Atwood and Atwood - [2017] FamCA 368

FAMILY COURT OF AUSTRALIA

ATWOOD & ATWOOD

[2017] FamCA 368

FAMILY LAW – CHILDREN – Best interests – Interim – Application by the mother that the father cause the child to attend Language school – Where the father has sole parental responsibility and the child lives with him – Where the mother is not currently spending time with or communicating with the child – Application dismissed.

FAMILY LAW – PROPERTY – Interim – Sale of former matrimonial home – Where the mortgagee has given the parties notice that it intends to exercise power to sell the property – Dispute as to private sale or mortgagee sale – Orders made to facilitate the sale of the property.

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Mr Atwood

RESPONDENT:

Ms Atwood

INDEPENDENT CHILDREN’S LAWYER:

Ms Hennessy

FILE NUMBER:

SYC

3943

2014

DATE DELIVERED:

10 April 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

10 April 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Condon Legal Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Ms Atwood in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The mother vacate and remove her personal possessions from the former matrimonial home at M Street, Suburb G in the State of New South Wales within seven days from this date.
That as soon as practicable after complying with order 1 and in any event by 29 April 2017, the mother deliver to N at K Pty Ltd (the agents) all keys in her possession for the Suburb G property.
The parties shall forthwith do all things and sign all documents necessary to cause the Suburb G property to be listed for sale with the agents or with such other real estate agency as they may agree upon in writing for sale by public auction at a reserve price agreed between the parties in writing or in default of agreement, as recommended by the agents.
The parties shall each cooperate in every way with the agents and without limiting the generality of that, by
(a)    making the keys available to the agents;
(b)    allowing inspection of the former matrimonial home at all reasonable times requested by the agent;
(c)    doing or saying nothing to hinder or prevent the sale being effected;
(d)    ensuring the former matrimonial home including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers to the extent that is relevant; and
(e)    signing all documents requested by the agents in relation to the listing for sale except a contract or agreement that is not authorised by the solicitor acting on the sale.
Condon Legal (the solicitors) shall act on the sale of the Suburb G property on behalf of the parties.
The Court notes that the husband’s solicitor has indicated that he will act on the sale of the property for a fee of $1,250 plus disbursements.
The solicitors shall do all things as required to transfer the property…

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.

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Details

Case: [2017] FamCA 368
Decision Date: 10 April 2017

CaseChat Overview and Summary

In the matter of Atwood and Atwood, Loughnan J made orders concerning the former matrimonial home and the future conduct of substantive proceedings. The dispute involved the sale of the former matrimonial home and related financial matters, as well as ongoing proceedings concerning children.

The court was required to determine the terms of the sale of the former matrimonial home, including the timeline for vacating the property, the appointment of agents and solicitors, the process for listing and selling the property, and the disbursement of sale proceeds. Additionally, the court addressed the need for further reports and the progression of the substantive proceedings concerning the children.

Loughnan J ordered the mother to vacate the former matrimonial home within seven days and deliver all keys to the appointed agents. The parties were directed to cooperate in listing the property for sale by public auction, with specific provisions for agreeing on a reserve price and handling situations where the reserve price was not met. The court outlined a detailed process for the disbursement of sale proceeds, including payment of agent commissions, mortgage discharge, legal fees, and the balance to be held in a trust account pending further order. The court also ordered the preparation of a Family Report to address matters under section 60CC of the relevant Act, noting previous reports and the importance of the child speaking with the report writer. The mother's application filed on 17 January 2017 was dismissed.

Orders

Orders of the court

The mother vacate and remove her personal possessions from the former matrimonial home at M Street, Suburb G in the State of New South Wales within seven days from this date.

That as soon as practicable after complying with order 1 and in any event by 29 April 2017, the mother deliver to N at K Pty Ltd (the agents) all keys in her possession for the Suburb G property.

The parties shall forthwith do all things and sign all documents necessary to cause the Suburb G property to be listed for sale with the agents or with such other real estate agency as they may agree upon in writing for sale by public auction at a reserve price agreed between the parties in writing or in default of agreement, as recommended by the agents.

The parties shall each cooperate in every way with the agents and without limiting the generality of that, by

(a) making the keys available to the agents;

(b) allowing inspection of the former matrimonial home at all reasonable times requested by the agent;

(d) ensuring the former matrimonial home including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers to the extent that is relevant; and

(e) signing all documents requested by the agents in relation to the listing for sale except a contract or agreement that is not authorised by the solicitor acting on the sale.

Condon Legal (the solicitors) shall act on the sale of the Suburb G property on behalf of the parties.

The Court notes that the husband’s solicitor has indicated that he will act on the sale of the property for a fee of $1,250 plus disbursements.

The solicitors shall do all things as required to transfer the property to the purchasers name, obtain the parties signatures on the contract and the transfer, and noting that that will be facilitated through the agents.

Neither of the parties may confer on a real estate agent, other than the agents, any right to act on the sale of the Suburb G property, without the written agreement of the other party or an order of the Court.

In the event the property does attain the reserve price at the auction commissioned by the parties and the parties cannot agree on a lesser sale price they are to withdraw the property from sale for a period agreed by the parties or in default of agreement as recommended by the agents and then they shall again list the property for sale by way of public auction at a reserve price recommended by the agents.

10.

Upon settlement of the sale of the Suburb G property the sale proceeds shall be disbursed as follows:

(a) in payment of the agents’ commission and advertising expenses;

(b) in the discharge of the mortgage to the St George Bank;

(d) in payment of the legal fees and disbursements of the solicitors acting on the sale;

(e) in payment of the balance of the net proceeds into the Condon Legal Law Practice Trust Account and then within 10 days into a Commonwealth Bank term deposit account on behalf of the parties, styled “Condon Legal Law Practice Trust Account Controlled Monies Account no. 1 in trust for Mr Atwood and Ms Atwood” to abide further order of the Court or disbursement in accordance with the written agreement of the parties.

11.

In the event that either party refuses or neglects to execute any deed, document, instrument or writing necessary to give effect to these Orders, a Registrar of the Sydney Registry of the Court is appointed pursuant to s 106A of the Act to execute such deed, document, instrument or writing in the name of that party and to do all acts and things necessary to give validity and operation to the deed, document, instrument or writing upon the Registrar being provided with affidavit evidence of such refusal or failure for at least seven days after service of the document at the party’s address for service.

12.

The mother’s Application in a Case filed 17 January 2017 is dismissed.

13.

In relation to the substantive proceedings, a Family Report shall be prepared to address the matters set out in s 60CC of the Act, noting that there are two earlier reports from Dr H and that the Court is particularly concerned that there be an opportunity for B to speak to the report writer prior to the final trial.

14.

The parties shall attend on the family consultant assigned to prepare the Family Report at dates, times and places requested by the Family Consultant and shall also facilitate the attendance of the child.

15.

The proceedings shall be restored to the list on the application of the Independent Children’s Lawyer not later than two weeks after the release of the family report.

16.

The Court requests that the Independent Children’s Lawyer restore the proceedings to the list for the allocation of trial dates at a time convenient to the parties and to the Court, once interview dates are fixed for the family report.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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