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 | of | 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…
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- THORNLEY & THORNLEY [2018] FamCA 964
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- [2018] FamCA 964
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CaseChat Overview and Summary
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:
1.
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.
2.
The parties’ costs of today be reserved.
3.
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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