60 days the husband remove the Bose audio system from his business premises and deliver it to the wife together with a used fishing rod with pink line, the wife’s university text books and jackets.

Except as any paragraphs of this Order provide to the contrary, as against the wife, the husband is solely entitled to and the wife has no interest in any assets of whatsoever nature and kind presently in the name, ownership or possession of the husband.

Except as any paragraphs of this Order provide to the contrary, as against the husband, the wife is solely entitled to and the husband has no interest in any assets of whatsoever nature and kind presently in the name, ownership or possession of the wife.

Except as any paragraphs of this Order provide to the contrary, each of the husband and the wife release each other from all debts owing from one to the other.

Except as any paragraphs of this Order provide to the contrary, the husband shall indemnify the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to any liability in the name of the husband.

Except as any paragraphs of this Order provide to the contrary, the wife shall indemnify the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to any liability in the name of the wife.

In the event the husband fails to make the payment referred to in paragraph 2, he will do all things and sign all necessary documents to cause S Construction Pty Limited and E Pty Limited (“the companies”) to sell … (“the P property”) and to distribute the net proceeds of sale as follows:-

9.1. Payment of sale costs;

9.2. Discharge of any encumbrance on the property;

9.3. Payment to the wife of the sum referred to in paragraph 2 together with any interest in accordance with the Family Law Rules; and

9.4. Balance to the company.

10.

Any prior order in relation to the payment of valuation fees by the wife is discharged.

11.

Either party have liberty on 7 days notice to make an application in relation to the implementation of this order.

12.

If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to affect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

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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