SS and TS - [2003] FMCAfam 478

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SS & TS

[2003] FMCAfam 478

FAMILY LAW – Property – short marriage – valuation of real estate – gifts – contributions – where parties assert payment of wedding expenses are financial contribution – the proper approach to wedding and pre paid honeymoon expenses in the majority of cases is to identify what remains of any savings and cash gifts and include this balance as an initial contribution – where husband’s family provide significant financial assistance, including cash and accommodation – where husband and his family undertake significant owner builder venture of former matrimonial home.

Applicant:

Respondent:

File No:

SYM298 of 2002

Delivered on:

5 December 2003

Delivered at:

Parramatta

Hearing dates:

30 & 31 October 2003

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr G. Roberts

Solicitors for the Applicant:

Kells The Lawyers

Solicitor Advocate for the Respondent:

Mr J David

Solicitors for the Respondent:

Hansons

ORDERS

Within ten weeks of the date of these orders the husband shall pay to the wife the sum of One hundred and nineteen thousand seven hundred and seventy dollars and forty nine cents ($119,770.49) and at the same time shall give her a discharge of the Westpac mortgage secured against the property situate at Farmborough Heights.
Simultaneously, upon compliance by the husband with Order 1, the wife shall do all acts and things and sign all documents as are necessary to transfer to him her right, title and interest in the property situate at Farmborough Heights.
In the event that the husband fails to comply with Order 1 each party shall immediately take all necessary steps and execute all necessary documents to cause the property known as and situate at Farmborough Heights ("the property") to be sold by private treaty at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and to distribute the proceeds of the said sale as follows:
(a)In payment of agents commission and advertising expenses and legal expenses of the sale;
(b)In discharge of the mortgage in favour of Westpac Bank registered over the property;
(c)78 per cent to the husband from which he shall pay the wife an adjusting amount of $31,330.49;
(d)The balance to the wife.
That in the event that the property fails to be sold by private treaty within a period of 3 months from the date Order 3 becomes operative, then each party take all necessary steps and execute all necessary documents to cause the property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and that the proceeds of the sale be distributed in accordance with Order 4 herein.
That pending the sale of the property the…

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.

Keep reading for free

Create a free CaseChat account to read SS and TS and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] FMCAfam 478
Decision Date: 5 December 2003

CaseChat Overview and Summary

The matter of SS and TS was heard in the Family Court of Australia. The dispute centred on the division of assets, specifically the property at Farmborough Heights, between the parties following their separation. The wife sought an equitable division of the property, while the husband argued for a different valuation and distribution of the asset.

The court was required to determine the fair market value of the property, the appropriate division of the asset, and the means by which the division should be executed. The court needed to consider the contributions of each party to the acquisition and maintenance of the property, as well as other relevant factors such as the needs and future prospects of the parties.

The court found that the property should be valued at the amount specified in the orders, and that the husband should pay the wife the specified sum and discharge the mortgage in her favour. If the husband failed to comply, the court ordered that the property be sold by private treaty or auction, with the proceeds distributed according to the orders. The court also ordered that the husband continue to pay certain expenses pending the sale of the property and that a Registrar be authorised to act on behalf of either party if necessary. The court dismissed all outstanding applications and ordered the return of exhibits and subpoenaed material.

Orders

Orders of the court

Within ten weeks of the date of these orders the husband shall pay to the wife the sum of One hundred and nineteen thousand seven hundred and seventy dollars and forty nine cents ($119,770.49) and at the same time shall give her a discharge of the Westpac mortgage secured against the property situate at Farmborough Heights.

Simultaneously, upon compliance by the husband with Order 1, the wife shall do all acts and things and sign all documents as are necessary to transfer to him her right, title and interest in the property situate at Farmborough Heights.

In the event that the husband fails to comply with Order 1 each party shall immediately take all necessary steps and execute all necessary documents to cause the property known as and situate at Farmborough Heights ("the property") to be sold by private treaty at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and to distribute the proceeds of the said sale as follows:

(a) In payment of agents commission and advertising expenses and legal expenses of the sale;

(b) In discharge of the mortgage in favour of Westpac Bank registered over the property;

(d) The balance to the wife.

That in the event that the property fails to be sold by private treaty within a period of 3 months from the date Order 3 becomes operative, then each party take all necessary steps and execute all necessary documents to cause the property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and that the proceeds of the sale be distributed in accordance with Order 4 herein.

That pending the sale of the property the husband continue to pay, as they fall due, all regular instalments in respect of the mortgage, council rates, water rates and household insurance in respect of the property, and shall indemnify and keep indemnified the wife in respect of any such amounts, and if any such amounts remain unpaid as at the date of sale of the property, the husband shall be solely liable for any such arrears.

That in default of either or both of the husband and the wife doing all such things and executing all such documents as may be needed to comply with these orders that a Registrar of the Wollongong Registry of the Federal Magistrates Court or such other person appointed by the court is authorised to do all such acts and things and execute all such documents on behalf of either or both of the husband and the wife.

That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.

That the solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.

All outstanding applications are dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.