THORNLEY & THORNLEY - [2018] FamCA 964

FAMILY COURT OF AUSTRALIA

THORNLEY & THORNLEY

[2018] FamCA 964

FAMILY LAW – PROPERTY – Interim application – Where the husband seeks orders that the sale proceeds of properties owned by the wife be deposited into a controlled monies account – Where the wife opposes that application on the basis that it is unnecessary and inconvenient to her – Where the wife asserts that the matrimonial property pool is such that it would allow for the adjustment sought by the husband at final hearing, regardless of whether the orders sought in this application were made – Where the Court finds that the husband has failed to establish that there is a real risk of the wife dissipating matrimonial funds such that the Court will be unable to make final orders as sought by him – Where the Court finds that the balance of convenience favours the wife – Application dismissed, subject to undertaking.

Family Law Act 1975 (Cth) s 114

Finn v Carelli (2007) NSWSC 261
Liu v Xiao (2018) NSWSC 1401

APPLICANT:

Mr Thornley

RESPONDENT:

Ms Thornley

FILE NUMBER:

SYC

3738

2017

DATE DELIVERED:

29 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

29 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Jo-Anna F S Moy Solicitor

Orders

THE COURT ORDERS THAT:

NOTING THAT the wife has today given an undertaking that she will utilise the proceeds of the sale of the Suburb D property in payment of the mortgages on the Suburb A and Suburb B properties and that she will not vary or seek to vary the terms of her agreement with C Lawyers in respect to the $700,000 to be paid into the C Lawyers Trust Account, the husband’s Application in a Case filed on 26 October 2018 be dismissed.
The parties’ costs of today be reserved.
Within 28 days, each party to provide to the other an offer for settlement pursuant to rule 10.06 of the Family Law Rules 2004.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornley & Thornley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3738 of 2017

Mr Thornley

Applicant

And

Ms Thornley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This decision concerns an Application in the Case filed by the husband as a matter of urgency, seeking that the proceeds of sale of two properties, one located at Suburb D and…

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.

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Details

AGLC: THORNLEY & THORNLEY [2018] FamCA 964
Case: [2018] FamCA 964
Decision Date: 29 October 2018

CaseChat Overview and Summary

In the matter of *THORNLEY & THORNLEY*, heard before McClelland J, the dispute concerned an application by the husband filed on 26 October 2018. The wife had provided an undertaking regarding the proceeds of the sale of a property located in Suburb D, specifically that these proceeds would be used to pay off mortgages on properties in Suburb A and Suburb B, and that she would not alter her agreement with C Lawyers concerning a $700,000 payment into their trust account.

The central legal issue before the court was whether the husband's application should be dismissed, given the wife's undertakings. This required the court to consider the adequacy and enforceability of the wife's undertakings in resolving the financial aspects of the dispute between the parties.

McClelland J dismissed the husband's application, noting the wife's undertakings. The court's reasoning appears to have been that these undertakings provided sufficient assurance regarding the management of the property sale proceeds and the agreed payment, thereby resolving the immediate concerns raised by the husband's application. The court also reserved the parties' costs of the hearing and ordered that within 28 days, each party was to provide the other with a settlement offer in accordance with rule 10.06 of the *Family Law Rules 2004*.

Orders

Orders of the court

THE COURT ORDERS THAT:

NOTING THAT the wife has today given an undertaking that she will utilise the proceeds of the sale of the Suburb D property in payment of the mortgages on the Suburb A and Suburb B properties and that she will not vary or seek to vary the terms of her agreement with C Lawyers in respect to the $700,000 to be paid into the C Lawyers Trust Account, the husband’s Application in a Case filed on 26 October 2018 be dismissed.

The parties’ costs of today be reserved.

Within 28 days, each party to provide to the other an offer for settlement pursuant to rule 10.06 of the Family Law Rules 2004.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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