Wacket and Wacket - [2010] FamCA 154

FAMILY COURT OF AUSTRALIA

WACKET & WACKET

[2010] FamCA 154

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable – Superannuation
FAMILY LAW – SPOUSE MAINTENANCE – Need – capacity
FAMILY LAW – CHILD SUPPORT DEPARTURE

Family Law Act 1975 (Cth) ss 72,75 & 79
Child Support (Assessment) Act 1989 (Cth) s 117

In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
In the Marriage of Pierce (1999) 24 Fam LR 377; FLC 92-844
In the Marriage of Mitchell (1995) FLC 92-601; 19 Fam LR 44
In the Marriage of Gyselman [1991] 15 FamLR 219, (1992) FLC 92-279

APPLICANT:

Ms Wacket

RESPONDENT:

Mr Wacket

FILE NUMBER:

SYC

3030

2008

DATE DELIVERED:

3 March 2010

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE:

28 & 29 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:	Mr G. Johnston
SOLICITOR FOR THE APPLICANT:	Johnston Vaughan Solicitors

COUNSEL FOR THE RESPONDENT

HUSBAND:

Mr M. Kearney

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

The husband and the wife take all steps and sign all documents necessary to cause the property situated at and known as R property (“the former matrimonial home”) to be sold and in particular shall:
(a)Appoint an agent to market the former matrimonial home for sale, and failing agreement being reached within 7 days the husband shall nominate three agents to the wife from which she will select one agent and if she fails to do so within 7 days, the husband shall select one agent;
(b)Market the former matrimonial home for sale by private treaty;
(c)Execute all documents requested by the real estate agent for the sale of the former matrimonial home by private treaty and in the event the parties cannot agree on the terms of the agent’s contract within 7 days the contract is to be in the agent’s standard form and with the agent’s standard fees.
(d)Give such instructions as are necessary to a solicitor agreed between the parties and failing such an agreement to a solicitor nominated by the President of the New South Wales Law Society for the preparation of a Contract for Sale and for the Contract of Sale to be made available to the real estate agent.
(e)In the event the former matrimonial home is not sold by private treaty within three months then the former matrimonial home is to be placed for sale by public auction to take place on a date within a further…

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 Wacket and Wacket

Details

AGLC: Wacket and Wacket [2010] FamCA 154
Case: [2010] FamCA 154
Decision Date: 3 March 2010

CaseChat Overview and Summary

This matter concerned orders made by Judicial Registrar Loughnan between a husband and wife regarding the division of their property and related financial matters. The central dispute revolved around the sale of the former matrimonial home and the distribution of its proceeds, along with arrangements for other assets, spousal maintenance, child support, and superannuation interests.

The court was required to determine the specific steps and documentation necessary for the sale of the former matrimonial home, including the appointment of an agent, marketing method, and the terms of the sale contract. Further issues included the wife's vacating the property, the priority of disbursement of sale proceeds, the transfer of a motor vehicle, the division of household contents, and the sharing of family photographs and videos. The court also addressed spousal maintenance obligations for the husband, the wife's entitlement to a portion of the husband's superannuation, and a departure from the administrative assessment of child support to cover the children's private school fees and health insurance.

The Judicial Registrar ordered the sale of the former matrimonial home by private treaty, with specific provisions for agent appointment and contract terms. If not sold within three months, it was to be auctioned. The proceeds were to be applied first to sale expenses, then to discharge mortgages, with the remainder split 85% to the wife and 15% to the husband. The wife was ordered to vacate the property upon settlement. The husband was to transfer his interest in a Ford Territory vehicle to the wife. Specific items of furniture and contents were to be collected by the husband from the former matrimonial home, with one item being subject to agreement. Family photographs and videos were to be made available to both parties, with shared copying costs. The husband was ordered to pay spousal maintenance for a specified period and amount, and a portion of his superannuation was to be transferred to the wife. The husband was also ordered to pay all costs associated with the children's private schooling and health insurance, which was to be credited against his child support assessment. Each party was to retain other assets in their possession.

Orders

Orders of the court

The husband and the wife take all steps and sign all documents necessary to cause the property situated at and known as R property (“the former matrimonial home”) to be sold and in particular shall:

(a) Appoint an agent to market the former matrimonial home for sale, and failing agreement being reached within 7 days the husband shall nominate three agents to the wife from which she will select one agent and if she fails to do so within 7 days, the husband shall select one agent;

(b) Market the former matrimonial home for sale by private treaty;

(c) Execute all documents requested by the real estate agent for the sale of the former matrimonial home by private treaty and in the event the parties cannot agree on the terms of the agent’s contract within 7 days the contract is to be in the agent’s standard form and with the agent’s standard fees.

(d) Give such instructions as are necessary to a solicitor agreed between the parties and failing such an agreement to a solicitor nominated by the President of the New South Wales Law Society for the preparation of a Contract for Sale and for the Contract of Sale to be made available to the real estate agent.

(e) In the event the former matrimonial home is not sold by private treaty within three months then the former matrimonial home is to be placed for sale by public auction to take place on a date within a further period of 8 weeks;

(f) The reserve price for sale by public auction shall be $1.5 million or such other figure as is agreed between the parties;

(g) Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached;

(h) Execute the Contract for Sale and in the event the husband and the wife fail to agree on the terms of the Contract for Sale the terms recommended by an independent solicitor shall be adopted;

(i) Co-operate in every way with the real estate agent in relation to the sale of the former matrimonial home including making keys available, allowing inspection of the former matrimonial home at all times requested by the real estate agent and ensuring that the former matrimonial home is in a neat and clean condition at the time of inspection by the prospective purchasers;

(j) Execute all other documents necessary to complete the sale within the times required by the Contract for Sale to ensure that the purchasers do not have a right to terminate or rescind due to failure to do so;

The wife shall vacate the former matrimonial home upon or prior to the date of settlement of the sale.

Upon settlement of the sale of the former matrimonial home the husband and the wife shall take all steps and sign all documents necessary to cause the proceeds of sale to be disbursed in the following manner and priority:

(a) Payment of real estate agents commission and auction expenses (if any);

(b) Payment of reasonable legal costs of sale and usual conveyancing adjustments;

(d) In payment of the remaining balance as to 85% to the wife and 15% to the husband; and,

The husband shall forthwith do all acts and things and sign all documents required to transfer to the wife his interest in Ford Territory motor vehicle registered no. ….

Prior to settlement of the sale the wife shall provide access to the former matrimonial home to the husband to collect the following items of furniture and contents:

(a) … framed water colour painting located in formal lounge room of the property;

(b) Greek Islands Sunset photograph;

(d) Small chest of drawers (metal strapped blanket box located in formal lounge room of the property);

(e) Cast iron magazine rack located in formal lounge room;

(f) 1,100 diameter pedestal based tea table located in formal lounge room;

(g) Formal cutlery set;

(h) ….;

(i) Carved camphorwood box in rumpus room;

(j) Tools and effects located in the backyard shed;

(k) All the husband’s personal papers, files, CD’s and books;

(l) All items gifted to the husband contained in the cabinet in the formal lounge room.

The Court noted that except as to item (g), Order 5 is made by consent.

By consent the wife shall make available to the husband all family photographs and family videos and the parties shall share equally the cost of copying such family photographs and videos as are nominated for copying by each party as and when such costs fall due.

The husband shall pay to the wife as she directs from time to time, by way of spousal maintenance:

(a) Commencing on the date of these orders and continuing for a period of four months thereafter, $400 per week together with the direct amounts payable by the husband for the benefit of the wife pursuant to the orders made on 24 June 2008; and thereafter

(b) $300 per week until the conclusion of the wife’s current course of tertiary studies or 31 December 2012, whichever is the earlier.

Whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in Plum Personal Plan, a sub-plan of the Plum Superannuation Fund the wife shall be entitled to the sum representing 40% of the husband’s entitlement and there shall be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for this Order.

10.

Order 9 has effect from the operative time and the operative time for the orders shall be the fourth business day from the date of service of the orders upon PFS Nominees Limited, the trustee of Plum Personal Plan, a sub-plan of the Plum Superannuation Fund.

11.

Orders 9 and 10 above shall bind PFS Nominees Limited, the trustee of Plum Personal Plan, a sub-plan of the Plum Superannuation Fund.

12.

Other than as set out above each of the husband and the wife shall be solely entitled to the exclusion of the other to all other assets in their respective possession and control.

13.

Pursuant to Section 117 of the Child Support (Assessment) Act 1989 there be a departure from the Administrative Assessment of child support payable by the husband to the wife in respect of C born … May 1996 (“C”) and J born … July 1997 (“J”) such that the husband shall pay as and when they fall due up until the conclusion of the children’s secondary schooling:

(a) All costs of the attendance of C and J at their present private schools (or such other schools as may be agreed between the parties in writing) including but not limited to:

(i) Tuition fees;

(ii) Books, resources and stationery, excursions;

(iii) Material charges;

(iv) School uniforms;

(v) Extra-curricular activities as are agreed between the parties.

(b) Such moneys as are required to maintain the children in the current level of private health insurance.

14.

The amounts payable by the husband pursuant to Order 13 are to be credited as 25% of the annual rate of child support payable by the husband under all and any relevant Administrative Assessments.

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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