De Facto Dispute Over Victorian Properties Reaches Court
Pethrick & Folmar [2022] FedCFamC1F 905 (17 November 2022)
In October 2022, Mr. Folmar initiated a legal proceeding against his de facto wife, Ms. Pethrick, seeking orders to have her withdraw the caveats she had placed on properties at H Street and W Street in Victoria. In response, Ms. Pethrick sought the dismissal of the proceedings or for the net proceeds of the sale to be held in a controlled money account or the court. The husband's affidavit in support of the application was described as convoluted and confusing, and the wife's affidavit was largely devoid of evidence. The case had a background, with the parties declared to be in a de facto relationship for at least two years by Judge O'Sullivan in July 2022.
Facts:
A legal proceeding was initiated by the husband, Mr. Folmar, in October 2022. He seeks orders that his de facto wife, Ms. Pethrick, withdraw the caveats lodged on properties at H Street and W Street in Victoria. The husband's application is supported by an affidavit from his solicitor.
Ms. Pethrick, in response to the husband's application, seeks orders for the dismissal of the proceedings. In the alternative, she seeks that the properties be sold and the net proceeds of sale be paid into a controlled money account or the court until there is a written agreement or court order. Her response is primarily supported by her own affidavit, but she also refers to other affidavits she filed in the past.
In the hearing, no reference was made to the previous affidavits, and the court has no regard for them. The husband's affidavit in support of the application is described as convoluted and confusing, and the wife's affidavit is largely devoid of relevant or admissible evidence. The counsel for both parties provided written submissions, which were supplemented by oral submissions.
There was a background to the case, with Judge O'Sullivan declaring in July 2022 that the parties were in a de facto relationship for a period of at least two years. The reasons for the judgment were documented in the Pethrick & Folmar case.
Issue:
The issue in this case is that the husband is seeking an order for the wife to remove the caveats she placed on the properties, while the wife is seeking for the properties to be sold and the proceeds held in a controlled money account or the court. The case has a background with the parties declared to be in a de facto relationship for at least two years.
Applicable law:
Analysis:
The wife had not claimed any interest in the proceedings through a constructive trust until it was pointed out to her during the hearing. The request for an adjournment to bring this claim was denied as it was seen as too little, too late. The wife relied upon sections 114(3) or 34(1) of the Act for her interlocutory injunction, seeking to hold the proceeds of the sale in a controlled moneys account. The Court has evaluated the wife's affidavit filed in support of her response to the husband's application and found it lacking any evidence to support the interlocutory injunction.
The husband has conceded that the wife should have assurance that sufficient funds will remain available, but the author notes that due to uncertainty about the extent of equity, the net proceeds of sale of the properties will be held briefly in trust for the husband for 14 days. If the wife does not make an application within that period, they will be released to the husband. The husband has a duty to continue disclosure of the proceeds of sale, which will allow the wife to make a considered decision. The Court has denied the wife's request for an adjournment and has ordered that the net proceeds of sale be held briefly in trust for the husband, subject to the wife's potential application. The husband has a duty to disclose the proceeds of sale, allowing the wife to make a decision about how to proceed.
Conclusion:
The wife is ordered to do all necessary actions and sign all required documents at her own expense to remove any restrictions on the ownership of two properties in Victoria, described as H Street in Suburb C and W Street in Suburb Y. If the wife does not comply with this within 7 days, the husband's solicitor will be authorized to do so. If the properties are sold, the proceeds will be held in trust for the husband for 14 days, and if there's no objection from the wife, they will be released to the husband. The husband's application and the wife's response in a proceeding are dismissed, with the costs reserved and the matter referred to the National Assessment Team for further directions.
Case: Pethrick & Folmar [2022] FedCFamC1F 905
Judgment of: STRUM J
Counsels:
Solicitor Advocate for the Applicant: Mr Lennon
Solicitor for the Applicant: Lennon Lawyers
Counsel for the Respondent: Mr Sweeney
Solicitor for the Respondent: White & Mason Lawyers
