Sullivan and Sullivan - [2010] FMCAfam 91

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SULLIVAN & SULLIVAN

[2010] FMCAfam 91

FAMILY LAW – Property – contributions – section 75(2) and related factors – gifts – allegations of improper financial conduct – dispute as to date of separation.

Family Law Act 1975, ss.49(2), 75(2), 79(1), 79(2), 79(4)

In the Marriage ofHickey (2003) 30 Fam LR 355; (2003) FLC 93-143
In the Marriage of Kessey (1994) 18 Fam LR 149; (1994) FLC 92-495
In the Marriage of Pavey (1976) 1 Fam LR 11,358; (1976) FLC 90-051
In the Marriage of Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844
Young, L. & Monahan, G. (2009) Family Law in Australia (7th edition), Chatswood, New South Wales: LexisNexis Butterworths

Applicant:

MR SULLIVAN

Respondent:

MS SULLIVAN

File Number:

MLC 11448 of 2008

Judgment of:

Monahan FM

Hearing date:

22 July 2009

Date of Last Submission:

6 October 2009

Delivered at:

Melbourne

Delivered on:

16 February 2010

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska

Solicitors for the Applicant:

Pearsons Barristers & Solictors

Counsel for the Respondent:

Mr P. Testart

Solicitors for the Respondent:

Mcnab Mcnab & Starke

ORDERS

That subject to any agreement between the parties to the contrary, the parties do all acts and execute all documents necessary to forthwith list for sale by private treaty the former matrimonial home situate and known as Property D in the State of Victoria (“the former matrimonial home”) at a reserve price agreed between the parties or failing agreement within thirty (30) days at a price fixed by the president for the time being of the Real Estate Institute of Victoria and upon sale to distribute the proceeds of sale as follows:
(a)In payment of real estate agents’ commission on the sale;
(b)In payment of proper legal costs and disbursements of and incidental to the sale; and
(c)In payment of the balance remaining to the wife 50% and to the husband 50%.
That in the event that contracts of sale of the former matrimonial home by private treaty have not been exchanged within six (6) months after the former matrimonial home is listed for sale or within such further time that the parties may agree in writing, then the parties shall forthwith upon expiration of the said period of six (6) months do all such things and execute all such deeds, documents and instruments as may be necessary to nominate one person each who consents to be a trustee for sale (“the real property trustees”) and the real property trustees shall be appointed trustees for sale by auction of the former matrimonial home upon the following terms and conditions:
(a)The auctioneer shall be agreed by the real property trustees and failing an agreement as nominated by the president for the time being of the Real Estate Institute of Victoria or his or her nominee;
(b)The reserve price shall be agreed by the real property trustees and failing an agreement as nominated by the auctioneer;
(c)The auction shall take place forty-two (42) days after the expiration…

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 Sullivan and Sullivan

Details

AGLC: Sullivan and Sullivan [2010] FMCAfam 91
Case: [2010] FMCAfam 91
Decision Date: 16 February 2010

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Sullivan and Sullivan was heard by the court. The case involved a dispute between the parties regarding the division of their matrimonial assets. The court was required to determine the distribution of their former matrimonial home, personal property, and other assets. The wife sought an order for the sale of the former matrimonial home, and if that failed, an auction. The husband opposed the wife’s application.

The court considered the appropriate division of the former matrimonial home, given the parties' failure to agree on its sale. The court also had to determine the method of sale if an agreement could not be reached. It was noted that the parties had agreed to divide the CBA term deposit equally among themselves and their daughter. The court ordered that the former matrimonial home be listed for sale by private treaty. If contracts of sale were not exchanged within six months, the home would be sold by auction. The proceeds from the sale were to be distributed equally between the parties, with costs and expenses deducted first. The court also ordered the division of personal property, with the husband and wife preparing lists of furniture and each selecting one list. The court further ordered the husband to indemnify the wife for debts in his sole name, and vice versa. The husband was also ordered to pay the costs of subpoenaed persons and the wife was to be paid a specific sum from the husband’s AMP Flexible Lifetime Investment. The court dismissed all other applications.

Orders

Orders of the court

That subject to any agreement between the parties to the contrary, the parties do all acts and execute all documents necessary to forthwith list for sale by private treaty the former matrimonial home situate and known as Property D in the State of Victoria (“the former matrimonial home”) at a reserve price agreed between the parties or failing agreement within thirty (30) days at a price fixed by the president for the time being of the Real Estate Institute of Victoria and upon sale to distribute the proceeds of sale as follows:

(a) In payment of real estate agents’ commission on the sale;

(b) In payment of proper legal costs and disbursements of and incidental to the sale; and

That in the event that contracts of sale of the former matrimonial home by private treaty have not been exchanged within six (6) months after the former matrimonial home is listed for sale or within such further time that the parties may agree in writing, then the parties shall forthwith upon expiration of the said period of six (6) months do all such things and execute all such deeds, documents and instruments as may be necessary to nominate one person each who consents to be a trustee for sale (“the real property trustees”) and the real property trustees shall be appointed trustees for sale by auction of the former matrimonial home upon the following terms and conditions:

(a) The auctioneer shall be agreed by the real property trustees and failing an agreement as nominated by the president for the time being of the Real Estate Institute of Victoria or his or her nominee;

(b) The reserve price shall be agreed by the real property trustees and failing an agreement as nominated by the auctioneer;

(c) The auction shall take place forty-two (42) days after the expiration of the said period of six (6) months from the date the property is listed for sale or as soon after as it is reasonably practicable or at such later time as may be agreed between the parties;

(d) The real property trustees shall attend the auction and in the event that the property is not sold at auction shall negotiate with the highest bidder;

(e) Any advertising expenses/fees and other expenses payable prior to the auction shall be paid by the husband who shall be reimbursed upon settlement of the sale;

(f) That either party have the right on their own behalf:

(i) To bid at the auction on an unrestricted basis; and

(ii) To not be required to pay a deposit;

(g) In the event that the former matrimonial home is not sold at auction or by private treaty within fourteen (14) days after the date of the auction then the former matrimonial home shall be reoffered for sale by auction forty-two (42) days later on one further occasion upon the same terms and conditions as set out herein with the exception of (b) herein and on that day the property shall be sold to the highest bidder;

(h) In the event that the former matrimonial home is sold at auction then the real property trustees shall distribute the proceeds for sale as follows:

(i) In payment of auctioneers’ commission, expenses and advertising fees;

(ii) In payment of all proper legal costs and disbursements of and incidental to the sale; and

(iii) In payment of the balance remaining to the wife 50% and to the husband 50%.

That pending completion of the sale or auction sale of the former matrimonial home pursuant to paragraphs 1-2 herein:

(a) The parties each have the right to occupy the former matrimonial home;

(b) the parties are to equally pay all rates, taxes and outgoings of the former matrimonial home as they fall due (including any arrears);

(d) Neither party encumber the former matrimonial home without the consent in writing of the other party.

In relation to paragraphs 1 and 2 herein, in the event that the parties or the real property trustees if applicable cannot agree on the identity of the real estate agent and/or auctioneer to conduct the aforesaid sale and/or auction sale, the real estate agent and/or auctioneer will be as nominated by the president of the Real Estate Institute of Victoria.

In relation to paragraphs 1 and 2 herein, in the event that the parties or the real property trustees if applicable cannot agree on the identity of the lawyer or conveyancer to conduct the aforesaid sale and/or auction sale, the lawyer or conveyancer will be as nominated by the president of the Law Institute of Victoria.

Within one month from the date of these orders the husband shall pay to the wife the sum of $30,156.50 and sign any such documents as reasonably requested by the wife, at her expense, to transfer to the wife all his interest in the AMP Flexible Lifetime Investment.

The parties retain all their respective interest and entitlements in their respective superannuation funds.

All items of personal property, furniture, furnishings and effects (excluding the piano) contained in the former matrimonial home shall be divided between the parties by agreement or failing agreement within one month of the date of the making of this order in the following manner:

(a) the husband, within two months of the making of this order, do all acts and things necessary to prepare two lists of the furniture, and the furniture contained in each list be approximate in total value to that contained on the other list;

(b) the wife select one (only) of the said lists within seven days of receipt thereof, and in default, the husband shall select one (only) of the lists for the wife, and thereafter the wife be solely entitled to the items contained in the list she selected or has been allocated, and the husband shall be solely entitled to the items contained in the other list, such selection or allocation to be specified in writing;

(c) the parties shall make available for collection by the other or any persons either nominate in writing, all of those items contained in whichever of the said two lists that other party has chosen or been allocated at any reasonable time requested by the other party, and that pending collection of the items, the parties shall properly maintain such items.

That the husband indemnify the wife with respect to all debts and liabilities in the husband’s sole name.

10.

That the wife indemnify the husband with respect to all debts and liabilities in the wife’s sole name.

11.

Except as is otherwise provided in these Orders:

(a) each party is solely entitled to any real property, motor vehicle, shares, monies standing to his or her credit in any bank or financial institution or due and payable by any third party, chattels, furniture, superannuation entitlements and items of personalty (including choses-in-action) in their respective ownership and/or possession as at the date of these orders;

(b) insurance policies remain the sole property of the owner/beneficiary named thereon/in; and

(c) each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

12.

The husband pay the costs of the two subpoenaed persons, MS M and MR S, fixed in the sum of $700.00 within thirty (30) days of the date of these Orders.

13.

All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. The parties have agreed that the CBA term deposit will be divided into three equal divisions of $10,000 with each party and their daughter [X] born [in] 1989 receiving a one-third division.

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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