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 of 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

1. 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.

2. 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.

3. 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.

4. 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.

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

6. 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.

7. 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.

8. 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.

9. 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;

    (c)    in payment of any and all adjustments required by law to effect the transfer to the new purchaser;

    (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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atwood & Atwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3943 of 2014

Mr Atwood

Applicant

And

Ms Atwood

Respondent

EXTEMPORE JUDGMENT

1. These are proceedings in relation to parenting and financial issues. 

2. I have delivered several interlocutory judgments in these proceedings.  There were judgments on 11 March 2015 and 23 July 2015 and on several occasions since.  I will not labour the background of the case. 

3. The parties were married in 2002 and separated in 2014.  They have one child, B the child, who was born in 2006 and is 10 years of age.  After separation the child remained with his mother until July 2015.  Initially through an intervention by the NSW Department of Family and Community Services, since then he has lived with his father.  The father retains sole parental responsibility for him.  Sadly, the mother has effectively had no time or communication with the child since then. 

4. The issue today in relation to the child is a very narrow one.  The mother has filed an application and she seeks that the father cause the child to attend language school, which is run by a church at E Town and that he cause the child to attend all services conducted in English at that church in addition to Christmas Day and Easter services.  The Easter services, she says are conducted from Easter Saturday, to Easter Sunday.  The application is opposed by the father and it is not supported by the child’s lawyer. 

5. Decisions about children are made by reference to what is in their best interests. Section 60CC of the Family Law Act 1975 (Cth) sets out the criteria, the things you would look to, to decide what is in a child’s best interests. There has not been any mention or reference to those things in submissions today. The primary considerations are not relevant.

6. As to additional considerations – there is no evidence about any recent expression of the child’s views in relation to this issue.  There is said to have been some expression to a counsellor at some point, but there is no recent indication of his views.  There is simply no evidence about it. 

7. There is a criterion about the practical difficulty and expense of a child spending time with or communicating with a parent.  You might say that was relevant to this issue.  There is some cost associated with the Language school.  There is no evidence as to what that cost is.  Each of the parents asserts that they are under severe financial strain.  The mother indicates that somebody else would pay.  There is no evidence to support that proposition. 

8. There is a criterion about the lifestyle and background including lifestyle, culture and traditions of a child and of either of the parents and other characteristics of a child that are relevant.  I understand the mother’s case to be that she has cultural heritage although she does not observe the religion and does not herself have facility in the language.  Through her grandparents, she says there is an important link to be made with her culture and she wants that maintained for the child.

9. I do not think there is any evidence of it but it is submitted by the mother that the child has in the past, done very well at Language school and that was a source of pleasure and pride for him.  Again by way of submissions the mother indicated that her evidence would be that there were godparents who took up the boy’s cause, people who live in Suburb L, and that they were supportive of him.  The father’s case through his solicitor is that he would support the child attending Language school if that is what the child wants.  It has not come up with the child.  At the end of the day, an order has been made on an interim basis that the father have sole parental responsibility for the child.

10. He has indicated a position about what he would do in respect of this question.  There is no basis identified for separating out this aspect of parenting from any other aspect of parenting that would apply in respect of the father’s responsibility for the child’s upbringing.  These things may well change on a final hearing, of course.  If the child has a facility in the language, no doubt it can be rekindled at a later time.  It may be that if the child has a preference or a yearning or it is otherwise appropriate for him to have a connection with religious observance, then that can happen at a later stage.  These are interlocutory proceedings and it would be a very unusual order to interfere on an interim basis in this way. 

11. Of greater concern is the fact that the mother has not had any time or communication with the child since 2015.  She said something today in her submissions that indicated that she was given advice that she would not be successful in having any time with the child.  I do not know who gave her that advice.  I note that during the period when the Department of Family and Community Services took action under State welfare legislation it offered the mother time with the child and she did not take up that opportunity.  The mother says that there was a mixed communication, and she was given late notice but the answer to that would have involved her getting onto the Department or coming to court in order to restore the offered arrangement.  That was not done.  It is very concerning that the mother has focused on the issues of culture and religion which are no doubt important, but which would seem peripheral to the substantive issue in the case.

12. I do not propose to make the orders sought by the mother.  She indicated to me that she understood that that would be the situation and that she wanted to be able to say that she had tried to fight for the boy’s rights.  I can understand that. 

13. The next issue is in relation to the former matrimonial home which is a property at M Street, Suburb G.  These proceedings started very much in relation to that property rather than about the child.  A number of judges over the years have made orders in relation to having a valuer access the property.  That is one of the first steps in property proceedings.  Orders were made on 3 November 2014, 15 December 2014, 11 March 2015 and 19 May 2015 and they were all unsuccessful in securing access for a valuer.  That finally led to a concern about the boy’s welfare.  The Department did a home visit and, sadly, took the child into care.  He was later placed with the father.

14. Again, sadly, the mortgagee has issued a notice under section 57(2)(b) of the NSW property legislation.  That was issued on 6 February 2017.  The period of grace under the notice expired on 16 March 2017.  The only issue now is what happens about that.  The father would like the parties to conduct a sale of the property and avoid a mortgagee sale.  The mother would prefer that there be a mortgagee sale.  The concept of judicial notice is not without limits but it is not unfair to say that there is a risk that a mortgagee sale will not produce the highest value for a property.  That could arise because, with the best will in the world, the motivation of the mortgagee is to cover the amount that is owing rather than to maximise the value of the property.

15. The mother said some things today about conversations she has had with the mortgagee.  Again, there is no evidence about any of that.

16. The parties’ mortgage started at $289,000 when they bought the property in 2005 and it is now at about $325,000.  There are some issues that the mother wants to raise in relation to how that came about and who is responsible but those are all issues for another day.  It seems to me that the best chance of maximising the value of this property will occur if it is marketed by somebody who wants to maximise the value, if it is presented in a way to maximise the value, and that is likely to be done by somebody who has an interest in achieving the best sale price.  That should be both parties and if the parties cannot cooperate, it should be the father.

17. That leads to a couple of issues.  Firstly, the mother says if it is to be sold, she wants a solicitor rather than the father’s solicitor to have conduct of the sale.  Mr Condon has indicated to the Court that he operates on a flat fee-basis for conveyances of $1,250 plus disbursements.  The mother is concerned that there will be – I will not use the derogatory and pejorative terms that she used – she is worried about additional costs.  If there are additional improper costs, there would be some remedy in relation to that but there is no reason for the husband’s solicitor not to have carriage of the sale.

18. The second issue is the identity of the real estate agency involved.  The mother does not like the real estate agent that the father relies on, saying that he had inappropriate comparable sales, that his information was out of date, and that he is not somebody experienced in the area.  She would prefer a franchise known as N to have conduct of the sale and says that a number of properties in her block have been sold successfully by N at good prices.  Apparently N have an agency at K Pty Ltd and that is in that area.  So unless the parties otherwise agree, I will order that they instruct that agency.  If there is any problem about that, unless the parties can agree on a different agency, they can come back to Court and I can make a decision about it.

19. The next issue is the mother vacating the property.  She says that she has already done that.  She acted on the s 57(2)(b) notice and  removed herself.  She still has possessions in the property, so there will be an issue about them.  I would imagine that the father will want to get into the property and see what needs to be done.  It needs to be in tidy condition for the parties to show it to purchasers and, ultimately, they need to offer vacant possession.  Therefore all of the present content will have to come out.  That is going to be a question, I guess, of the father giving notice of when he proposes to have the items removed, the mother indicating where her possessions would go.  Hopefully, they will be able to sort that out. 

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

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 10 April 2017.

Associate: 

Date:  30 May 2017