Stewart and Stewart - [2008] FMCAfam 22

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEWART & STEWART

[2008] FMCAfam 22

FAMILY LAW – Property – matrimonial home main asset of parties – consideration of s.75(2) factors.

Family Law Act 1975, s.75(2)

Bonnici v Bonnici (1992) FLC 92-272

Applicant:

MR STEWART

Respondent:

MS STEWART

File number:

MLM 9478 of 2006

Judgment of:

Burchardt FM

Hearing date:

6 December 2007

Date of last submission:

6 December 2007

Delivered at:

Melbourne

Delivered on:

8 February 2008

REPRESENTATION

Counsel for the Applicant:

Ms R. Stoikovska

Solicitor for the Applicant:

McCluskys Lawyers

Counsel for the Respondent:

Mr P.D. Sweeney

Solicitor for the Respondent:

Kliger Partners

ORDERS

That forthwith the wife sign all documents to enable the property at B and being the land described in Certificate of Title Volume 7xxx folio 160 ("the B property") be sold by way of public auction to take place in March 2008 by real estate agents Hocking Stuart. That the reserve be nominated by the parties within fourteen days of the date of these Orders and failing agreement to be set by the agent. The proceeds of sale of the property be applied as follows:
(a)Firstly all costs, commissions and expenses of the sale with Kliger Partners in conjunction with McCluskys Lawyers;
(b)Secondly to discharge the mortgage number Rxxxxx in favour of the National Australia Bank ("the mortgage") and any other encumbrance affecting the B property with the wife being responsible for the council and water rates for the real property and the utilities on the real property;
(c)Thirdly the husbands will provide at his cost and expense including the registration fees in order to lodge withdrawal of caveat for caveat number AE208418Y registered on 27 February 2006 on behalf of the husband by Joannidis & Associates;
(d)Fourthly the balance then remaining be divided in the proportions of:
(i) 57.5% to the wife;
(ii) 42.5% to the husband.
(e)That the husband shall be totally responsible for the $4,000.00 due to W College.
That in the event that the real property not sell at the scheduled public auction then the real property remain on the market for a period of a further ten weeks and thereafter the parties will arrange to schedule a second auction on the same terms and conditions as set out in paragraph 1 herein.
That the wife retain to the exclusion of the husband the 2004 Toyota Echo motor vehicle and that the wife be responsible for and indemnify the husband in relation to all moneys owed by her to Toyota Finance in relation to the motor vehicle being retained by her.
That the wife retain her interest in WG business.
The husband retain the amount he has received for his shareholding in ASR Group.
The husband retain his 1999 Toyota Sedan motor vehicle and indemnify the wife in relation to all moneys outstanding to Toyota finance in relation to the said motor vehicle owned by him.
That unless otherwise specified in these orders and except for the purposes of enforcing the payment…

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 Stewart and Stewart

Details

AGLC: Stewart and Stewart [2008] FMCAfam 22
Case: [2008] FMCAfam 22
Decision Date: 8 February 2008

CaseChat Overview and Summary

In the matter of Stewart and Stewart, the Family Court of Australia was tasked with resolving the financial disputes between the parties. The husband and wife were in the midst of a property settlement following the dissolution of their marriage. The primary issues before the court involved the division of their assets, including a property at B, a Toyota Echo motor vehicle, a Toyota Sedan motor vehicle, shares in the ASR Group, and a business interest. The court was also required to decide on the allocation of debts, particularly a $4,000.00 debt owed to W College.

The court carefully considered the evidence and submissions from both parties, taking into account their respective financial positions and needs. It was determined that the property at B should be sold by public auction, with the proceeds divided between the parties. The motor vehicle, business interest, and shares were to be allocated to the respective parties. The court also directed the division of other personal items and resolved the outstanding debts. The decision provided for the sale of the property, with specific instructions regarding the reserve price, the handling of the proceeds, and the scheduling of a second auction if necessary. The motor vehicle and the business interest were retained by the wife and husband, respectively, with corresponding liabilities for related debts. The court further addressed the division of other assets and liabilities, ensuring that the financial relationships between the parties were finally determined. The orders provided clarity and finality to the financial aspects of the property settlement, aiming to avoid further disputes between the parties.

Orders

Orders of the court

That forthwith the wife sign all documents to enable the property at B and being the land described in Certificate of Title Volume 7xxx folio 160 ("the B property") be sold by way of public auction to take place in March 2008 by real estate agents Hocking Stuart. That the reserve be nominated by the parties within fourteen days of the date of these Orders and failing agreement to be set by the agent. The proceeds of sale of the property be applied as follows:

(a) Firstly all costs, commissions and expenses of the sale with Kliger Partners in conjunction with McCluskys Lawyers;

(b) Secondly to discharge the mortgage number Rxxxxx in favour of the National Australia Bank ("the mortgage") and any other encumbrance affecting the B property with the wife being responsible for the council and water rates for the real property and the utilities on the real property;

(c) Thirdly the husbands will provide at his cost and expense including the registration fees in order to lodge withdrawal of caveat for caveat number AE208418Y registered on 27 February 2006 on behalf of the husband by Joannidis & Associates;

(d) Fourthly the balance then remaining be divided in the proportions of:

(i) 57.5% to the wife;

(ii) 42.5% to the husband.

(e) That the husband shall be totally responsible for the $4,000.00 due to W College.

That in the event that the real property not sell at the scheduled public auction then the real property remain on the market for a period of a further ten weeks and thereafter the parties will arrange to schedule a second auction on the same terms and conditions as set out in paragraph 1 herein.

That the wife retain to the exclusion of the husband the 2004 Toyota Echo motor vehicle and that the wife be responsible for and indemnify the husband in relation to all moneys owed by her to Toyota Finance in relation to the motor vehicle being retained by her.

That the wife retain her interest in WG business.

The husband retain the amount he has received for his shareholding in ASR Group.

The husband retain his 1999 Toyota Sedan motor vehicle and indemnify the wife in relation to all moneys outstanding to Toyota finance in relation to the said motor vehicle owned by him.

That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date. The furniture, personal possessions and like chattels in the B property are considered to be in the possession of the wife save and except for the art works which will be divided as set out in Schedule A attached hereto;

(b) money standing to the credit of the parties in any joint bank account is to become the property of the wife;

(c) each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

(d) all insurance policies to become the sole property of the owner named thereon;

(e) 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;

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

That the Application of the husband filed 8 November 2006 and the wife's Response filed 15 March 2007 and the wife's amended Response filed 13 September 2007 be otherwise dismissed.

That pursuant to Rule 19.50 of the Family Law Rules it was reasonable to brief Counsel.

10.

That pursuant to Rule 19.51 of the Family Law Rules it was reasonable for solicitor appearing as Counsel on this day.

THE COURT NOTES

11.

That the parties intend these Orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings by them.

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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