Baxter and Baxter (No. 2)

[2008] FamCA 752

FAMILY COURT OF AUSTRALIA

BAXTER & BAXTER (NO. 2) [2008] FamCA 752­­­

FAMILY LAW – SPOUSAL MAINTENANCE – Factors considered – Discharge
FAMILY LAW – PROPERTY – In relation to a marriage – Exclusive occupation – Sale of property
FAMILY LAW – CHILDREN – Return to Australia

Family Law Act 1975 (Cth)

APPLICANT: Mr Baxter

RESPONDENT: Ms Baxter

FILE NUMBER: SYC 5514 of 2007

DATE DELIVERED: 6 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 6 August 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 the spousal maintenance payable pursuant to Order 1(a) of the Orders made on 30 August 2007 be discharged to the date of which that order stands paid.

2. Within 14 days from today’s date or such further time as the parties agree upon in writing, the wife vacate the property in New Zealand and that thereafter unless the parties agree in writing she remain away from that property until further order, and on and from the date the wife vacates the property the husband is to have exclusive possession of the property until further order.

3. On and from the date the wife vacates the said property the husband shall have carriage on behalf of the parties of the sale of the property in accordance with the provisions of the Orders made on 24 April 2008.

4. That the parties do all things and sign all documents to cause no further drawings on the Farm Overdraft Account with the ASB unless they agree to the contrary in writing, save that on and from the date the wife vacates the property the husband may apply the funds from that account for the purpose of paying Mr C for necessary work in relation to the property referred to in the orders of 24 April 2008, and/or for the purposes of advertising or marketing the property for sale in accordance with the orders of 24 April 2008, and otherwise only for a purpose agreed upon by the parties in writing or further order of the Court.

IT IS NOTED

1. That the consequence of that order is that the fund previously drawn on by the parties for their own support will no longer be available for that purpose but that the husband has indicated a willingness to join with the wife in a further borrowing secured on the property which may be applied, among other things, for the wife’s support.

2. That the wife indicates a desire to return to Australia with the child and the husband has taken the preliminary steps to the commencement of proceedings under the Hague Convention for the return of the child to Australia.

3. That the wife through her counsel today has indicated that she does not intend to invoke any jurisdiction in a New Zealand court in relation to any issue between the parties save in relation to her own safety and that of the child.

IT IS FURTHER ORDERED

1. That the parties do all things and sign all documents necessary to facilitate the wife’s return to Australia with the child.

2. That forthwith on the written request of either party the parties do all things and sign all documents necessary to make application to the New Zealand Family Court to obtain orders in the same terms as the orders made by this Court today.

AND IT IS FURTHER NOTED

1. That it is in the contemplation of the Court that the costs of airfares, other re-location costs and costs necessary to secure appropriate accommodation in Australia may be the subject of an application by the wife for further access to the fund being the Farm Overdraft Account with the ASB Bank.

AND IT IS FURTHER ORDERED

1. By way of variation of the orders made on 24 April 2008, orders are made in terms of paragraph 6 of the Application in a Case on behalf of the husband filed 11 July 2008 as set out hereunder:

   6.That for the purpose of the sale of the New Zealand property the husband shall appoint an agent for the sale of the [New Zealand] Property on the following terms and conditions:

   6.1that the [New Zealand] Property be listed for sale for an auction to be held within 6 weeks after the completion of the works referred to in orders 4 and 5.

   6.2that the reserve price be a price agreed between the parties in writing within 7 days from the completion of the works and requested by the husband to the wife (through their respective solicitors) and in default of agreement the reserve price shall be a value fixed by [L] Valuers Limited as the current market value of the [New Zealand] Property.

   6.3in the event that it is necessary to instruct [L] Valuers Limited to value the [New Zealand] Property the parties shall do all things and sign all documents to instruct [L] Valuers Limited to provide the opinion as to the basis of the sale and the reserve price.

   6.4the costs of the auction and the marketing of the [New Zealand] Property for sale shall be met from the parties’ [Farm] Overdraft Account with ASB Bank up to a maximum of NZ$25,000.

   6.5in the event that the [New Zealand] 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 [New Zealand] Property does not reach the reserve price the parties shall negotiate with the highest bidder or any interested party and unless they agree to the contrary shall sell the [New Zealand] Property at a price which is not less than 90% of the reserve price and shall then do all such things and sign all such documents necessary to complete that purchase.

   6.6in the event that the [New Zealand] Property is not sold by auction or private negotiation within 30 days of the said auction in accordance with Order 6.1 then the parties shall have liberty to restore the matter before the Court for further direction.

2. Unless the parties agree to the contrary the time in which the wife is to comply with a Notice to Produce served on her on 24 July 2008 and 5 August 2008 and to comply with paragraphs 9, 10, 11, and both paragraphs 12 of the said Application, as set out hereunder, except to the extent that the wife has already provided that information or those documents, is 14 days from today’s date:

   9.That the wife on or before 7 days from the date of this order provide to the husband a complete list of fixtures and fittings that:

   9.1     are currently at the [New Zealand] Property;

   9.2were at the [New Zealand] Property and have been removed from the [New Zealand] Property by the wife from 1 July 2007 to date.

   10.That the wife in relation to any chattel removed from the [New Zealand] Property since 1 July 2007 provide an Affidavit setting out:

   10.1    particulars of the chattel.

   10.2    if sold, to whom it was sold.

   10.3if given, or otherwise disposed of, to whom it was given or otherwise disposed of.

   10.4    when it was given or disposed of or sold.

   10.5    any money or other consideration received in relation to same.

   10.6.into which bank account any money received was deposited or to whom it was given.

   11.That on or before 7 days of the date of this order the wife serve an Affidavit setting out details of all monies, or other considerations received from the sale or disposal since 1 July 2007 of any asset of the wife, or the partnership of the husband and wife, carrying on the business of the [New Zealand] Property.

   12.That on or before 7 days from the date hereof the wife provide details of any appointment of [maintenance contractors] in accordance with Order 2(e) of the orders of this Honourable Court 24 April 2008 and provide copies of all agents, quotes, invoices from [the maintenance contractors] and a statement of all monies paid or any items provided to [the maintenance contractors].

   12.On or before 7 days from the date of this order the wife provide details of any persons who undertook any work at the [New Zealand] Property since 24 April 2008 including particulars of the work undertaken and the basis of the work being undertaken.

3. That the wife pay 75% of the costs of the husband of and incidental to these proceedings as agreed between the parties or assessed by a taxing officer.  Subject to the taxing process payment is to be made not later than seven (7) days after effect is given to a final settlement of property between the parties.

4. Leave to the parties to restore the matter to the list on 48 hours’ notice.

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 in connection with property and parenting proceedings that are on foot in this Court.  The matter has been dealt with, to some extent, on a piecemeal basis.  The matter came before me in April and I made some orders, among other things, for distribution of monies from a fund secured by a property in New Zealand, and orders in relation to the carriage of the sale of the property in New Zealand and some other consequential orders.  Those orders, I think, were themselves in aid of orders made for maintenance by agreement between the parties on 30 August 2007.  At the same time there was the primary order made for the sale of the property in New Zealand.  Those orders included a provision for the distribution of the proceeds, including 15 per cent to each of the parties and the balance to be held pending further order. 

2. Despite those orders - that was 30 August 2007- and the orders made in April, the property has not sold.  The gist of the orders in April was a program whereby the wife, who with the parties' child was then at the property, have the opportunity to continue to market it under certain conditions.  There was a nomination of a mechanism for identifying a reserve price.  Somebody was appointed to do some work to clear and maintain the grounds.  There was provision for drawing on a fund for the purposes of marketing the property and then there was a consequential order in the event that the property did not sell.  All of that program ran through to a date in July.  The orders went on, in the event that the property did not sell at the conclusion of that program, then the husband have carriage of the sale on behalf of the parties and he commission some work from a Mr C, who had given some evidence in the proceedings, up to a value of $NZ90,000 sourced in the fund and that there be reciprocal orders in relation to his carriage of the sale.  There was an order under 106A for the Registrar to sign documents if the parties refused and there was an increase in provision in relation to the wife only.  The earlier orders that had a drawing of $NZ1000 a month on the facility and hers was to increase to $NZ1250 per month backdated to 1 January 2008.

3. The first issue before me today is whether I intended to vacate 1(a) of the orders made on 30 August 2007. That order provided for the wife to receive, by way of spousal maintenance, the sum of $1500 per month to be paid by the husband direct to the wife. There have been submissions about that issue today.  I think a proper reading of the transcript and the orders, reveals that it was implicit in the orders of 23 April 2008 that Order 1(a) be discharged. That is because Order 1(a) of 30 August 2007 is paid up until the end of December 2007. The application made before me in April was based, in part, on the fact that the wife, at the time the original orders were made, was incurring a rental cost on the south Queensland coast, I think it might have been at the rate of $550 a week. 

4. Now, although that does not equate to the $1500 that was been ordered, the argument on behalf of the husband before me was, "That significant expense has been avoided by the wife moving back to the New Zealand property." Then there was discussion by way of submissions from Ms Langley, the counsel for the wife, in April that notwithstanding that expense had been lifted, there were expenses that the wife was incurring in her stewardship of the property in New Zealand.  It is a substantial property that incorporates a farm. The submission being that those expenses more than made up for the fact that the wife was saving $550 a week. There was a discussion about those proper expenses being met as a joint expense, whether from the fund or some other source.  In practice, the wife's evidence is that she has met those expenses in a number of ways including selling, without the permission of the husband, a number of items of personalty located at the property. 

5. Finally, there is the fact that an order was made increasing the drawing, by the wife only, on the fund with the Auckland Savings Bank to $1250 a month backdated to the date to which the maintenance stands paid.  It seems to me, putting all of those things together, that what was intended on the day was the $1500 a month obligation cease as from the date to which it stood paid.  I am told that the husband's solicitors understood there was a problem from about that time and was in negotiations with the wife's legal representatives about it.  As I said, in the course of submissions, if a party thinks that there is a slip rule problem, they are obliged to bring it back to the Court quickly. It makes the issue more difficult to resolve if it is not brought back quickly. It would have been an easy problem to resolve in May, not so easy in August. 

6. So I will make that order. 

7. The next issue is that the wife says, notwithstanding that orders have been made for the husband to take over the carriage of the sale, she wants her opportunity to sell the property, extended.  She says she is not enjoying herself there and lists a number of problems, physical deprivations that she has because of the climate and the isolation and the costs of being there.  But she says that there has been an offer involving a swap of real estate at about $1.8 million.  She says that there has been discussion about an offer of about $1.9 million, although no firm offer has been made.  She says that she has done a whole lot of things to try and market the property and there have been inquiries from people from Australia, inquiries from a French couple I think, and she wants an opportunity to continue to have carriage of the sale.

8. As I explained in the course of submissions, I am not inclined to revisit the decision I made in April. This is the best system we have. The parties apply to Court and a decision is made. They do not have to like it and in this case they can ask that it be reviewed, but they cannot ask the same judicial officer to make a different order when there has been no change of circumstances since.  The fact that the property has been difficult to sell is a statement of the bleeding obvious. The parties say they have been trying to sell the property since 2006.  Nothing has changed. The wife says that there were issues about the husband not signing cheques. She could have had those things resolved very quickly if she wanted to have that matter brought back to the Court.  It cannot be said that the parties have been shy about coming to Court. There has been no significant change.  The orders have to be complied with.   

9. In practice, the wife needs to be out of the property if the husband is to take over carriage of the sale, because the parties cannot co-operate. They have even been to the indignity of having apprehended violence proceedings commissioned in New Zealand.  There was a scene when the husband and his partner turned up in New Zealand at the property unannounced, a scene apparently conducted in the presence of the child. The wife says it was worse than the husband says it was. In any event it is trite to say that they could not be both at the property at the same time. Thus the wife has to leave. That is a job of work. The property is in an isolated place. It has ferry access only. Therefore she needs some time to leave. On the other hand she has been on notice that her carriage of the sale was coming to an end. So she does not need excessive time.  I have indicated 14 days and that is what I will order. 

10. The husband says through his legal representative today, that if through the efforts of the wife there is generated an offer at $NZ2 million plus GST, then he would give active consideration to that offer. So, in effect, even at this late stage she has a bit more time to find a buyer. One would not be sanguine about such a buyer being found at this stage.  On and from the expiration of that 14-day period, the wife will be obliged to leave the property and the husband can take up the carriage of the sale that is provided for in the April orders.  He wants access to some money to pay Mr C for the work that needs to be done. That has been provided for in the orders I made in April. Since then the fund has been depleted.  What is proposed on behalf of the husband is that he will use what monies there are for that purpose. He is on notice that the application of the fund in that way will cause the termination of the payments to the wife and to himself. In practice the parties, through their excellent relationship and a dispute that they have had with officers of the bank, have managed to cause the fund to be frozen in any event.  

11. There will be consequential orders needed in relation to the wife's support. I propose to make the orders, subject to this issue: that the husband have carriage of the fund hereafter. The wife may well have relocation costs associated with a move either within New Zealand or back to Australia. She says through her counsel that she wants to move to Australia with the child. The husband wants her to move to Australia with the child. His wish is so sincere that he made a request under the Family Law (Child Abduction Convention) Regulations for the central authority in Australia to arrange for an application in New Zealand, under the Hague Convention on the Civil Aspects of International Child Abduction for the return of a child wrongfully removed to, or wrongfully retained in, New Zealand. So everybody wants the wife to come back. I have been given an indication that the husband would look very favourably at both the necessary orders in relation to physical movement of the wife and child and in relation to necessary set-up costs for accommodation in Australia, if that is what the wife wants to do. I cannot make any detailed orders as I do not know what the costs are likely to be. There will be airfares in the event that the wife and child return to Australia. So that is a matter that the parties will need to sort out and if they cannot, then they certainly know the way to the Court.

12. There has been sale by the wife of a number of chattels, including a motor vehicle that the husband owned, a trailer and equipment that he says is necessary for the maintenance of the farm. The wife has told us that the equipment has been sold and she has provided details of the amount raised and of how the monies were spent. I am told that that information does not address the documents sought in a Notice to Produce that has been served on her solicitors. Further details are sought in the orders pressed on behalf of the husband today.  I will make those orders.  The wife should have notified the husband in advance of her intention to sell the chattels.  This has just caused trouble and any problems in her complying with the timetable to provide an answer really rests with her. 

13. There are some issues about parenting orders that are in abeyance.  The matter is listed before a Registrar on 26 August 2008.  I will not make any orders at this stage.  It makes a huge difference, it is trite to say, to those proceedings whether the child, who is very young, is here or on the other side of the ditch.  That really needs to be sorted out first.  

1. In relation to spousal support, there is an issue about whether the wife is in a relationship or not. Unfortunately, on the day the husband went to visit the property unannounced, somebody that the wife describes as a Support Person was there. The wife describes Mr H as a person who is an accredited counsellor and group facilitator for an organisation. The property is an isolated place and thus it is a bit of a coincidence that he was there. Coincidences happen of course, but the problem is compounded because the husband says in his version of the rather unlovely interplay on the day, the wife said, "[Mr H] is my new partner.  I am happy with him. This is our house now." A new relationship would have a substantial impact, on the issue of spousal maintenance.

2. There is an application for costs.  The estimate is $5000 in relation to the proceedings today.  The substantial problem for today is that I made some orders and they have not been complied with. The critical issue is the issue of the carriage of the sale. That issue was decided. Applications are made, orders are made, and the orders must be complied with. There is a lovely provision for a judge to review the orders and in the case of a decision by a judicial registrar, to look at the problem. The parties do not even need to show that I made a bad decision. There was no review in this case and yet the wife has not complied with the orders. 

3. As to the financial circumstances of the parties, I think they have net assets of about $800,000. The husband is in paid employment. He has a new partner.  The wife is in New Zealand with a young child and has no income that we know about.  She says she is not in a relationship. That is about what I know about their financial circumstances.  Neither party has been wholly unsuccessful in the proceedings. I did not look at all the correspondence, but I take it that there has been significant correspondence between the parties trying to resolve matters and they have not been able to do it.  There has been a breach of Court orders in that the wife did not comply with the orders that were made in April and that has resulted in these proceedings to some extent.  There have been other aspects of the proceedings that do not relate to a failure to comply with orders. There is no way of testing the estimate provided on behalf of the husband.  I think the best I can do is to make an order that the wife pay 75 per cent of the costs of the husband of, and incidental to, these proceedings.  That is to be as agreed between the parties or assessed by a taxing officer.  Subject to the taxing process, the payments to be made not later than seven days after effect is given to a final settlement of property between the parties.  

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate:  …

Date:  4 September 2008