Sterling and Sterling - [2008] FamCA 119

FAMILY COURT OF AUSTRALIA

STERLING & STERLING AND ORS

[2008] FamCA 119

FAMILY LAW – PROPERTY – Injunctions – Interim

Family Law Act 1975 (Cth)

In the Marriage of Burridge (1980) 6 Fam LR 513;FLC 90–90
In the Marriage of Harris (1993) 16 Fam LR 579 at 586; FLC 92–378; 113 FLR 472 Valceski v Valceski (2007) 36 Fam LR 620
Hunt v Hunt and Others (2006) 36 Fam LR 64;

APPLICANT:

Mrs Sterling

1^st RESPONDENT:

Mr Sterling

2^ndRESPONDENT:

Mr Watson

3^rd RESPONDENT:

Ms Kelly

4^th RESPONDENT:

Mr Border

5^th RESPONDENT:

Mrs Border

FILE NUMBER:

SYC

738

2007

DATE DELIVERED:

29 February 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATE:

26 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson, SC

SOLICITOR FOR THE APPLICANT:

Anne Einfeld

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Connor

SOLICITOR FOR THE 1^ST RESPONDENT:

The Argyle Partnership

COUNSEL FOR THE 2^{nd ,}3^rd,

4^thAND 5^th RESPONDENTS:

Mr Richardson, SC

SOLICITOR FOR THE 2^{nd ,}3^rd,

4^thAND 5^th RESPONDENTS:

Anne Einfeld

Orders

Within 48 hours of the wife having produced to the solicitors for the husband evidence of approval of an intended financier whereby, subject to the transfer by the husband of his interest in the B property to the wife, such financier will refinance the existing mortgage then the husband shall by way of partial property settlement, sign all documents necessary to transfer and assign all of his right, title and interest in the B property to the wife.

In the event that the husband refuses or neglects to sign (within 2 days of any time as specified in these orders) any documents necessary to effect the terms of these Orders, the Registrar or a Deputy Registrar of the Family Court of Australia is hereby appointed pursuant to s 106A of the Family Law Act 1975 to execute all deeds and documents on behalf of the husband.

That pending further order and except as provided for by these orders the husband is restrained from transferring, mortgaging, encumbering or in any way dealing with the B property.

The Court noted that these order are made on the undertaking of the wife contained in paragraph 5 of her affidavit sworn 13 February 2008.

The wife is to notify the husband through his solicitor forthwith upon the successful refinance of the B property and provide that solicitor with a copy of the signed finance agreement as soon as practicable thereafter.

Leave is granted to any party to restore the proceedings to the list on giving 48 hours notice to the other parties and the Court.

IT IS NOTED that publication of this judgment under the pseudonym Sterling & Sterling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 738 of 2007

MRS STERLING

Applicant

And

MR STERLING

Respondent

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 Sterling and Sterling

Details

AGLC: Sterling and Sterling [2008] FamCA 119
Case: [2008] FamCA 119
Decision Date: 29 February 2008

CaseChat Overview and Summary

This matter concerned an application before Judicial Registrar Loughnan in the Family Court of Australia. The dispute involved the parties' property settlement, specifically concerning the B property. The orders sought to facilitate the transfer of the husband's interest in the B property to the wife, contingent upon the wife securing refinancing for the existing mortgage.

The court was required to determine the terms of the property settlement concerning the B property, including the mechanism for transferring the husband's interest and the consequences of non-compliance. The court also considered the need for interim orders to preserve the status quo of the B property pending the finalisation of the property settlement.

Judicial Registrar Loughnan ordered that the husband was to transfer his interest in the B property to the wife within 48 hours of the wife providing evidence of an approved financier who would refinance the existing mortgage. The order stipulated that if the husband failed to sign the necessary documents within two days of being requested, a Registrar or Deputy Registrar of the Family Court was appointed to execute them on his behalf. Furthermore, the husband was restrained from dealing with the B property pending further order, except as provided by the orders. These orders were made on the undertaking of the wife as detailed in her affidavit. The wife was also ordered to notify the husband's solicitor upon successful refinancing and provide a copy of the finance agreement. Leave was granted to any party to restore the proceedings to the list on 48 hours' notice.

Orders

Orders of the court

Within 48 hours of the wife having produced to the solicitors for the husband evidence of approval of an intended financier whereby, subject to the transfer by the husband of his interest in the B property to the wife, such financier will refinance the existing mortgage then the husband shall by way of partial property settlement, sign all documents necessary to transfer and assign all of his right, title and interest in the B property to the wife.

In the event that the husband refuses or neglects to sign (within 2 days of any time as specified in these orders) any documents necessary to effect the terms of these Orders, the Registrar or a Deputy Registrar of the Family Court of Australia is hereby appointed pursuant to s 106A of the Family Law Act 1975 to execute all deeds and documents on behalf of the husband.

That pending further order and except as provided for by these orders the husband is restrained from transferring, mortgaging, encumbering or in any way dealing with the B property.

The Court noted that these order are made on the undertaking of the wife contained in paragraph 5 of her affidavit sworn 13 February 2008.

The wife is to notify the husband through his solicitor forthwith upon the successful refinance of the B property and provide that solicitor with a copy of the signed finance agreement as soon as practicable thereafter.

Leave is granted to any party to restore the proceedings to the list on giving 48 hours notice to the other parties and the Court.

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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