Bailey and Bailey (No 2)

[2018] FamCA 632

FAMILY COURT OF AUSTRALIA

BAILEY & BAILEY (NO. 2) [2018] FamCA 632

FAMILY LAW – PROPERTY – Application by wife seeking a variation of a property order – Whether variation was of a substantive, consequential or mechanical order – Question of whether the Court has the power to grant a variation of such an order – Provision for sale of home if election not made by wife – Orders made granting variation of property order.

Family Law Act 1975 (Cth)

Bebbington & Bebbington [2017] FamCAFC 31

APPLICANT: Mr Bailey

RESPONDENT: Ms Bailey

FILE NUMBER: HBC 958 of 2016

DATE DELIVERED: 19 July 2018

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 19 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W Ayliffe SC

SOLICITOR FOR THE APPLICANT: Blissenden Lawyers

COUNSEL FOR THE RESPONDENT: Mr M Trezise

SOLICITOR FOR THE RESPONDENT: Dobson Mitchell Allport

Orders

1. In relation to the costs applications filed on 5 June 2018 and the subsequent costs applications in a case in reply the Court amends the Chambers order made 5 July 2018 and provide:-

   (a)the respondent wife shall file and serve any response to the applicant husband’s applications in a case and any affidavit in support of that response by 2 August 2018;

   (b)on or before 16 August 2018 the applicant husband shall file and serve any response to the respondent wife’s material and any affidavit in support of that response together with written submissions in support of the costs applications;

   (c)on or before 30 August 2018 the respondent wife may file and serve any written submissions in responses; and

   (d)on or before 7 September 2018 the applicant husband shall file and serve any brief written submissions in reply.

2. In relation to the application in a case filed 11 July 2018 the applicant husband shall deliver to the respondent wife’s legal practitioners, within seven (7) days of the date of this order, the signed Transfer held by the husband’s legal practitioner for the property situate at M Street Suburb T in Tasmania.

3. The Transfer will be held by the respondent wife’s legal practitioners upon trust and in escrow pending compliance with the orders of 9 May 2018 which are extended for twenty eight (28) days from the date of this order.

4. Upon handing over that Transfer the solicitors for the respondent wife will collect a bank cheque in favour of the applicant husband or his nominee in the sum of $19,491 and on the day of settlement shall cause that bank cheque be delivered to the offices of the applicant husband’s solicitor.

5. The operation of this order is stayed until 4.00pm Thursday 26 July 2018.

IT IS NOTED

1. If a Notice of Grounds of Appeal is lodged and the applicant husband seeks a further stay of these orders he should file and serve on or before 4.00pm Tuesday 12 July 2018 an application in a case together with any affidavit in support which is to be listed before this Court at Launceston at 9.00am Friday 27 July 2018 and the respondent wife is to file any affidavit material on or before close of business Thursday 26 July 2018.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Bailey & Bailey (No.2) 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)

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FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBC 958 of 2016

Mr Bailey

Applicant

And

Ms Bailey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. In the matter of Bailey & Bailey, there is an application in a case by Ms Bailey (‘the wife’) essentially seeking to extend time to settle the acquisition of a property at Suburb T (‘the Suburb T property’).  The orders she is seeking are that Mr Bailey (‘the husband’) deliver to the wife’s legal practitioners the signed transfer in respect of the Suburb T property.  Further, that the transfer to be held by the wife’s legal practitioners in escrow pending the wife’s compliance with paragraphs 1(a) as adjusted by paragraph 2(a) and 1(b) of the order dated 9 May 2018 and further other consequential and/or machinery orders as the Court considers appropriate.  The relevant orders provide:-

   1.The wife may elect to acquire the husband’s interest in [the Suburb T property’] and in the event that she does:-

   (a)the wife pay to the husband the sum of $50,434 within 60 days from the date of these orders;

   (b)upon such payment and the wife will secure the release of the husband from his personal guarantees and covenants in respect of the mortgage to [Q Bank] of about $414,131 over the [Suburb T] property;

   (c)the husband shall at the same time transfer his interest in the [Suburb T] property to the wife;

   (d)should the wife not make the election or pay the said sum to the husband and/or fail to secure the husband’s release from the mortgage, then order 3 shall apply instead of the provision for payment and vesting of property to the wife provided by this Order; and

   (e)any such acquisition under this order is to be regarded as an acquisition pursuant to the Family Law Act 1975 (Cth).

   2.The husband shall pay to the wife the sum of $30,943:-

   (a)within 60 days from the date of this Order if the wife complies with order 1 above (and the sum of $30,943 may be deducted by the wife from the sum she would otherwise pay to the husband under Order 1); or

   (b)if the wife does not comply with Order 1 then the husband shall pay the said sum out of his share of the proceeds of sale of the [Suburb T] property, if it is sold pursuant to Order 3. 

   3.Within 65 days from the date of these Orders the parties do all acts to sell the properties at [U Street, P Town] (‘the [P Town] Property’) and the [Suburb T] property (unless the wife has complied with Order 1 above in which case this Order will only apply to the [P Town] property ) and:-

   (a)The selling agent for the property/properties shall be such selling agent or agents as the husband and wife may from time to time agree or in default of such agreement:-

   (i)Either the husband or the wife may request the President for the time being of the Real Estate Institute of Tasmania or his nominee (hereinafter referred to as ‘the arbitrator’) to determine the matter in dispute; and

   (ii)The costs of the arbitrator’s determination shall be borne equally between the husband and wife.

   (b)The listed sale price or reserved price and method of sale and manner of advertising for sale of the property/properties shall be as agreed between the husband and wife and in default of such agreement:-

   (i)     Either the husband or the wife may request the President for the time being of the Real Estate Institute of Tasmania or his nominee (hereinafter referred to as ‘the arbitrator’) to determine the matter in dispute; and

   (ii)    The costs of the arbitrator’s determination shall be borne equally between the husband and wife.

   (c)In the event that the property/properties are offered for sale by way of auction the husband and wife shall each pay and be responsible for the payment of one-half of the auctions expenses.

   (d)Both the husband and wife shall co-operate in every way with the selling agent in relation to the sale of the property/properties, including allowing inspection of the property/properties at times reasonably requested by the selling agent and will ensure that the property/properties are in a neat and clean condition at the time of inspection by the prospective purchasers.

2. There is also an application for costs.

3. The wife’s application arises out of orders made by this Court on 9 May 2018 which provide that the wife may elect to acquire the husband’s interest in the Suburb T property as set out in orders 1, 2 and 3 as set out above.

4. If an election was made by the wife the orders required, amongst other things, a payment to the husband of $19,491 within 60 days of the date of the 9 May 2018 order.

5. The wife has come to the Court asserting to that because of circumstances beyond her control there was a delay of some two or three days in terms of the completion of that transaction.  The wife seeks an extension of time, so that that property transaction can proceed.  The wife says that the variation to the order, or the change to the order is of a consequential or a machinery nature which ought be made by this Court given the circumstances of the case.

6. The husband, on the other hand, says that as a consequence of the settlement not occurring in accordance with the orders of 9 May 2018, and that settlement occurring presumably on 9 or 10 July 2018, the application by the wife is, in essence, in regard to the substantive orders is beyond the powers of this Court, the matter having been finalised by final orders.

7. I decided to deliver reasons extempore today on the basis of a number of urgent issues which arise in this case.

8. The first is that the wife has entered into a contractual arrangements with her brother, to which I will refer later, in which she asserts that she has already passed the equitable interest in the property to her brother and seeks to complete that transaction.

9. The second is that there is finance in place though her brother and she is presently able to settle.  There is some urgency in respect of this matter, both on the part of the wife and the part of the husband.

10. In giving these reasons I reserve the right to go back and correct English, correct obvious misstatements and to make the document read sensibly in a written sense.  Although, I will not in any way, change any of the substance of the matters which I will set out in these reasons.

BACKGROUND

1. The wife and husband were engaged in property proceedings, which were heard by me on 29, 30 and 31 January 2018.  Each of the parties were represented by counsel:  the husband by Mr Ayliffe of senior counsel and the wife by Mr Trezise of counsel.  Both parties were represented by these same counsel today.

2. On the January 2018 hearing of the property proceedings the parties it was an agreed fact that the Suburb T property was valued at $515,000.  The parties invited the Court to accept that amount as the value of the Suburb T property.  This Court adopted that course as set out paragraph 200 of the reasons given by me on the 9 May 2018 (‘the substantive reasons’).  It is of value to look at the background of the valuation of that property.

3. It is an agreed fact that the property was valued by a single expert in March 2017 (about 10 months before the final hearing) at $515,000 and the parties both asserted that value at hearing.  There is evidence before me, filed on behalf of the husband, that since March of 2017 the Suburb T property has, subject to proper inspection, increased in value from $515,000 to $615,000.  It was open for the parties to raise the question of valuation at or shortly before the hearing.  Further, it was open to the parties to seek to re-open their cases in the period between 31 January 2018, when the judgment was reserved, and 9 May 2018 when judgment was delivered.

4. It is clear from the evidence in the wife’s affidavit that the parties were given notice that the judgment was to be delivered.  The judgment was delivered and orders were made orally on 9 May 2018.  At the same time leave was given, for a short period of time for, to the parties to apply to the Court if there were any mechanical issues regarding the form of the order contained in the substantive reasons.  Consequently, there being no application in that respect, the orders made 9 May 2018 were perfected and issued onto the Court’s electronic site on 17 May 2018.

5. In terms of this application, the wife relied upon:-

   (a)her application in a case filed 11 July 2018; 

   (b)her affidavit sworn 11 July and filed the same day; 

   (c)the annexures to her affidavit, which are Exhibit 1 to these proceedings; and

   (d)an affidavit of her brother filed 17 July 2018.

6. The husband filed a response seeking orders that the wife’s application be dismissed and an order that the wife pay his costs.  He sought, in the alternative, that there be some stay if the Court determined contrary to the husband’s approach.  The Court was assisted with an outline of submissions which was tendered in evidence as to the submissions and not as to the facts asserted therein.  These are Exhibit E2.

7. The proceedings came before me on 12 July 2018 and were adjourned to 19 July 2018 to enable the parties to prepare and file any further material, including to enable the husband to file the valuation evidence.

8. In terms of the history of this matter I have had regard to that history set out in the substantive reasons published on 9 May 2018 which were before me.  I have also had regard to the orders made on 9 May 2018 and perfected on 17 May 2018.

ISSUES

1. It is agreed between senior counsel and counsel for the parties that the Court has two questions to determine.

2. The first question is whether this Court has power to grant that extension of time or make those orders sought by the wife.  It is a question of whether what is sought is a substantive change to the orders or whether, on the other hand, it is a consequential or mechanical change. 

3. If the first question is answered in the affirmative, the second question is whether time should be extended, given the circumstances of these proceedings.

DISCUSSION

1. There was some criticism of the wife in terms of her affidavit material and I note that this material was relied upon and read without objection as were the admission into evidence of the annexures to that affidavit.  No evidence was filed in reply.  I have treated the wife’s affidavit material as being uncontentious.  Similarly, I have treated the material contained in the affidavit of Mr FF, (‘the valuer’) and the wife’s brother as being uncontentious.

2. What happened after the orders were made is contained in the wife’s affidavit and in Exhibit 1.  It seems not in issue that the order made by this Court was downloaded by the wife’s legal representatives on about 31 May 2018.  On the same day the wife entered into a written agreement with her brother to sell the Suburb T property to him for $440,000.  On the evidence of the wife, this was to be part of an informal family arrangement, whereby the wife and her three children would remain in that house and pay some form of rent, equivalent to the loan repayments.  There is no evidence of any of the documentation of the broader informal arrangement.  They were decisions for the wife to make in the circumstances in which she found herself after the determination of this Court and after the orders that were made.

3. That contract was expressed to be subject to the wife’s brother obtaining finance within 21 days.  There was argument as to whether finance had or had not been approved.  On reading all of the material in Exhibit E1, the annexures to the wife’s affidavit, it is clear that the Commonwealth Bank has approved finance to the wife’s brother and the Court is easily able to infer that from the relevant communications.  The issues that remained outstanding for the Bank seemed to be more issues of documentation of the loan, rather than the approval of the loan.  It is not unusual that once the loan is approved, parties are required to do numbers of things, including provide undertakings from time to time, provide transfers, and, of course, on settlement, provide title deeds and discharges of mortgage.

4. On 6 June 2018 the wife’s solicitors wrote to the husband’s solicitors saying:-[1]

   Please find enclosed transfer to be executed by your client in accordance with the Family Court Orders …. 

   We also enclose [Q Bank] discharge authority for your client’s signature.  Can you please return the signed authority to our office as soon as is possible, so we can instruct the bank to prepare a discharge of mortgage in readiness for the settlement on 4 July 2018.

   [1] Exhibit 1.

5. I am satisfied that this correspondence and other correspondence between the wife’s conveyancers, solicitors and the husband’s solicitors show explicit election by the wife to acquire the husband’s interest in the Suburb T property.  I accept the submission made by counsel for the wife that such election was made.

6. It is clear from the correspondence from the husband’s legal practitioner to the wife’s conveyancer, including the communication of 2 July 2018 and an earlier email, that that election by the wife was accepted on behalf of the husband. 

7. On 18 June 2018 the solicitors for the husband wrote to the wife’s solicitors enclosing the Q Bank mortgage discharge authority signed by the husband.  On 8 June 2018 the mortgagee sent details of the discharge to the wife.  There seems to have been some concern by the solicitor for the husband as to why the discharge reason was marked “sale”.  On 29 June 2018, shortly before the anticipated settlement date, the solicitor for the husband sought confirmation of his earlier request that the discharge should be of both mortgages, that is over a Suburb T property and an P Town property, and sought an answer in relation to the expression “sale”.  A transfer was prepared and signed for the transfer of the husband’s interest in the Suburb T property to the wife.

8. In a communication of 29 June 2018, the conveyancer for the wife indicated that the settlement would only be discharging the mortgage on the Suburb T property, and that they would be providing the husband with a discharge of that mortgage and a bank cheque for $19,491.  The wife’s conveyancer expressed some concern about the Bank being ready for settlement.

9. On 2 July 2018, shortly before the final date, the solicitor for the husband expressed for the second time that both mortgages needed to be discharged.  Further, the communication on the husband’s behalf noted that in anticipation of the settlement the husband had cancelled the joint insurance on the Suburb T property.

10. On 18 June 2018, the solicitor for the husband had indicated that they held a signed transfer.

11. There was then correspondence with the finance broker indicating some difficulties with the loans, including delay by Australia Post and subsequently, a requirement by the Commonwealth Bank for undertakings from the wife’s and her brother’s solicitors in relation to any requisitions that arise in respect of the transfers.  These were matters which are not unusual in conveyancing transactions, including the documentation following approval of loans.

12. Following the request of the husband’s solicitors, efforts were made, and it seems were eventually successful, to obtain a discharge of the mortgage over the P Town property.

13. They were told by the outgoing mortgagee on 3 July 2018 that there would be a $250 discharge fee.

14. There was some issue in relation to the adjustment of rent on the P Town property.

15. As a consequence of all of those matters occurring at that time, practical arrangements could not be made for the matter to settle on Monday 9 July 2018.  The wife’s conveyancer and her brother made arrangements for the settlement to occur later that week.  At that point in time, the husband, through his solicitors, asserted that, given that the settlement did not occur within the time provided in the orders, that the right of the wife to take the title was effectively extinguished.  Further, that the Suburb T property ought to be sold in accordance with the other orders made on 9 May 2018 as if no election had been made.

1. The matter came before me promptly that week and was stood over until 19 July 2018 for determination.

2. I am satisfied, for the purpose of this application, that the wife had in place finance and other arrangements necessary to take title of the Suburb T property on 9 July 2018.  I am satisfied that she was ready, willing and able to complete that transaction on or about 11, 12 or 13 July 2018.  I am satisfied that the husband sought additional requirements shortly before settlement in terms of the discharge of mortgage over the P Town property.  I am satisfied that the delay arose, not as a consequence of that, but as a consequence of the whole of the events that were taking place at that time.  What do I make of this?

3. The intent of the substantive orders were clear.  Those orders clearly provide that if the wife wished to acquire the husband’s interest in the Suburb T property, she may elect to do so.  The wife made that election. 

4. There are a series of decisions in relation to extension of time and in relation to whether it is a substantive or a mechanical or a consequential change.  I have been taken to the decision by the Full Court comprising Lindenmayer, Nygh and Graham JJ in Bray & Bray (1988) FLC 91-968. I have had regard to the submissions made by senior counsel for the husband in relation to that decision the principles of which were confirmed by the Full Court in Slapp & Slapp (1989) FLC 92-022.

5. This question was recently considered by Kent J exercising the appellate jurisdiction of the Family Court in Bebbington & Bebbington [2017] FamCAFC 31 where his Honour observed at paragraphs 37 to 44:-

   37.It is now well settled that the power of the Court to alter property interests is “a once and for all proposition” (Slapp and Slapp (1989) FLC 92-022 at 77,360 (“Slapp”)) and no power lies to alter the substantive provisions of a s 79 property settlement order (see Taylor v Taylor (1979) FLC 90-674). Despite this, the Court has power to vary the “consequential” provisions of an order made pursuant to s 79 of the Act (see Ravasini and Ravasini (1983) FLC 91-312 (“Ravasini”)).

   38.In Ravasini, the Full Court considered the nature of consequential orders, from 78,126:

   There is no question of the power of the Court to make what we would with respect suggest is more properly called a consequential order. The real questions are what is the proper definition of a consequential or machinery order and where is the dividing line between a consequential order which may be varied or modified and a substantive order which the Act gives no power to the Court to modify or vary…

   …

   It is appropriate then to look at what a consequential order is. The Shorter Oxford Dictionary defines “consequential” as meaning “Following esp. as an effect, immediate or eventual, or as a logical inference”.

   The Universal English Dictionary defines the word as “Following as a consequence, on what has gone before, resultant: consequential alteration in wording of a document, those made necessary by others already made.” The same dictionary defines “consequence” as “Event which follows upon something else which is, or appears to be, the cause; a result, outcome of what has gone before.”

   A consequential order then, in a property matter, would include an order following logically or of necessity from a prior substantive order.

   What a consequential order is not is an order the effect of which is to vary the prior order for property settlement. It is not possible to suggest that even the slightest variation of the original order is a consequence of it. What is being submitted in this appeal is that the original order should be amended not as a consequence of that order itself, not as a necessary follow up of that original order but rather as a consequence of events which have happened in the market place since that order was made rendering the facts on which it was based no longer accurate.

   Whether what is to be done is termed a consequential order or a machinery order the result is the same. The Court has no power to vary the original order. It has power to enforce the order and to modify the machinery provisions of the order to effect enforcement provided that by so doing it does not affect the substantive rights of the parties. That power can also be used to spell out the effect of the order where that is not clear.

   39.It is argued by counsel for the husband that the orders ultimately made by her Honour vary the substance of the s 79 orders and “go further than just giving effect to the Original Orders”.

   40.In Slapp, the Full Court considered an appeal against orders varying the time for compliance with the transfer of property.  In that case, there was a provision in the relevant orders which appointed the appellant as the trustee for sale of real property, which appointment was only discharged on the respondent meeting the financial obligation by a certain date.  The respondent brought an application to seek to extend that date.

   41.Nygh J (with whom Fogarty and Bulbeck JJ agreed) observed:

   As counsel for the wife has pointed out, this Court in Bray and Bray (1988) FLC 91-968; 12 Fam. L.R. 563, held in an almost identical situation that an order which substitutes an alternative order if certain preconditions are not fulfilled by a certain time, confers upon the beneficiary of that order a substantive right. In other words, the orders as originally framed by his Honour … provided that if the money was not paid by 11 July 1988 or such further time as the parties might by agreement extend – there would be vested in the wife a substantive right of quite a different kind to that provided for in the first alternative.

   … [T]his meant that on 30 September 1988 the wife became entitled pursuant to the orders, as amended by consent, to a quite substantively different entitlement, not merely as a matter of legal right, but also as a matter of substantive consequence…

   In my view that situation falls fairly and squarely within the scope of the earlier decision in Bray and Bray. It cannot be described as merely a change of machinery but it had the effect of depriving the wife of a right of substance which the earlier orders of the court, as amended, had vested in her.

   42.I do not accept the submissions on behalf of the husband that the orders made by her Honour varied the substantive rights of the parties.  Particularly, I note the terms of Order 35 of the consent orders, which provided:

   Should the Applicant fail to refinance the mortgage secured against the [Northern New South Wales] property, the [Northern New South Wales] Property [sic] is to be sold in accordance with Orders 36 to 39 (inclusive) below.

   43.This position is clearly distinguishable from the case of Slapp, in which the orders provided for the appellant to be appointed as trustee for sale in default of the payment of monies.  However, in the instant case, no substantive rights are conferred on the husband in the event the property failed to be transferred within the 45 days provided by the orders.  The substantive right was conferred on the husband in the event the wife failed to refinance the mortgage secured against that property.  As such, extending the time for the transfer to be effected did not alter the right of the husband to seek the sale of the property if the wife was unable to refinance the mortgage.

   44.In my judgment it is tolerably clear that the substantive alteration of property interests pursuant to s 79 of the Act effected by the consent orders is as earlier identified, that is, the transfer of the husband’s interest to the wife in the Northern New South Wales property; the extinguishment of the husband’s liability to the existing mortgagee and assumption of that liability by the wife via refinancing; and the payment of the sum of $33,000 by the wife to the husband.  It is likewise tolerably clear, in my judgment, that the mechanisms as to timing and steps were purely machinery or consequential provisions to effect the substantive alterations of property interests being carried out. 

6. In that regard, his Honour quoted from Ravasini (supra), as set out in paragraph 38 of his Honour’s reasons.

7. It is, in its essence, a question of construction as to whether, the failure of the settlement on 9 or 10 July 2018 is such as to presumably vest the interest in the Suburb T property into the husband, or whether it is as a consequential order and, using the words of counsel for the wife, where time is not of the essence.

CONCLUSION

1. In my view, the circumstances in this case differ from those in Slapp (supra) and in Bray (supra).  In this case, the wife had clearly made her election to acquire the Suburb T property.  In doing so, she acquired the equity in the Suburb T property upon making that election.  She put in place arrangements to finance the acquisition of that property.  It may well be that those arrangements are not the best in the world or not the worst in the world, but they were the arrangements which the wife put in place.  The arrangements were to acquire the property, and to enter into some form of arrangement with her brother, including a written agreement to sell the property to him so that she and her three children would have a home to live in which was, in essence, one of the significant features of her application.  Her desire for the right to acquire the Suburb T property was contained in the case outline that was submitted, although in a much greater context on final hearing.

2. This is not a matter where finance had been rejected or had not been made available.  I am satisfied that arrangements for finance were in place.  Further, I am satisfied, on the evidence, that finance would have been available to settle the matter later in the week.

3. I am satisfied that the Court must have, in those circumstances, the power to make consequential orders or machinery orders when events such as that occur to enable the arrangements to be put in place.

4. It was put to me by senior counsel for the husband that the time was an absolute time.  It was put to me by counsel for the wife that the time was not absolute and could not be readily regarded as being of the essence.  For the purpose of these parties in their circumstances, I am satisfied that the extension of time for a mere two or three days was simply consequential or mechanical.  It is not, as was asserted by senior counsel for the husband, as the edge of the cliff.

5. The increase in value of the property, it would seem to me, has little impact in respect of the first decision.  For it is clear on the evidence that both the husband and the wife were ready to settle on or about 3 July 2018.  No issue was raised as to the increase in valuation of the Suburb T property at that time.  If the husband had a significant concern about the valuation, as I said earlier, he could have raised that in the hearing or in advance of the hearing, or could have, in the circumstances of this case, applied to have the case reopened and adduce further evidence of valuation prior to 9 May 2018.

6. Therefore, I find the 60 days in the circumstance of this case to be mechanical or consequential.  I find that it is not substantive.

7. I make no criticism of the wife in terms of the family arrangements.  That was entirely a matter for her.  Her best interests are not a factor in either the determination of the first question or the second question.

8. In relation to the second question, as to whether I should exercise a discretion, I am satisfied that the wife made the election.  I am satisfied that the wife used her best endeavours and engaged professionals to assist her to ready the matter for settlement.  I am satisfied that issues arose shortly before the settlement which delayed it for a matter of a few days after the expiration of the 60 days.  The structure of the order was to make available to the wife the home and that is the substance; if she was able to put in place arrangements, which she had in fact put in place arrangements in advance of that date.  I am satisfied, given the submissions of counsel for the wife, that my discretion should be exercised and I should increase the time to enable the settlement to occur promptly.

9. There are two matters that follow from this.  The first is a very fair submission made by senior counsel for the husband that this Court ought not to put in place orders which would lead to any appeal being nugatory.  It is an unusual request and normally courts do not give stays in advance of appeal.  This should not be taken as an encouragement to appeal or a discouragement from appealing.  However, it seems to me that the law in relation to this matter is in somewhat of a state of flux and, as I have followed the reasoning of Kent J in Bebbington (supra) in the circumstances of this case, I intend to prevent the wife from settling the transaction for a period of seven days from today’s date.  That will give the husband time to consider whether he wants to lodge an appeal or not.  If he does, he would need to do so very promptly.  The matter could be listed before me Thursday of next week, again in Launceston, to consider a stay in the light of a lodged appeal.  This should not be taken to be an indication that I will or will not grant the stay.  I will need to consider that in the light of any evidence that is before me at that time.

10. The second issue which I propose to address is in relation to costs.  An application for costs was filed on behalf of the husband on 5 June 2018 or thereabouts.  I did not read the affidavits of the husband, but I made orders on 5 July 2018 for the provision of submissions and further evidence in relation to costs.  It would seem to me that, there being costs arguments in relation to this, those costs arguments ought to be dealt with simultaneously.  So as a result, I will change those orders made on 5 July 2018. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 19 July 2018.

Associate:     

Date:              21 August 2018