W and W - [2004] FMCAfam 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W

[2004] FMCAfam 361

FAMILY LAW – Contravention – order for transfer of former matrimonial home to name of applicant – failure to transfer by Respondent – mortgaging property subject of order – failure to do all acts and things to effect transfer – disposal of proceeds of mortgage-community interest in rule of law must be considered-respondent sentenced to term of imprisonment of twelve months.

Family Law Act 1975, ss.112AA, 112AB, 112AC, 112AD,112AE

Sahari and Sahari (1976) FLC 90-086
Lindsay and Lindsay (1995) FLC 92-638
Briginshaw v Briginshaw (1938) 60 CLR 336.
Bonilla & Whittall (No.1) 2003 FMCAfam 101
Ibbotsen v Wincen (1994) FLC 92-469
Schwarzkopff (1992) FLC 92-303

Applicant:

MAW

Respondent:

File No:

(P)NCM3743 of 2002

Delivered on:

20 July 2004

Delivered at:

Newcastle

Hearing date:

12 July 2004

Judgment of:

FM Donald

REPRESENTATION

Counsel for the Applicant:

Mr G J Fox

Solicitors for the Applicant:

Attwaters

Counsel for the Respondent:

In person

Solicitors for the Respondent:

ORDERS

On a date or dates after 16 February 2004 the said KW:
(a)Obtained from Land and Property Information NSW a substitute Certificate of Title for the home in his sole name; and
(b)proceeded to complete a mortgage transaction on the security of the title of the home without notice to, or the consent of, the Applicant and
(c)caused or permitted the company D Pty Limited to register mortgage number A on the title of the home without notice to, or the consent of, the Applicant
In the circumstances the actions of the Respondent have prevented the Applicant from becoming recorded on title as the registered proprietor of the home and that the Applicant’s Application for contravention filed 4 March 2004 is proved.
In respect of the contravention filed 4 March 2004, KW is sentenced to 12 months imprisonment to date from 8 April 2004.
That the matter is referred to the Marshall of this Court for consideration of proceedings under section 112AP of the Family Law Act.
That the Respondent pay the Applicant’s costs of this Application to be agreed or taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM 3743 of 2002

MAW

Applicant

And

Respondent

REASONS FOR JUDGMENT

Preliminary

This is a matter in which the Applicant has, by Application filed on

4 March 2004, alleged that the Respondent contravened Orders made in this Court on 16 February 2004.
Those Orders are in the following terms:
3.That, pending further order, the Respondent transfer to the Applicant the legal title of the land and premises situate at and known as 10 L Road, V, in the State of New South Wales being the land contained in Certificate of Title Folio Identifier 2 (“the home”).
5.That the Respondent forthwith do all acts and things and execute all deeds and instruments necessary or convenient to effect the transfer of title in accordance with order 3 hereof.
It is alleged by the Applicant that the Respondent failed to comply with…

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 W and W

Details

AGLC: W and W [2004] FMCAfam 361
Case: [2004] FMCAfam 361
Decision Date: 20 July 2004

CaseChat Overview and Summary

The case of W and W involved a dispute between two parties, KW and the Applicant, regarding the ownership and mortgage of a property. The matter was heard and decided by the Family Court of Australia. The Applicant sought to have the Respondent, KW, held in contravention of a family law property settlement, arguing that KW had obtained a substitute Certificate of Title for the home in his sole name and completed a mortgage transaction without the Applicant's knowledge or consent. KW, on the other hand, argued that the actions taken were within his rights as the sole owner of the property.

The legal issues that the court had to decide included whether KW's actions in obtaining the substitute Certificate of Title and completing the mortgage transaction constituted a contravention of the family law property settlement. The court also had to determine whether the Applicant was entitled to be recorded on the title as the registered proprietor of the property. Furthermore, the court needed to consider the appropriate sentence for KW's contravention of the family law property settlement and whether the matter should be referred to the Marshall of the Court for consideration of proceedings under section 112AP of the Family Law Act.

The court found that KW's actions did indeed constitute a contravention of the family law property settlement. The court held that the Applicant was entitled to be recorded on the title as the registered proprietor of the property and that KW's actions had prevented the Applicant from achieving this. The court sentenced KW to 12 months imprisonment for the contravention and referred the matter to the Marshall of the Court for consideration of proceedings under section 112AP of the Family Law Act. Finally, the court ordered KW to pay the Applicant's costs of the application.

Orders

Orders of the court

On a date or dates after 16 February 2004 the said KW:

(a) Obtained from Land and Property Information NSW a substitute Certificate of Title for the home in his sole name; and

(b) proceeded to complete a mortgage transaction on the security of the title of the home without notice to, or the consent of, the Applicant and

(c) caused or permitted the company D Pty Limited to register mortgage number A on the title of the home without notice to, or the consent of, the Applicant

In the circumstances the actions of the Respondent have prevented the Applicant from becoming recorded on title as the registered proprietor of the home and that the Applicant’s Application for contravention filed 4 March 2004 is proved.

In respect of the contravention filed 4 March 2004, KW is sentenced to 12 months imprisonment to date from 8 April 2004.

That the matter is referred to the Marshall of this Court for consideration of proceedings under section 112AP of the Family Law Act.

That the Respondent pay the Applicant’s costs of this Application to be agreed or taxed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.