Verley & Verley (No 2) - [2008] FamCA 326

FAMILY COURT OF AUSTRALIA

VERLEY & VERLEY (NO. 2)

[2008] FamCA 326

FAMILY LAW – PROPERTY SETTLEMENT

Family Law Act 1975 (Cth)

Bonnici and Bonnici (1992) FLC 92-272, 15 Fam LR 138
Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
James and James (1978) FLC 90-487
Pierce and Pierce (1999) FLC 92-844, 24 Fam LR 377

APPLICANT:

Mrs Verley

RESPONDENT:

Mr Verley

FILE NUMBER:

MLF

2366

2006

DATE DELIVERED:

13 May 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

14, 15 16 April; 2 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR DICKSON

SOLICITOR FOR THE APPLICANT:

LANDER & ROGERS

SOLICITOR FOR THE RESPONDENT:

J A MIDDLEMIS

Orders

That by 4.00pm on 27 June 2008 (“the due date”), the husband pay to the wife the sum of $788,000 (“the payment”).
That contemporaneously with the payment on or before the due date:
(a)the husband refinance the Westpac housing loan (“the housing mortgage”) to discharge any liability of the wife therein and provide to the wife evidence of having done so; and
(b)the wife provide to the husband (at the expense of the wife) a withdrawal of caveat number ….
That in the event that the whole of the payment has not been made by the due date, then such of the real properties referred to in paragraphs 35 and 38 of the affidavit of the wife filed 4 April 2008 and collectively known as G property, as are necessary to pay the payment due to the wife be forthwith sold and the proceeds of sale be applied:
(a) first, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge any encumbrance affecting the said properties;
(c)thirdly, so much of the payment as is then outstanding together with interest at the rate of 11.75 per centum per annum, adjusted monthly from the due date, to the wife; and
(d) fourthly, the balance to the husband.
That pending the payment or completion of the said sale:
(a)the husband have the sole right to occupy the said real properties provided that during such occupation, the husband pay all instalments pursuant to any mortgage affecting the said properties together with all rates and taxes and other outgoings as they fall due;
(b)the husband hold his interest in the real properties upon trust pursuant to these orders; and
(c)neither party encumber the said real properties without the consent in writing of the other.
That the terms and conditions other than as specified in these orders shall be determined by agreement between the parties and failing agreement by a single expert witness jointly appointed by the parties. Should the parties disagree on a nominated single expert witness for that purpose, the provisions of Rule 15.46(b) to (f) shall apply and a registrar nominated by the co-ordinating registrar shall appoint that single expert witness.
That in the event that there are still disputes between the parties as to the:
(a) terms…

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 Verley & Verley (No 2)

Details

AGLC: Verley & Verley (No 2) [2008] FamCA 326
Case: [2008] FamCA 326
Decision Date: 13 May 2008

CaseChat Overview and Summary

In *Verley & Verley (No 2)*, Justice Cronin of the Family Court of Australia was required to make orders concerning the financial settlement between a husband and wife. The proceedings arose from an application by the wife, filed in August 2006, and a response by the husband filed shortly thereafter. The court's primary focus was to resolve outstanding financial matters between the parties, including the division of property and superannuation entitlements.

The court was tasked with determining the specific terms of the financial settlement, including the quantum and timing of payments between the parties, the disposition of real property, and the division of superannuation. Key issues included how to secure a substantial payment from the husband to the wife, the conditions under which certain real estate would be sold if the payment was not made, and the respective entitlements to superannuation. The court also needed to address the occupation of the marital home pending the final settlement and the process for resolving any future disputes regarding the sale of property.

Justice Cronin ordered the husband to pay the wife $788,000 by 27 June 2008. This payment was to be made contemporaneously with the husband refinancing a housing loan to discharge the wife's liability and the wife providing a withdrawal of a caveat. In the event of non-payment, specified real properties were to be sold, with proceeds applied first to sale costs, then to discharge encumbrances, then to the outstanding payment plus interest at 11.75% per annum, and finally any balance to the husband. The husband was granted sole occupation of the properties pending payment or sale, provided he met all associated costs. The court also ordered that each party retain their respective superannuation entitlements and that the original applications be dismissed, with costs to be determined on written submissions.

Orders

Orders of the court

That by 4.00pm on 27 June 2008 (“the due date”), the husband pay to the wife the sum of $788,000 (“the payment”).

That contemporaneously with the payment on or before the due date:

(a) the husband refinance the Westpac housing loan (“the housing mortgage”) to discharge any liability of the wife therein and provide to the wife evidence of having done so; and

(b) the wife provide to the husband (at the expense of the wife) a withdrawal of caveat number ….

That in the event that the whole of the payment has not been made by the due date, then such of the real properties referred to in paragraphs 35 and 38 of the affidavit of the wife filed 4 April 2008 and collectively known as G property, as are necessary to pay the payment due to the wife be forthwith sold and the proceeds of sale be applied:

(a) first, to pay all costs, commissions and expenses of the sale;

(b) secondly, to discharge any encumbrance affecting the said properties;

(c) thirdly, so much of the payment as is then outstanding together with interest at the rate of 11.75 per centum per annum, adjusted monthly from the due date, to the wife; and

(d) fourthly, the balance to the husband.

That pending the payment or completion of the said sale:

(a) the husband have the sole right to occupy the said real properties provided that during such occupation, the husband pay all instalments pursuant to any mortgage affecting the said properties together with all rates and taxes and other outgoings as they fall due;

(b) the husband hold his interest in the real properties upon trust pursuant to these orders; and

That the terms and conditions other than as specified in these orders shall be determined by agreement between the parties and failing agreement by a single expert witness jointly appointed by the parties. Should the parties disagree on a nominated single expert witness for that purpose, the provisions of Rule 15.46(b) to (f) shall apply and a registrar nominated by the co-ordinating registrar shall appoint that single expert witness.

That in the event that there are still disputes between the parties as to the:

(a) terms and conditions of any sale;

(b) the costs and expenses associated with any such sale;

then the parties shall have liberty to apply for orders determining such dispute.

That each party be otherwise solely entitled to the exclusion of the other to all other property in the possession of such party as at the date of these orders.

That the husband retain and the wife relinquish any interest in, any superannuation entitlement in the name of the husband.

That the wife retain and the husband relinquish any interest in, any superannuation entitlement in the name of the wife.

10.

The application of the wife filed 7 August 2006 and the response of the husband filed 31 August 2006 be otherwise dismissed save as to any application for costs by either party.

11.

That any issue as to costs be determined upon written submission to me and any such application for costs:

(a) be filed with my Associate by 4.00pm on 23 May 2008; and

(b) be served upon the other party by that date.

12.

That in the event that an application is made for costs by either party pursuant to the foregoing order, the other party shall have until 4.00pm on 13 June 2008 to reply.

13.

That unless otherwise impracticable, any application for costs pursuant to these orders be determined in chambers.

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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