Declarations pursuant to s 78 FLA
#27642 (In Topic #4744)
How to get the court to determine as to whether a property was actually transacted on specific dates which give cause to CONTEMPT
On 1st September 2007 a property was disposed/transferred prematurely to defeat a claim in a property matter.
FAMILY LAW ACT 1975 - SECT 78 saidDeclaration of interests in property
(1) In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.
(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.
On 5 September 2007 at a hearing orders in respect of an [nation] property a JR handed down pursuant to s 114(3) orders which did state:
"That pending further order the [party 1] be restrained from taking any step/s which he/she is not obliged to take under provisions of [country] property law to further alienate, encumber or deal with the said property and I note this is made in consent."
On 10th October 2007 a payment to effect settlement of the property was effected in an an Australian account.
Who is the actual owner of the property as at 5th September 2007 (the date of the injunctive orders) and the other dates below?
- 1st August 2007
- 1st September 2007
- 5th September 2007
- 10th October 2007
What is the most appropriate strategy to establish ownership of the property at the prescribed times, and,
is it reasonable option for the court to make a declaration pursuant to s 78 as to who the actual owner is?
Can the court continue to hear a matter wherein there are unknowns which do cause the parties in the matter to argue unknowns?
Is it an imperative that the court crystallize issues prior to a final hearing so that parties can better order their arguments in respect of the orders they seek?
What consequential orders might be sought pursuant to s 78(2) that would enable a more substantive approach to resolving the unknowns?
What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
You have asked a tricky one here. For ownership at a particular time it will be necessary to track the actual title. My first suggestion would be to do a little research into the application of seisin and indefeasibility (for the country) as this will help in identifying possessory and ownership issues at a particular time.
Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars). Be mindful what you post in the public areas.
1 guest and 0 members have just viewed this.