Weir and Weir - [2009] FamCA 451

FAMILY COURT OF AUSTRALIA

WEIR & WEIR

[2009] FamCA 451

FAMILY LAW – CONSENT ORDERS

Family Law Act 1975 (Cth)

APPLICANT:

MR WEIR

RESPONDENT:

MS WEIR

FILE NUMBER:

MLC

11555

2008

DATE DELIVERED:

15 MAY 2009

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

CRONIN J

HEARING DATE:

15 MAY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ROBINSON

SOLICITOR FOR THE APPLICANT:

ROBINSON GILL

COUNSEL FOR THE RESPONDENT:

MRS SERAFINI

SOLICITOR FOR THE RESPONDENT:

SERAFINI & HILL

Orders

BY CONSENT IT IS ORDERED

That the husband pay to the wife the sum of $82,500.00 (“the payment”) on or before 15 June 2009 (“the date”) in the following manner:
(a)an amount sufficient to discharge the Commonwealth Bank mortgage secured on the real property situate at M (“the real property”);
(b)the balance by bank cheque payable to the wife or as she directs;
(c)the husband indemnify the wife against all payments and liability pursuant to the Commonwealth Bank mortgage registered No. … to the Commonwealth Bank (“the mortgage) and otherwise the wife indemnify the husband against all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind;
(d)the husband discharge the Commonwealth Bank mortgage.
(e)The wife at the husband’s expense do all acts and things and sign all documents necessary:
(i)to relinquish to the husband or as he directs all her entitlements in the Weir Superannuation Fund;
(ii)to resign any officeholding in Weir Pty Ltd and transfer any shares to the husband or as he directs.
That contemporaneously with the payment the husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of his right, title and interest in the real property.
That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife;
(b)monies standing to the credit of the parties of the parties in any joint bank account are to be divided equally between the husband and wife;
(c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)insurance policies remain the sole property of the beneficiary named therein;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That the Application of the husband filed on 22 December 2008 and of the wife filed on 3 March 2009 be otherwise dismissed.

IT IS CERTIFIED

That pursuant to Chapter…

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 Weir and Weir

Details

AGLC: Weir and Weir [2009] FamCA 451
Case: [2009] FamCA 451
Decision Date: 15 May 2009

CaseChat Overview and Summary

In *Weir and Weir*, the parties, a husband and wife, presented consent orders to the court for approval. The dispute concerned the division of their property and the finalisation of their financial relationship. The matter came before Cronin J.

The court was required to determine the terms of the consent orders, which addressed the division of specific assets including real property, a superannuation fund, and shares in a company. The orders also stipulated the payment of a sum of money from the husband to the wife, the discharge of a mortgage, and the indemnification of each party against certain liabilities. Furthermore, the court needed to ensure that the orders, as far as practicable, finally determined the financial relationship between the parties and avoided further proceedings.

The court's reasoning was based on the parties' agreement, as evidenced by the consent orders. The legal principles applied were those governing the division of property and the finalisation of financial settlements under the *Family Law Act 1975*. Section 81 of the Act was specifically noted, indicating the parties' intention for the orders to achieve a final determination of their financial relationship. The court approved the orders as presented, reflecting the parties' mutual agreement on the distribution of their assets and liabilities.

By consent, the court ordered the husband to pay the wife $82,500 by a specified date, to discharge a mortgage on their real property, and to indemnify the wife against mortgage liabilities. The wife was to relinquish her entitlements in a superannuation fund and resign from any officeholding in a company, transferring her shares to the husband. Contemporaneously, the husband was to transfer his interest in the real property to the wife. Each party was to be solely entitled to other property in their possession, with joint bank accounts to be divided equally. The orders also severed any joint tenancies and provided for each party to be solely liable for liabilities encumbering property they received. The applications filed by both parties were otherwise dismissed, and the court certified that the matter reasonably required the attendance of a solicitor acting as counsel.

Orders

Orders of the court

BY CONSENT IT IS ORDERED

That the husband pay to the wife the sum of $82,500.00 (“the payment”) on or before 15 June 2009 (“the date”) in the following manner:

(a) an amount sufficient to discharge the Commonwealth Bank mortgage secured on the real property situate at M (“the real property”);

(b) the balance by bank cheque payable to the wife or as she directs;

(c) the husband indemnify the wife against all payments and liability pursuant to the Commonwealth Bank mortgage registered No. … to the Commonwealth Bank (“the mortgage) and otherwise the wife indemnify the husband against all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind;

(d) the husband discharge the Commonwealth Bank mortgage.

(e) The wife at the husband’s expense do all acts and things and sign all documents necessary:

(i) to relinquish to the husband or as he directs all her entitlements in the Weir Superannuation Fund;

(ii) to resign any officeholding in Weir Pty Ltd and transfer any shares to the husband or as he directs.

That contemporaneously with the payment the husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of his right, title and interest in the real property.

That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife;

(b) monies standing to the credit of the parties of the parties in any joint bank account are to be divided equally between the husband and wife;

(d) insurance policies remain the sole property of the beneficiary named therein;

(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

That the Application of the husband filed on 22 December 2008 and of the wife filed on 3 March 2009 be otherwise dismissed.

IT IS CERTIFIED

That pursuant to Chapter 19 of the Family Law Rules this matter reasonably required the attendance of a Solicitor acting as Counsel.

IT IS DIRECTED

That the Minutes of Consent Orders remain on the Court file.

That the Solicitor for the husband file 3 clean copies of these Orders within 14 days.

That all/property/maintenance issues be removed from the Pending Cases List.

That any future hearing/conference date be vacated.

THE COURT NOTES

10.

That pursuant to Section 81 of The Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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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