Blackshaw and Blackshaw - [2014] FCCA 1371

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLACKSHAW & BLACKSHAW

[2014] FCCA 1371

Catchwords:
FAMILY LAW – Property – husband’s application not pressed – delay in hearing as a consequence – allegations by wife of husband failing to engage in proceedings or to make disclosure as required – consideration of the evidence – determination that evidence of the wife was more reliable than that of the husband – consideration of contributions financial and non-financial pre and post separation.

Legislation:
Family Law Act 1975 (Cth), ss.75(2), 79(4)(a)-(g), 79(2), 81

Veterans Entitlement Act 1986

Hickey v Hickey and the Attorney General for the Commonwealth (2003) FLC 93-143
Russell v Russell (1999) FLC 92-877
Stanford v Stanford (2012) 47 FLR 481
C v C (2005) FCA 429
Weir v Weir (1993) FLC 92-338
Black v Kellner (1992) FLC 92-287
Giunti v Giunti (1986) FLC 91-759
Mezzacappa v Mezzacappa (1987) FCA 91-853

Applicant:

MR BLACKSHAW

Respondent:

MS BLACKSHAW

File Number:

TVC 600 of 2012

Judgment of:

Judge Coker

Hearing date:

27 March 2014

Date of Last Submission:

27 March 2014

Delivered at:

Townsville

Delivered on:

25 July 2014

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Honchin

Solicitors for the Respondent:

Ross Lawyers

ORDERS

That the funds retained by the Husband’s solicitor Purcell Taylor Lawyers in the sum of $20,314.32 be transferred to the Wife’s solicitor Ross Lawyers for the sole use of the Wife within seven (7) days from the date of these Orders.

Appointment of the Wife as trustee for sale

That MS BLACKSHAW, the Wife, be appointed trustee (“the trustee”) for the sale of:
(a)Property T in the State of Queensland (more properly described as Lot (omitted) on Survey Plan (omitted) in the County of (omitted) and the Parish of (omitted) with title reference (omitted)) (“the Property T property”); and
(b)Property A in the State of Queensland (more properly described as Lot (omitted) on Registered Plan (omitted) in the County of (omitted) and the Parish of (omitted) title reference (omitted) (“the Property A property”);
(c)(omitted) cruiser Registration “(omitted)” and trailer registration “(omitted)” with such item to be delivered to the Respondent’s solicitor within two (2) business days from the date of these Orders;
(d)(omitted) motor bike Registration “(omitted)” with such item to be delivered to the Respondent’s solicitor within two (2) business days from the date of these Orders.

Sale of Real Properties

That the trustee effect a sale of the real property for the best price reasonably obtainable in the following manner:
(i)     list of the real property for sale by private treaty with such agent as the trustee may agree to appoint within seven (7) days;
(ii)    the sale price at which the real property is listed be the price nominated as the fair market value by the agent, not less than:
A.$635,000.00 for Property T
B.$375,000.00 for Property A.
(iii)     the Husband cooperate in every way with the trustee and the agent (without limiting the generality of the foregoing):
A.making the key available to the trustee or…

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.

Continue reading Blackshaw and Blackshaw

Details

AGLC: Blackshaw and Blackshaw [2014] FCCA 1371
Case: [2014] FCCA 1371
Decision Date: 25 July 2014

CaseChat Overview and Summary

In *Blackshaw and Blackshaw*, heard before Judge Coker, the dispute concerned the division of property and the implementation of orders following family law proceedings between a husband and wife. The court was tasked with making specific directions regarding the sale of real estate, personal property, and the distribution of proceeds, as well as addressing superannuation entitlements and other financial matters.

The court was required to determine the appointment of a trustee for the sale of specified real properties and other assets, including a vessel and motor bike. It also needed to establish the process for listing, selling, and potentially auctioning these properties, including setting minimum sale prices and outlining the husband's obligations to cooperate. Furthermore, the court had to specify the priority of payments from the sale proceeds, including the discharge of mortgages, rates, and any costs associated with the sale, before distributing the remainder. The court also addressed the husband's obligation to provide vacant possession of a property and issued an injunction restraining him from interfering with the sale process.

The court reasoned that a clear and structured approach was necessary to effect the sale of the parties' assets and to ensure a fair distribution of the proceeds. It appointed the Wife as trustee for the sale of the real properties and other specified assets, detailing the method of sale, including private treaty and public auction if necessary. The court stipulated minimum listing prices for the real estate and required the Husband's full cooperation in making the properties available for sale and signing all necessary documentation. The proceeds of sale were to be applied first to sale costs, then to discharge mortgages and outstanding rates, followed by repayment of any work costs, with any remaining funds from each property to be paid to the Wife. The court also made orders regarding the sale of a vessel and trailer, and the retention of superannuation and other assets by each party, including a specific order for the division of splittable payments from the Husband's Defence Force Retirement and Death Benefits Scheme. Finally, the court provided for the Registrar to execute documents in default of either party's compliance.

Orders

Orders of the court

That the funds retained by the Husband’s solicitor Purcell Taylor Lawyers in the sum of $20,314.32 be transferred to the Wife’s solicitor Ross Lawyers for the sole use of the Wife within seven (7) days from the date of these Orders.

Appointment of the Wife as trustee for sale

That MS BLACKSHAW, the Wife, be appointed trustee (“the trustee”) for the sale of:

(a) Property T in the State of Queensland (more properly described as Lot (omitted) on Survey Plan (omitted) in the County of (omitted) and the Parish of (omitted) with title reference (omitted)) (“the Property T property”); and

(b) Property A in the State of Queensland (more properly described as Lot (omitted) on Registered Plan (omitted) in the County of (omitted) and the Parish of (omitted) title reference (omitted) (“the Property A property”);

(c) (omitted) cruiser Registration “(omitted)” and trailer registration “(omitted)” with such item to be delivered to the Respondent’s solicitor within two (2) business days from the date of these Orders;

(d) (omitted) motor bike Registration “(omitted)” with such item to be delivered to the Respondent’s solicitor within two (2) business days from the date of these Orders.

Sale of Real Properties

That the trustee effect a sale of the real property for the best price reasonably obtainable in the following manner:

(i) list of the real property for sale by private treaty with such agent as the trustee may agree to appoint within seven (7) days;

(ii) the sale price at which the real property is listed be the price nominated as the fair market value by the agent, not less than:

A. $635,000.00 for Property T

B. $375,000.00 for Property A.

(iii) the Husband cooperate in every way with the trustee and the agent (without limiting the generality of the foregoing):

A. making the key available to the trustee or agent from the date of these Orders but handover the keys permanently fourteen (14) days from the date of these Orders by providing the keys to the office of the Respondent’s solicitor;

B. signing all documents requested by the trustee in relation to the sale of the real property;

(iv) in the event that the property is not transferred into the name of the trustee, the parties each execute the contract for sale, sign all documents and do all things necessary to effect a sale;

(v) the trustee have the primary conduct of sale on behalf of both parties, and in respect of the sale any costs to trustee form part of the legal costs of sale and be deducted from the proceeds of sale.

In the event the real property is not sold by private treaty within thirty (30) days of the date of these orders, the trustee shall hold the real property for sale by public auction with the agent appointed pursuant to these orders by the trustee.

The reserve price of that auction be on such terms as the trustee in her absolute discretion may determine.

In the event the bidding at the auction does not reach the reserve price the trustee may negotiate with the highest bidder and effect a sale of the real property.

If the real property remains unsold the trustee shall do all acts and things and sign all documents necessary to immediately release the real property for sale by public auction again on a date nominated by any sale agent.

Any person shall be at liberty to bid on the property at any auction or make an offer in relation to the real property to the trustee.

On settlement of the sale of the real property the proceeds of sale be paid in the following manner and priority:

(a) Property T property:

(i) all costs and expenses of sale including legal costs and disbursements, agent's commission, valuers fees and auction expenses including repayment of any such expenses, be paid by the trustee;

(ii) the amount required to discharge the mortgage of the parties first on the Property T property and secondly the Property A property;

(iii) the amount required to pay all municipal and other rates outstanding with respect to the real property;

(iv) the amount required to repay to the party carrying out work for the real property for the cost of such work carried out in accordance with any requirement of the trustee in accordance with these orders;

(v) any and all remaining funds from the sale of the Property T property to the Wife;

(vi) that there be liberty granted to the parties, or the trustee on three (3) days notice for implementation of these orders.

(b) The Property A property:

(i) all costs and expenses of sale including legal costs and disbursements, agent's commission, valuers fees and auction expenses including repayment of any such expenses, be paid by the trustee;

(ii) the amount, if any, required to discharge the mortgage of the parties on the Property A property ;

(iii) the amount required to pay all municipal and other rates outstanding with respect to the real property;

(v) any and all remaining funds from the sale of the Property A property to the Wife;

(vi) that there be liberty granted to the parties, or the trustee on three (3) days notice for implementation of these orders.

10.

That the respondent must provide the trustee with vacant possession of the Property T property within fourteen (14) days of the date of these Orders and leave the property in a clean and tidy state suitable for sale.

11.

The Husband shall be restrained and an injunction shall issue, restraining the Husband from:

(a) Continuing to live in the Property T or maintaining any personal property on the Property T property after the expiry of fourteen (14) days from the date of these Orders, without the consent in writing of the trustee for sale;

(b) Interfering with the sale of either the Property T property or the Property A property;

(c) Doing anything or any act to adversely affect the sale or sale price of either the Property T property or the Property A property.

12.

That upon settlement of the sale of the real property, the parties sign all necessary documents to cancel any insurance in respect of the real property and that any refund be deposit to the trust account of Ross Lawyers solicitor, to be distributed in accordance with these Orders.

13.

The trustee shall within fourteen (14) days of the date of these Orders take all steps necessary to advertise for sale the vessel and trailer and motor cycle for the best price reasonably obtainable:

(i) After deducting the costs of sale (including advertising and agents fees if any) for the balance remaining to be paid to the trust account of Ross Lawyers, solicitor for the Wife;

(ii) in the event that the trustee cannot effect a sale of the vessel and trailer within sixty (60) days that she will arrange for the vessel and trailer to be sold at a public auction within the following three (3) months;

(iii) that the parties sign all necessary documents and do all necessary things to effect a sale of the vessel and trailer.

Superannuation and Other pension Schemes

14.

The Wife retain all her rights title and interest in her (omitted) superannuation scheme.

15.

The Husband retain all his rights title and interest in his (omitted) superannuation scheme and all his rights title and interests in his Veteran’s Entitlements Act 1986 pension.

16.

In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Blackshaw from his interest in the Defence Force Retirement and Death Benefits Scheme (the DFRDB), the Wife, Ms Blackshaw is entitled to be paid (by the Trustee of the DFRDB) 50% of the splittable payment and there shall be a corresponding reduction in the amount Mr Blackshaw would be entitled to receive but for these Orders.

17.

The operative time for Order 16 is four (4) business days after the service of the final orders on the Trustee.

Parties otherwise retain property, businesses & etc

18.

The Wife retain all her rights title and interest to the exclusion of the Husband:

(a) in the business “(omitted)” and all debts associated with that business;

(b) in any insurance policy, monies in accounts held by her;

and the Husband indemnify the Wife with respect to outstanding taxes, fees or statutory charges arising for the conduct of the business up to 12th March 2012 not otherwise dealt with in proceedings by the Commissioner of Taxation or WorkCover as at the date of these Orders.

19.

The Husband retain all his rights title and interest in the business “(omitted business)” and all debts associated with that business.

20.

That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action and motor vehicles) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property) being deemed to be in the possession of the party;

(b) monies standing to the credit of the parties in any bank account are to remain the property of that party;

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Other proceedings

21.

The Wife discontinue Third Party proceedings against the Husband in proceedings No. (omitted) in the Magistrates Court at Brisbane within fourteen (14) days of these Orders and shall be restrained from taking any further proceedings against the Husband with respect to the debt claimed by the Commissioner of Taxation in proceedings (omitted) in the Brisbane Magistrates Court or in respect of the claim by WorkCover in proceedings No (omitted) in the Brisbane Magistrates Court.

Parties failing to execute documents

22.

In default of either of the parties doing all acts and things and executing all documents as are necessary to give effect to these orders within fourteen (14) days of the date on which the obligation to do so is set under these orders, and on the Registrar being satisfied of such failure or neglect or default by the parties by way of affidavit evidence only, the Registrar of the Federal Circuit Court of Australia at Townsville is appointed pursuant to section 106A of the Family Law Act 1975 to execute all documents in the name of the party in default and to do all acts and things necessary to give validity and operation to these orders and the party in default shall pay to the other party that party’s costs and disbursements on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.