Weichman and Raynor - [2007] FMCAfam 342

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALDEN & ROMAN

[2007] FMCAfam 342

FAMILY LAW – Property – 4^thstep – consideration of what is just and equitable in the circumstances – wife seeks to retain all of her entitlement in realisable assets and for husband to retain his entitlement in superannuation assets – husband seeks that each party retain a ‘mix’ of realisable and superannuation assets.

Family Law Act 1975

Aleksovski & Aleksovski (1996) FLC 92-705
Coghlan & Coghlan (2000) FLC 93-220
Doherty & Doherty [2006] FamCA 199
G & G (2000) 26 Fam LR 592
HG & HCT [2005] FamCA 734
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Gill (1984) 9 Fam LR 969
In the Marriage of Lee Steere (1985) FLC 91-626
Jones v Dunkel (1959) 101 CLR 298
Kowalski & Kowalski (1993) FLC 92-342
Lorriman & Lorriman [2004] FamCA 1010
McCullogh & McCullogh [2006] FamCA 840
Norbis v Norbis (1986) 161 CLR 513
Parshen & Parshen (1996) FLC 92-720
Pellegrino & Pellegrino (1997) FLC 92-789
Sippel & Sippel [2004] FamCA 201

Applicant:

MR WALDEN

Respondent:

MS ROMAN

File number:

SYM 2079 of 2006

Judgment of:

Sexton FM

Hearing dates:	5 and 6 March 2007
Date of last submission:	6 March 2007

Delivered at:

Sydney

Delivered on:

29 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr P Cook

Solicitors for the Applicant:

Stuart Fowler & Partners

Counsel for the Respondent:

Ms J Haughton

Solicitors for the Respondent:

Kartsounis & Co.

THE COURT ORDERS THAT:

Within 14 days the parties do all acts and things necessary to close their joint account with the ANZ Bank and the wife receive any credit balance in that account.
Within 28 days the parties divide by agreement between them the furniture and chattels in the former matrimonial home which existed at the time of separation and failing agreement by the due date, the parties divide the items by the pick a pile method within a further 14 days, in the presence of their solicitors, the wife have first choice.
Within two calendar months (“the date of settlement”) the following to occur simultaneously:
(a)The wife pay the husband by way of property settlement the sum of $92,137.00;
(b)The wife do all things and execute all documents necessary to cause the mortgage secured over Property C in the State of New South Wales (“the home”) being the whole of the land contained in the Certificate of Title Lot 7xxx in Deposited Plan 7xxx to be discharged and indemnify the husband in relation to same; and
(c)The husband do all acts and things and execute all documents necessary to cause his right, title and interest in the home to be transferred to the wife.
In the event the wife fails or is unable to comply with Order (3) herein by the date of settlement, the parties forthwith do all…

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 Weichman and Raynor

Details

AGLC: Weichman and Raynor [2007] FMCAfam 342
Case: [2007] FMCAfam 342
Decision Date: 29 May 2007

CaseChat Overview and Summary

In the Family Court of Australia, the case of Weichman and Raynor involved a dispute between the parties over the division of assets and liabilities following their separation. The husband and wife had been married for a period of time and had accumulated various assets, including a joint bank account and a matrimonial home, as well as personal debts. The wife sought a property settlement and an order for the division of the assets and liabilities between the parties. The husband, on the other hand, opposed the wife's application for a property settlement and sought an equal division of the assets and liabilities.

The court was required to determine whether the wife was entitled to a property settlement and, if so, the appropriate amount. The court was also required to determine the division of the assets and liabilities between the parties, including the former matrimonial home, and make orders to facilitate the division of the assets and the payment of the property settlement. The court had to consider the contributions made by each party to the acquisition and preservation of the assets, the needs and future prospects of each party, and any other relevant factors.

The court found that the wife was entitled to a property settlement and ordered the husband to pay the wife a sum of $92,137.00. The court also ordered the division of the assets and liabilities between the parties, including the former matrimonial home. The court made detailed orders for the division of the assets and liabilities, including the closure of the joint bank account, the division of the furniture and chattels in the former matrimonial home, the discharge of the mortgage over the home, and the transfer of the husband's interest in the home to the wife. The court further made orders for the sale of the home in the event the wife was unable to comply with the orders for the division of the assets and liabilities. The court also made orders for the distribution of the proceeds of the sale of the home and the sharing of the outgoings on the home pending the sale. The court made orders for the sharing of the mortgage repayments and the exclusive occupation of the home by the wife pending the sale of the home.

The court made orders for the indemnifying of each party in relation to their personal debts and liabilities and for the retention of any other assets, personal or real, superannuation entitlements and financial resources by each party. The court further made orders for the appointment of the Registrar of the Court to execute any deeds and instruments necessary to give effect to the orders in the event either party refused or neglected to comply with any of the orders. The court made orders for the re-listing of the matter and the return of the exhibits tendered in the proceedings. The court further made orders for the filing and serving of any application for costs within 28 days and the dismissal of all outstanding applications and removal of the matter from the list of cases awaiting finalisation.

Orders

Orders of the court

Within 14 days the parties do all acts and things necessary to close their joint account with the ANZ Bank and the wife receive any credit balance in that account.

Within 28 days the parties divide by agreement between them the furniture and chattels in the former matrimonial home which existed at the time of separation and failing agreement by the due date, the parties divide the items by the pick a pile method within a further 14 days, in the presence of their solicitors, the wife have first choice.

Within two calendar months (“the date of settlement”) the following to occur simultaneously:

(a) The wife pay the husband by way of property settlement the sum of $92,137.00;

(b) The wife do all things and execute all documents necessary to cause the mortgage secured over Property C in the State of New South Wales (“the home”) being the whole of the land contained in the Certificate of Title Lot 7xxx in Deposited Plan 7xxx to be discharged and indemnify the husband in relation to same; and

(c) The husband do all acts and things and execute all documents necessary to cause his right, title and interest in the home to be transferred to the wife.

In the event the wife fails or is unable to comply with Order (3) herein by the date of settlement, the parties forthwith do all acts and things necessary to sell the home for the best price reasonably obtainable and by way of consequential orders:

(a) The parties do all acts and things necessary to enable the property to be listed for sale by private treaty with such real estate agents as the parties agree and failing agreement within 14 days, with a licensed real estate agent as may be determined by the President of the Real Estate Institute of New South Wales or his/ her nominee, upon the written request of either party (“the selling agent”);

(b) Within 14 days the parties do all acts and things necessary, including but not limited to signing all or any Cost Agreement, to prepare a Contract of Sale with such solicitor as the parties agree and failing agreement, with a solicitor appointed by the President of the Law Society of NSW or his/ her nominee, upon the written request of either party (“the solicitor”);

(c)

The parties agree on a sale price and failing agreement within

14 days, a price to be determined by an accredited real estate valuer appointed by the Australian Property Institute (NSW), upon the written request of either party (“the valuer”) and the parties share equally the costs of the appointment;

(d) The wife cooperate in allowing access to the property at all reasonable times to prospective purchasers and the selling agent and ensure the property is clean and tidy at the time of inspections;

(e) The wife maintain the property in reasonable condition and repair having regard to its present condition and state thereof, pending completion of the sale of the property;

(f) If the property is not sold by private treaty within three (3) months of being listed for sale then the parties do all acts and things necessary for the property to be sold by auction;

(i) Through a licensed auctioneer as agreed between the parties and failing agreement as appointed by the selling agent;

(ii) At a reserve price agreed upon by the parties and failing agreement within 14 days then at a reserve price determined by the valuer;

(iii) The auction be listed on a date no more than five (5) months from when the property was first listed for sale by private treaty; and

(iv) In the event the property does not sell at the first auction then the property be re-listed for auction within two (2) months at a reserve price as agreed between the parties and failing agreement at 5% less than the reserve price at the first auction.

Upon completion of the sale of the home, the proceeds be distributed in the following order and priority:

(a) In payment of agents commission and selling costs;

(b) In payment of legal costs associated with the sale;

(d) In adjustment between the parties as a result of any failure by either party to meet outgoings on the home prior to sale in accordance with these Orders;

(e) In payment of the amount necessary to discharge the mortgage secured over the property;

(f) In payment of 65% to the wife;

(g) In payment of $89,163 to the wife; and

(h) In payment of the balance to the husband.

Pending the date of settlement:

(a) The husband and wife share equally the mortgage repayments as and when they fall due and the wife be responsible for all other outgoings on the home;

(b) The wife have exclusive occupation of the home.

From the date of settlement, the wife be solely liable for all outgoings in respect of the home including mortgage repayments and indemnify the husband in relation to same.

Each party be solely liable for any debts to his/her parents and indemnify and keep indemnified the other party in relation to same.

Except as otherwise provided in these orders, the parties each retain as against the other any other assets, personal or real, superannuation entitlements and financial resources in his/ her possession, custody or control or to which he/ she becomes entitled.

10.

Except as otherwise provided in these orders, the husband and the wife remain liable for any debts, howsoever arising, in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto.

11.

In the event the husband or the wife refuses or neglects to comply with any of the Orders herein, the Registrar of this Court at its Sydney Registry be appointed pursuant to section 106A of the Act to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.

12.

The parties be at liberty to re-list the matter on providing to the other party seven (7) days notice regarding the implementation of these Orders.

13.

All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.

14.

Any application for costs be filed and served with supporting affidavit within 28 days.

15.

All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

16.

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.