Ashforth and Ashforth (No 3)

[2010] FamCA 518

FAMILY COURT OF AUSTRALIA

ASHFORTH & ASHFORTH (NO. 3) [2010] FamCA 518

FAMILY LAW – PROPERTY – Interim

APPLICANT: Ms Ashforth

RESPONDENT: Mr Ashforth

FILE NUMBER: MLC 9801 of 2009

DATE DELIVERED: 10 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 10 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the document entitled “Minute of Consent Order” signed by the wife and dated 10 June 2010 is marked “Exhibit A” and annexed hereto.

2. That save and except for paragraph 2.4, Orders are made by consent in accordance with Exhibit A.

3. That Orders are made in accordance with paragraph 2.4 of Exhibit A.

4. That the document entitled “Wife’s Minute of Proposed Order” is marked “Exhibit B” and notes the remaining interim issues between the parties all of which the husband opposes.

5. That this matter is adjourned for a one (1) day hearing before a judge on a date to be fixed.

6. That leave is granted for the legal representatives to approach the List Manager to obtain a hearing date as set out in Order 5.

Notation:

A.That a list of documents the parties seek to be read for the purposes of the interim hearing set out in Order 5 has been dated and initialled by Justice Cohen and placed with the file.

IT IS NOTED that publication of this judgment under the pseudonym Ashforth & Ashforth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

“EXHIBIT A”

Family Law Act 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY  No MLC 9801 of 2009

BETWEEN   [MS ASHFORTH]  

AND  

[MR ASHFORTH]  

MINUTE OF CONSENT ORDER

Dated: 10 June 2010

By consent, pending further order:

1. That both parties do all acts and things and execute all documents necessary to sell the property at [L], United Kingdom (“the [L] property”) by private treaty at a price agreed between the husband and the wife or failing such agreement at a price equivalent to the mean of two (2) valuations one obtained by and at the expense of the wife and one obtained by and at the expense of the husband, such valuations to be made not more than two (2) weeks apart from each other and in particular:

   1.1place the [L] property with [L Realty] for the sale of the property;

   1.2execute all documents for the sale of the [L] property;

   1.3pay to the agents equally any sums requested for advertising expenses;

   1.4give instructions to Messrs Bishop & Sewell Solicitors for the preparation of an appropriate contract and other documents as are necessary for the sale of the [L] property;

   1.5co-operate in every way with the agents and the tenants of the property, including making a key available, arranging for inspection of the property at times requested by the agents and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers;

   1.6execute the contract of sale; and

   1.7execute all other documents necessary to complete the sale of the [L] property.

2. That the parties do all acts and things and execute all documents necessary so that upon the sale of the [L] property, the proceeds of sale be paid in the following manner and priority:

   2.1in payment of the amount required to discharge the mortgage registered on the title of property;

   2.2in payment of agent's commission and expenses if any due on the sale;

   2.3in payment of legal costs of the sale; and

   2.4the balance to be transferred into the trust account of Messrs Newnhams Solicitors and then to be deposited into a controlled moneys account in the joint names of the parties.

3. That pending further order the husband and the wife do all acts and things so as to ensure that all rents received from:

   4.1 [H property] in the United Kingdom;

   4.2 [B property] in the United Kingdom;

   4.3 [P property] in the United Kingdom;

   4.4[L property] in the United Kingdom,

   be paid in reduction of the mortgages secured over each of the abovementioned properties and then in payment of any outgoings or expenses in respect of each property.

4. That within one month from the making of these orders and then monthly thereafter, the husband account to the wife for the rental income received in respect of the properties referred to in order 4 herein, the mortgage repayments in respect of each property, the expenses and outgoings paid in respect of each property, and the net balance received by the husband.

5. That either party have liberty to restore the matter to the list on seven (7) days notice in relation to any issue that arises regarding the sale of the [L] property.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 9801 of 2009

MS ASHFORTH

Applicant

And

MR ASHFORTH

Respondent

REASONS FOR JUDGMENT

1. The only issue remaining in these proceedings relates to the proceeds of sale of a home which the parties intended to live in in the United Kingdom.  I am told by Mr Campton, and Mr Dura does not seem to dispute it, that on sale of this home it is expected that there could remain moneys owing to those creditors of the parties who hold security over that property.  If there is any surplus, it will be very small.

2. Nevertheless, the wife asks that if there is a surplus, that surplus be transferred to her Sydney solicitor’s trust account, to be deposited in a controlled moneys account in the joint names of the parties.  Mr Dura, on behalf of the husband, opposes that proposal and seeks that the money be deposited in some sort of controlled fund in England.  The problem that he has is that his argument is one that I cannot accept as valid, and it is that the husband wishes to take that course to preserve the value of the money on the assumption that the pound will maintain its value or improve as against the Australian dollar.

3. I cannot find that it is more probable than not either way, so I can not rely upon that reason. 

4. Mr Campton argues although the husband is a member of the British defence force, he might be anywhere at any particular time, and is not at the moment in England - that neither party has solicitors in England and, therefore, it would be difficult to conveniently deposit the money safely, if there is any surplus, and then deal with it safely after that.  I am not particularly impressed by that argument either because I am conscious of the fact that it is very easy for an Australian solicitor to obtain an English agent who could easily deal with the money.

5. However, there is a much stronger basis upon which Mr Campton relies, and it is that it was the husband who was responsible for the proceedings being in Australia rather than in England.  The wife, apparently, commenced the proceedings in England, although she lives in Australia.  The husband sought to have the proceedings heard in Australia despite the fact that all of the property of the parties is in England. In contested proceedings heard and determined by this court, the husband succeeded. This is why the matter is now before me.

6. In those circumstances, I simply cannot understand why the money should not be transferred to Australia, and I think that, on balance, it ought to be; simply because it will avoid cost and inconvenience, although not much inconvenience, and it will be more easily dealt with by each party through their solicitors. 

7. Therefore, I make an order in accordance with paragraph 2.4 of exhibit A.

   RECORDED  :  NOT TRANSCRIBED

8. I will mark the wife’s minute of proposed order exhibit B, and declare that the remaining interim issues between the parties are encompassed by the proposed orders in exhibit B, all of which the husband opposes. 

9. And, in those circumstances, I will adjourn the matter for a one day hearing before a judge on a date to be fixed.

10. And, I will grant leave to both parties to approach the listing manager to obtain that date forthwith.

11. I will note that I have dated and initialled a list of documents which is agreed by the parties to be the documents to be read for the purposes of the interim hearing that is to be listed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              29 June 2010