Baker and Green and Kettle (No. 3) - [2007] FamCA 1653

FAMILY COURT OF AUSTRALIA

BAKER & GREEN & KETTLE (NO. 3)

[2007] FamCA 1653

FAMILY LAW – CHILD SUPPORT – Arrears – Orders for partial sale of property
FAMILY LAW – COSTS – Application by father wholly unsuccessful

APPLICANT/RESPONDENT:	MS BAKER
APPLICANT/RESPONDENT:	MS GREEN

APPLICANT/RESPONDENT:

MR KETTLE

FILE NUMBER:

(P)BRF

2360
1456

2002

2001

DATE DELIVERED:

7 September 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

O'REILLY J

HEARING DATE:

5 September 2007

REPRESENTATION

MS BAKER:

X Lawyers

MS GREEN:

X Lawyers

MR KETTLE:

Appeared in person

Orders

IT IS ORDERED

Peter John Sheehy, Solicitor, is appointed as trustee (the trustee) for the sale of the properties listed in annexure A to pay:

(a)the amount referred to in paragraph 15 of the orders made by the Honourable Justice Bell on 24 November 2006 in proceedings BRF2360/2002 namely $113,350 to X Lawyers and
(b)the amount referred to in paragraph 10 of the orders made by the Honourable Justice Bell on 24 November 2006 in BRF1456/2001 namely $125,140 to X Lawyers and
(c)the several costs orders referred to in paragraph 7

and those properties vest in the trustee for the purpose of sale.

After the vesting but prior to any sale or listing or advertising for sale, the trustee, after:
(a)consulting with Mr Kettle as to which contiguous or non contiguous lots it would be desirable for him to retain to continue his business of a farm and maintain his home;
(b)ascertaining which of the lots are subject to mortgage and the amount necessary to pay out any mortgage to give clear title of any lot to a purchaser; and
(c)obtaining such valuations as the trustee considers appropriate
prepare a brief report to the Court setting out his opinion as to which lots should be sold to pay the amounts referred to in paragraph 1.
After the sale of such lots and the payment in full of the amounts referred to in paragraph 1 the lots not sold revest in Mr Kettle.

The trustee has liberty to apply to the Court by arrangement with the Associate and on notice to the parties for such further orders or directions as he may require, including as to his report and the mode or manner of sale including any auction or auctions.

After the sale of the lots to be sold the trustee apply the proceeds of sale in such order and priority as he sees fits (whether at the settlement of any sale or sales or subsequently) as follows:

(a)any mortgages, rates, taxes, expenses and outgoings necessary to give clear title
(b)the costs of sale including agent’s costs, commission and auctioneer’s costs if any
(c)the trustee’s own costs
(d)$113,350 to X Lawyers
(e)$125,140 to X Lawyers
(f)$50,000 to be held by the trustee for the purpose of the payment of the costs orders referred to in paragraph 7
(g)the balance if any to Mr Kettle.

Upon payment of the amounts of $113,350 and $125,140 to X Lawyers they must hold those…

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: [2007] FamCA 1653
Decision Date: 7 September 2007

CaseChat Overview and Summary

In proceedings before O'Reilly J, the court considered applications involving Mr Kettle, Ms Baker, and Ms Green. The central dispute concerned the sale of properties to satisfy various financial obligations, including substantial sums owed to X Lawyers, which were intended for child support for Ms Baker and Ms Green's children, as well as numerous costs orders against Mr Kettle. The court's primary concern was to facilitate the orderly sale of specified properties and the distribution of the proceeds to meet these outstanding debts.

The legal issues before the court were to determine the appropriate mechanism for the sale of Mr Kettle's properties, the order of priority for the distribution of sale proceeds, and the specific amounts and recipients of those proceeds. This included clarifying the payment of sums to X Lawyers for child support, the satisfaction of various costs orders made against Mr Kettle in prior proceedings, and the ultimate disposition of any remaining balance. The court also had to consider Mr Kettle's own applications, some of which were refused.

O'Reilly J ordered the appointment of Peter John Sheehy, Solicitor, as trustee for the sale of the properties listed in Annexure A. The trustee was directed to consult with Mr Kettle regarding which lots he might wish to retain for his farming and home, ascertain mortgage details, and obtain valuations before preparing a report to the court on which lots should be sold. The proceeds of sale were to be applied first to necessary expenses to give clear title, then costs of sale, the trustee's costs, the sums of $113,350 and $125,140 to X Lawyers, a sum for other costs orders, and finally any balance to Mr Kettle. The court also made specific orders regarding the payment of various costs orders against Mr Kettle and dismissed some of his applications, ordering him to pay costs in relation to those applications.

Orders

Orders of the court

IT IS ORDERED

Peter John Sheehy, Solicitor, is appointed as trustee (the trustee) for the sale of the properties listed in annexure A to pay:

(a) the amount referred to in paragraph 15 of the orders made by the Honourable Justice Bell on 24 November 2006 in proceedings BRF2360/2002 namely $113,350 to X Lawyers and

(b) the amount referred to in paragraph 10 of the orders made by the Honourable Justice Bell on 24 November 2006 in BRF1456/2001 namely $125,140 to X Lawyers and

and those properties vest in the trustee for the purpose of sale.

After the vesting but prior to any sale or listing or advertising for sale, the trustee, after:

(a) consulting with Mr Kettle as to which contiguous or non contiguous lots it would be desirable for him to retain to continue his business of a farm and maintain his home;

(b) ascertaining which of the lots are subject to mortgage and the amount necessary to pay out any mortgage to give clear title of any lot to a purchaser; and

prepare a brief report to the Court setting out his opinion as to which lots should be sold to pay the amounts referred to in paragraph 1.

After the sale of such lots and the payment in full of the amounts referred to in paragraph 1 the lots not sold revest in Mr Kettle.

The trustee has liberty to apply to the Court by arrangement with the Associate and on notice to the parties for such further orders or directions as he may require, including as to his report and the mode or manner of sale including any auction or auctions.

After the sale of the lots to be sold the trustee apply the proceeds of sale in such order and priority as he sees fits (whether at the settlement of any sale or sales or subsequently) as follows:

(a) any mortgages, rates, taxes, expenses and outgoings necessary to give clear title

(b) the costs of sale including agent’s costs, commission and auctioneer’s costs if any

(d) $113,350 to X Lawyers

(e) $125,140 to X Lawyers

(f) $50,000 to be held by the trustee for the purpose of the payment of the costs orders referred to in paragraph 7

(g) the balance if any to Mr Kettle.

Upon payment of the amounts of $113,350 and $125,140 to X Lawyers they must hold those amounts in separate trusts for each of Ms Baker and Ms Green respectively to be paid to or at their written direction for the purpose of being used for child support for the children as intended and ordered by the Honourable Justice Bell.

The costs orders to be paid by the trustee are:

(a) $1,100 costs Mr Kettle was ordered to pay Ms Baker and $1,100 costs Mr Kettle was ordered to pay Ms Green by paragraph 7 of the orders made in each matter by Registrar Gassner on 9 September 2005

(b) $200 costs Mr Kettle was ordered to pay Ms Baker and $200 costs Mr Kettle was ordered to pay Ms Green by paragraph 7 of the orders made in each matter by Judicial Registrar Smith on 5 July 2006

(c) the costs Mr Kettle was ordered to pay Ms Baker and Ms Green by paragraph 2 of the orders made in each matter by the Honourable Justice Barry on 4 April 2007

(d) the costs Mr Kettle was ordered to pay Ms Baker and Ms Green by paragraph 5 of the orders made in each matter by the Honourable Justice O’Reilly on 14 June 2007 (as amended)

(e) the costs Mr Kettle was ordered to pay X Lawyers by paragraph 8 of the orders made in proceedings BRF2360/2002 by the Honourable Justice O’Reilly on 14 June 2007 (as amended)

(f) any costs orders which may be made by the Honourable Justice O’Reilly either today or on another date relating to the costs of Ms Baker’s and Ms Green’s enforcement proceedings (child support and cost orders) and the application in a case filed by Mr Kettle on 7 September 2007

(g) any costs orders which may be made by the Honourable Justice Bell (or another Judge) in relation to the trial before him on 13-17 November 2006, the applications for which on 17 August 2007 were by orders of the Full Court remitted to the Honourable Justice Bell for hearing, now listed before him on 20 September 2007

provided that all costs orders except those referred to in (a) and (b) be paid by the trustee only upon the presentation to him of cost assessment orders signed by a Registrar and issued under the seal of the Court.

Mr Kettle pay Ms Baker’s and Ms Green’s costs of and incidental to their amended applications in a case filed on 13 June 2007 (originals filed on 17 May 2007) to be assessed on the standard basis and payable by Mr Kettle upon the issue of cost assessment orders signed by a Registrar and issued under the seal of the Court.

The Regional Registry Manager of the Brisbane Registry of the Family Court of Australia make all necessary arrangements with the National Transcription Service (NTS) for Mr Kettle to purchase from it audio CDs of any proceedings in which Mr Kettle is or has been a party which Mr Kettle may in writing request, the cost of such purchase or purchases to be paid by Mr Kettle to NTS.

10.

Otherwise, the orders sought by Mr Kettle in annexure A to each of his affidavits filed on 13 June 2007 and 5 September 2007 are refused.

11.

Mr Kettle’s application in a case filed today is dismissed.

12.

Mr Kettle pay Ms Baker’s and Ms Green’s costs of and incidental to Mr Kettle’s application in a case filed today fixed in the amount of $270.

13.

Ms Baker’s and Ms Green’s costs applications in relation to the trial before the Honourable Justice Bell on 13-17 November 2006 be listed for hearing before the Honourable Justice Bell at 10am on 20 September 2007.

Annexure A

Lot 104

G 1

Lot 105

G 2

Lot 106

G 3

Lot 1

G 4

Lot 1

G 5

Lot 12

G 6

Lot 1

G 7

Lot 28

G 8

Lot 2

G 9

Lot 1

G 10

Lot 1

G 11

Lot 1

G 12

Lot 1

G 13

Lot 2

G 14

Lot 1

G 15

Lot 1

G 16

Lot 1

G 17

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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