SHELTON & WAKEFORD

Case [2017] FCCA 2610


FEDERAL CIRCUIT COURT OF AUSTRALIA

SHELTON & WAKEFORD [2017] FCCA 2610

Catchwords:
FAMILY LAW – Contravention of parenting orders with respect to telephone communication.

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
Bainrot and Bainrot (1976) FLC 90-003
Filipovic and Filipovic (1977) FLC 90-266
Fooks & Clark [2004] FamCA 212
Jets & Maker [2010] FamCAFC 55
O'Brien&O’Brien [1992] FamCA 52
Raider & Raider [2011] FamCA 488
Stavros and Stavros [1984] FLC 91-562
Stevenson & Hughes [1993] FamCA 14
TVT & TLM [2006] FMCAfam 20
Webber and Budd (No 2) [2011] FamCA 539
WJP & TP [2002] FMCAfam 315 (Unrep.)
Calvin & McTier [2017] FamCAFC 125
Wallis & Manning [2017] FamCAFC 14
Bevan & Bevan [2013] FamCAFC 116
Masoud & Masoud [2016] FamCAFC 24
Vass & Vass [2015] FamCAFC 51

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

  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

  1. 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.

  2. The wife be declared the sole legal and beneficial owner of the Property A property.

  3. 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

In the matter of SHELTON & WAKEFORD, Judge Harland of the Federal Circuit Court of Australia considered a contravention application concerning telephone communication and a property dispute regarding the length of the parties' relationship. The contravention application alleged multiple instances of non-compliance with parenting orders, while the property proceedings involved the division of assets, specifically a property identified as Property A.

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

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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