FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHELTON & WAKEFORD | [2017] FCCA 2610 |
| Catchwords: PROPERTY – Dispute with respect to the length of relationship. |
| Legislation: Family Law Act 1975, ss.4(a), 64D, 65N, 65P, 70NAC, 70NAE, 70NAF(1), 70NBA, 75(2), 79, 106A |
| Cases cited: Stamp & Stamp [2014] FCCA 1269 Ackersley & Rialto [2009] FamCA 817 |
| Applicant: | MR SHELTON |
| Respondent: | MS WAKEFORD |
| File Number: | MLC 7506 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 1 & 2 August 2017 |
| Date of Last Submission: | 2 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| The Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Combes |
| Solicitors for the Respondent: | Fiona R McGregor |
ORDERS
Contravention
Count 1 of the Contravention application filed on 20 January 2017 is dismissed.
Counts 2 to 6 of the Contravention application filed on 20 January 2017 are not proved as the respondent had a reasonable excuse.
Order 16 of the orders made on 22 September 2016 is discharged.
Property
That by 2 February 2019 the parties do all acts and things to cause the following to occur simultaneously:
(a)The husband do all acts and things to remove the caveat lodged over Property A in the State of Victoria (“Property A property”) at his expense;
(b)The wife pay the husband the sum of $6,000.
The wife be declared the sole legal and beneficial owner of the Property A property.
That in the event that payment made in compliance with order 4(b) then within a further 14 days the wife shall do all things necessary to cause the Property A property be sold at the earliest possible date at a price to be agreed between the parties and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and that the proceeds of sale shall be disbursed in the following order and in that priority:
(a)In payment of agents commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;
(b)In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the Victorian Division of the Australian Property Institute or his/her nominee…
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- AGLC
- SHELTON & WAKEFORD [2017] FCCA 2610
- Case
- [2017] FCCA 2610
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the respondent had contravened the parenting orders as alleged and, if so, whether they had a reasonable excuse for any contravention. Additionally, the court had to resolve the dispute concerning the length of the relationship and make orders for the division of property, including the disposition of Property A and the parties' respective superannuation and other assets.
Regarding the contravention application, the court dismissed one count and found that for the remaining counts, the respondent had a reasonable excuse, leading to the discharge of a specific order. In relation to the property dispute, the court declared the wife the sole legal and beneficial owner of Property A, subject to certain conditions. These conditions included the husband removing a caveat at his expense and the wife paying him $6,000. Further orders detailed the process for the sale of Property A, including the agreement on a sale price, the disbursement of sale proceeds with a specific percentage allocated to the husband, and the division of remaining assets and liabilities between the parties. The court also made orders severing any joint tenancies and providing for the Registrar to execute documents if a party failed to do so.
Orders
Orders of the court
Contravention
1.
Count 1 of the Contravention application filed on 20 January 2017 is dismissed.
2.
Counts 2 to 6 of the Contravention application filed on 20 January 2017 are not proved as the respondent had a reasonable excuse.
3.
Order 16 of the orders made on 22 September 2016 is discharged.
Property
4.
That by 2 February 2019 the parties do all acts and things to cause the following to occur simultaneously:
(a) The husband do all acts and things to remove the caveat lodged over Property A in the State of Victoria (“Property A property”) at his expense;
(b) The wife pay the husband the sum of $6,000.
5.
The wife be declared the sole legal and beneficial owner of the Property A property.
6.
That in the event that payment made in compliance with order 4(b) then within a further 14 days the wife shall do all things necessary to cause the Property A property be sold at the earliest possible date at a price to be agreed between the parties and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and that the proceeds of sale shall be disbursed in the following order and in that priority:
(a) In payment of agents commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;
(b) In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the Victorian Division of the Australian Property Institute or his/her nominee (if any);
(c) Discharge of all mortgages secured on title;
(d) The net balance then to be divided as to 1.5% to the husband; and
(e) Payment of the balance to the wife.
7.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband/Wife).
(b) Monies standing to the credit of the parties in any joint bank account are to become the property of the Husband/Wife.
(c) Insurance policies remain the sole property of the owner/beneficiary named thereon/in.
(d) 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.
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
8.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act 1975 that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
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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