Baxter and Baxter

[2008] FamCA 751

FAMILY COURT OF AUSTRALIA

BAXTER & BAXTER [2008] FamCA 751

FAMILY LAW – PROPERTY – Sale of overseas property

Family Law Act 1975 (Cth)

APPLICANT: Mr Baxter

RESPONDENT: Ms Baxter

FILE NUMBER: SYC 5514 of 2007

DATE DELIVERED: 24 April 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 24 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blackah

SOLICITOR FOR THE APPLICANT: Watson and Watson Solicitors

COUNSEL FOR THE RESPONDENT: Ms Langley

SOLICITOR FOR THE RESPONDENT: Uther Webster & Evans, Solicitors

Orders

1. That except as otherwise ordered herein or as the parties may agree in writing, the wife shall have carriage on behalf of the parties of the sale of the property in New Zealand.

2. For the purpose of that sale the parties shall do all acts and things and sign all documents necessary to appoint Mr P, Real Estate Agent from New Zealand, as sole agent on the following terms and conditions:

   (a)that the property be forthwith listed for sale by auction to be held within 6 weeks after that listing.

   (b)that the reserve price be a price agreed between the parties in writing within 7 days from today’s date and in default of agreement shall be a value fixed by L Valuers Limited on an as is basis.

   (c)in the event that it is necessary to instruct L Valuers Limited to value the property the wife shall do all things and sign all documents to instruct L Valuers Limited to provide that opinion both on the basis of a sale as is, and also on the basis of a sale following the completion of the work recommended by Mr C in his affidavit sworn 9 April 2008.

   (d)the costs of the auction and the marketing of the property for auction shall be met unless the parties agree to the contrary from the parties’ Farm Overdraft Account with the ASB Bank up to a maximum of NZ$25,000.

   (e)the wife shall forthwith appoint a maintenance contractor to clear and maintain the grounds of the property in preparation for the sale and shall cause a payment the maintenance contractor up to a maximum of NZ$10,000 or such further sum as the parties may agree from the parties’ Farm Overdraft Account with the ASB Bank account.

   (f)in the event that the property achieves its reserve price the parties shall do all things and sign all documents necessary to complete that purchase and in the event that the property does not reach the reserve price, the parties shall negotiate with the highest bidder or any interested persons and unless they agree to the contrary shall sell the property at a price that is not less than 90% of the reserve price and shall then do all things and sign all documents necessary to complete that purchase.

   (g)in the event that the property is not sold by auction or private negotiation within 14 days after the said auction then the parties shall do all acts and sign all documents and pay all monies necessary to procure a second auction within a further 4 weeks of the date of the first auction, and otherwise on the same terms and conditions as applied to the first auction.

3. In the event that the property does not sell at the conclusion of the program set out in Order 2 thereafter the husband shall have carriage on behalf of the parties of the sale of the property and for that purpose unless the parties agree to the contrary or the Court otherwise orders he is entitled to draw on the Farm Overdraft Account to a value of NZ$40,000 for the purposes of paying Mr C and any necessary sub-contractors to perform the work recommended by Mr C in his affidavit.

4. In the event that Order 3 applies the husband is authorised on behalf of the parties to do all things and to sign all documents necessary to sell the property by auction, subject to the work recommended by Mr C on similar terms to those set out in Order 2 herein.

5. In the event that either of the parties refuses or neglects to sign any document within 7 days of that document being provided to him or her in order to give effect to these orders, a Registrar of this Court is appointed pursuant to Section 106A of the Family Law Act to execute such document in the name of the defaulting party.

6. The parties shall forthwith do all things and sign all documents necessary to permit the wife or in the event that Order 3 applies the husband to draw on the parties’ Farm Overdraft Account with the ASB Bank for the purpose of giving effect to these orders.

7. The Orders of 30 August 2007 are further varied to provide that the rate at which monies are paid to the wife from the Farm Overdraft Account with the ASB Bank in relation to her living expenses is increased to NZ$1,250 per month and that increase is to take place as and from 1 January 2008 and is to continue until further order.

8. In the event that the available facility with the Farm Overdraft Account with the ASB Bank is reduced to NZ$20,000 the parties are to forthwith do all things and sign all documents to apply to increase that facility by a further NZ$50,000 or such other sum upon which the parties agree in writing and the additional sum shall be held and distributed on the same terms and conditions as apply to the current Farm Overdraft Account with the ASB Bank.

9. Leave to either party to apply on giving 48 hours’ notice to the Court and to the other party in relation to the formulation of the orders to give effect to reasons given today AND IT IS NOTED that that leave might be activated in the event for example that the provisions of the order made under Section 106A of the Family Law Act would not be effective in relation to dealings with the conveyancing in New Zealand, dealings with the New Zealand bank account or otherwise and it may be that the orders would need to reflect some available provision that would be enforceable in New Zealand.

10. The substantive proceedings are adjourned to 12 May 2007 at 9:00 am before the Docket Registrar in chambers.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5514 of 2007

Mr Baxter

Applicant

And

Ms Baxter

Respondent

REASONS FOR JUDGMENT

1. These are proceedings arising from orders that were made by consent on 30 August 2007 which included orders for spousal maintenance and the sale of a property.

2. The husband and wife are 52 and 42 years of age respectively. They were married in June 2000 and separated on 8 January 2007. Their divorce became final on 21 April 2008.  They have one child, who was born in February 2006 and so is two years and two months of age. 

3. The wife commenced proceedings in this Court on 6 August 2007.  As I said, some orders were made on 30 August 2007 in terms agreed between the parties.  They provided, in brief, for $1500 a month to be payable by the husband to the wife, and $NZ1000 per month to be paid to her from an account called The Farm Overdraft Account with an ASB bank.  The husband was also to receive a sum of $NZ1000 a month from that account.  The parties within 28 days were to list the property in New Zealand for sale at a price of $NZ3.8 million with a particular real estate agent with selling costs and marketing to be paid out of the overdraft account.  On completion, 15 per cent of the net proceeds was to go to each of them with the balance to remain in a controlled monies account.  The parties were to do things to apply for an increase no greater than $NZ100,000 in the overdraft and they were to draw $8000 each. There was an agreement about an expert.  It was agreed that the husband would pay the wife $1470 a month by way of child support.  That was a notation because there was not a formal child support assessment.  And there were some other notations.

1. The matters before me today boil down to orders necessary to give effect to the sale of the New Zealand property and an application for variation of the maintenance provision, being the provision whereby the husband was to pay $1500 per month direct to the wife. 

2. The parties have struggled over the months to try and give effect to the orders but they cannot agree. The valuation of the property has been derailed by the realisation that non-compliance with the building code in New Zealand seems to have had an effect on the market. In any event, they had the property on the market and the best offer they received was $NZ2.6 million. They contend that it is worth a great deal more than that. They tried to get some work done. They each had separate experts give advice. They cannot agree about the necessary work. They have interfered with each other's plans to sell the property and they need resolution of those disputes. 

3. The background to all this is that the parties met in England and travelled to New Zealand in January 2000. The husband says he inherited ₤27,000 in June 2006. In August 2006 he felt his job in New Zealand was threatened and although at that time the marriage was under some stress and separation was in contemplation, he proposed that the parties move to Australia.  Rather uniquely, the plan was to set up bases both on the south coast of Queensland and in Sydney.  That occurred. The wife and child were established in rented premises in Queensland and the husband occupied premises in Sydney.  Arrangements were made to subsidise the wife's living arrangements. They are largely reflected in the August orders. On the termination of the lease of the Queensland property, the wife moved back to New Zealand. 

4. In the meantime there have been problems in relation to parenting arrangements and problems in relation to the removal of the child.  But for the purposes of today the wife is in occupation of the New Zealand property.  As I indicated to the parties' counsel today, the options seem to be making one of the parties trustee for sale or authorising a third party to sell the property. They were the options that the parties had contemplated. The husband was not thrilled with the idea of a third party being appointed but he could see the sense in it. He was concerned to some extent about the cost. We had some discussions about whether that would be the nominee of the relevant body of solicitors in New Zealand or perhaps an accountant. It was thought that it would be possible to gain a consent from somebody known to a connection of the husband so that there would be somebody there in New Zealand who could supervise the exercise. 

5. My worry about that is the property has lost some value from what the parties anticipated. Money is tight. To qualify someone to stand in the shoes of one of the parties, to have that person engage people to do the work, is going to mean that instead of supervision being done in effect free by a party, that the parties will be put to paying professional rates for somebody to get across all of the information and to make decisions on a day-to-day basis. I do not think that is practicable.  There is also the problem that the wife is in occupation with the child.  Although I do not know whether she would be able to cooperate with some other person or not, the history of the matter suggests that there have been problems in cooperation for both parties.

6. In those circumstances, I propose to make orders that put her in charge of the process.  She has already indicated the sort of pattern she proposes.  If that fails over the time frame that she proposes, then I will reverse the orders and the husband will be responsible.

7. I will make some orders.  They are necessarily complicated and so I will give the parties the right to bring the matter back by arrangement with my Associate in relation to the form of the orders. The parties can ensure that the orders give effect to the reasons that I have given. 

8. In relation to the maintenance issue, the husband says, "Well, the provision of $1500 a month was made at a time when the wife had a rental obligation of $550 a week in respect of the [Queensland] property and now she no longer has that obligation."  He has exhausted what resources he had available to him and says that the wife's estimate of her outgoings is inflated.  The wife says that she has been relieved of the rental obligation, but that associated with living in New Zealand and trying to get work undertaken with the property involves significant cost. The property involved is described as a specialised farm and it encompasses a curtilage with vines and fruit trees. It was been established for both commercial accommodation and the production of produce. She says that the electricity cost, for example, is significant because of that.  The location means that she has significant vehicular fares and other costs.

9. It is hard to get to the bottom of this, as it always is with interim maintenance issues. One aspect of the wife's case is a bit odd, is she makes a claim for $400 a week in child minding.  Her evidence about that is this: 

   Our daughter […] is two years of age [in] February 2008.  I am unable to work due to [the child]’s age.  I have no family in New Zealand and live [outside of] Auckland.  There is no childcare available [nearby].  I have not been able to secure childcare in Auckland.   It's a 50 minute [commute] from the [property] to Auckland.  I am managing [the farm business]. I desperately want to sell the property to get on with my life and I am trying to do so while looking after [the child] full time.

10. Who, one would ask, in those circumstances is she paying $400 to mind the child?  There could be an explanation for that, but it is not immediately apparent because it seems her evidence is there is no such person available near the property or even, extraordinarily, in Auckland.

11. Some of her claimed expenditure would normally give way to necessity.  Entertainment and hobbies of $130 a month, clothing and shoes at $210 a month, holidays $250 a month, the Sky TV contract at $100 a month. There are some issues about health matters. On the other hand those claims sit comfortably with those of the husband. For example, the provision he makes for his own holidays is $100 a week.  He claims something more than $400 a month, whereas the wife says $250 a month. He claims $50 a week for clothing and shoes, not dissimilar to the wife's claim.  So he is not in a position really on that basis to criticise her claims. There is still the child minding item which makes no sense and there are some other items that could be used to pare down the wife's claim.

12. As to the wife’s shortfall. She says she is spending $4279 a month. One of the problems in this case is you do not know exactly which currency the parties are referring to.  The Australian dollar is worth a bit more than the New Zealand dollar.  I think the wife receives one amount in Australian dollars and the other amount in New Zealand dollars. Ignoring that for the time being, she receives $2417 a month and so has got a shortfall of $1862 a month. As I say, there are some things that would give way to necessity.  Doing the best I can, I quantify those at about $800 a month. Thus there is a shortfall of $250 a month. 

13. The husband has made a disclosure of his income and outgoings.  I cannot quite see how he has worked it out.  He works as a consultant for the Commonwealth Bank contracted by somebody else and says his average weekly income is $2,949 a week.  We know that he also receives $NZ1000 a month.  He does not seem to bring that into account in his Financial Statement. That is a payment of capital rather than income.  He says he spends $3081 a month and that is on the basis of $692 per week that he pays, he says, for the benefit of the wife.  That would include no doubt the child support obligation.

14. So on the face of the documents there is no ready amount available in his budget.  So I think for the time being the shortfall that I have identified in the wife's situation of $250 a month should come out of the same source that the parties have been drawing on, the overdraft. 

15. Now, of course there can be an adjustment of that later, if and when the matter gets to a final hearing.  One can be reasonably confident this is a matter that will get to a final hearing. There can be an adjustment when the facts are in and the husband can be tested on his income and the parties can have a look at tax records and so on.  There can be an adjustment as against his property interest to meet any shortfall in the wife's support in this interregnum. 

1. So doing the best I can, I make the following orders. They are substantially by way of enforcement of the existing orders, being the arrangements the parties committed to in August last year, which include provisions such as the preservation of the net proceeds of sale of the [New Zealand] property, subject to 15 per cent distribution to each of the parties. Those orders are still binding on the parties. The parties may bring the matter back to me in reasonably short order to fine tune the wording of the order or to correct any mistakes.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: …

Date:  4 September 2008