BRANDON & BRANDON

[2012] FamCA 251

FAMILY COURT OF AUSTRALIA

BRANDON & BRANDON [2012] FamCA 251

FAMILY LAW - PROPERTY SETTLEMENT - Consent order - Where the parties have signed a Minute of Consent Orders - Where some evidence has been presented regarding property matters - Where the Court is satisfied that the Orders consented to are just and equitable

Family Law Act 1975 (Cth)

APPLICANT: Ms Brandon

RESPONDENT: Mr Brandon

FILE NUMBER: BRC 10849 of 2009

DATE DELIVERED: 19 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Hogan

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Ms A McDiarmid

SOLICITOR FOR THE RESPONDENT: Springwood Lawyers

Consent Orders

1. As and by way of settlement of property pursuant to s 79 of the Family Law Act 1975, the property of the husband and wife or either of them within the meaning of the said section together with their respective superannuation interests be divided in the proportion 62.5% to the wife and 37.5% to the husband in accordance with the succeeding paragraphs of these orders and the Balance Sheet as annexed hereto.

1. Within 60 days of the date of making the Order the Husband shall pay to the Wife the sum of $200,000.00 by payment to the Legal Aid Queensland Trust account on behalf of the Wife.

1. Within 60 days of the date of the making of this Order each party shall do all acts and things and sign all documents necessary to secure the release of the mortgage currently held by the Bank of Queensland over the property at … M Street (“the M Street property”) and the Husband shall do all such things and sign all documents necessary to refinance the M Street property into his name alone in order to pay to the Wife the amount set out in paragraph 2 above.

1. Contemporaneously with the payment referred to in paragraph 2 above, the wife do all acts and sign all documents necessary to transfer to the Husband all her right, title and interest in the M Street property.

1. In the event that the Husband fails to make the payment referred to in paragraph 2 above, the parties shall do all such acts and things and sign all documents of whatsoever kind as is necessary to list for sale and sell the M Street property in the following manner:

(a)       within  7 days of the failure of the Husband to comply with the terms of paragraph 2 above, list the M Street property for sale by private treaty with L real estate agency (“the real estate agent”);

(b)       the listing price shall be $525,000.00 or such figure as suggested by the real estate agency particularised above;

(c)       in the event that the M Street property has not sold within one month from the date of listing;

(i)the parties shall reduce the price at which it is listed for sale thereafter to the list price recommended by the real estate agent; and

(ii)in the event that the property does not sell thereafter, the parties shall reduce the list price at the end of each 30 day period to a price recommended by the real estate agent until such time as the M Street property is sold.

1. The Wife and Husband shall each co-operate in every way with the real estate agent in relation to the sale of the M Street property and, without limitation on the obligation to co-operate in every way to ensure the sale of the M Street property:

   (i)the husband shall make a key to the M Street property available to the real estate agent within 24 hours of being requested by the real estate agent to provide same;

   (ii)the Husband shall allow inspection of the M Street property at all such times as requested by the real estate agent;

   (iii)the Husband shall ensure that the M Street property, including its grounds, is maintained in a good state of repair and is in a neat and clean condition at the time of any inspection organised by the real estate agent.

1. In the event that the real estate agent provides the parties with a Contract for the purchase of the M Street property in the REIQ standard terms for an amount which is within 5% of the price at which the M Street property is then listed for sale pursuant to paragraph 5(b) and/or 5(c) above, the parties will enter into and each party will execute any such Contract within 24 hours of being provided with it by the real estate agent.

2. Upon the completion of the sale of the M Street property, the proceeds of sale of the same shall be applied as follows:

   (a)       in discharge of the mortgage held by the Bank of Queensland over the M Street property;

   (b)       by payment to the Wife of that amount necessary to see her receive 62.5% of the nett property, including superannuation; of the parties (as is detailed in the Balance Sheet attached to this Order);

(c)       by payment of the balance to the Husband.

1. That the parties shall forthwith do all such acts and things and sign all documents of whatever kind as is necessary to list for sale and sell forthwith the property situated at … C Street, Town A (“the C Street property”) and:

   (a)       forthwith list the C Street property for sale by private treaty with L real estate agency (“the real estate agent”);

   (b)       the listing price shall be $269,000.00 or such figure as suggested by the real estate agency particularised above;

(c)       in the event that the C Street property has not sold within one month from the date of listing:

(i)the parties shall reduce the price at which it is listed for sale thereafter to the list price recommended by the real estate agent; and,

(ii)in the event that the property does not sell thereafter, shall reduce the list price at the end of each 30 day period to a price recommended by the real estate agent until such time as the C Street property is sold.

1. The Wife and Husband shall each co-operate in every way with the real estate agent and, without limitation on the obligation to co-operate in every way to ensure the sale of the C Street property:

(i)the Wife shall make a key to the C Street property available to the real estate agent within 24 hours of being requested by the real estate agent to provide the same;

(ii)the Wife shall allow inspection of the C Street property at all such times as requested by the real estate agent;

(iii)the Wife shall ensure that the C Street property, including its grounds, is maintained in a good state of repair and is in a neat and clean condition at the time of any inspection organised by the real estate agent.

1. In the event that the real estate agent provides the parties with a Contract for the purchase of the C Street property in the REIQ standard terms for an amount which is within 5% of the price at which the C Street property is then listed for sale pursuant to paragraphs 9(b) and 9(c) above, the parties will enter into and each party will execute any such Contract within 24 hours of being provided with it by the real estate agent.

1. In the event that the C Street property has not sold within 30 days of the date of the making of the Order then the parties shall within 7 days thereafter, do all such things and sign all such documents as is necessary to cause the C Street property to be listed with L real estate agency as a rental property and rented out at a weekly rent as recommended by the Real Estate Agent and the nett rent received shall be paid to meet mortgage repayments owing to the Bank of Queensland pursuant to the mortgage held by the Bank of Queensland over the property and any shortfall between the rental received and the outgoings incurred in respect of the property shall be met equally by the parties on the settlement of the sale of the property.

1. Upon completion of the sale of the C Street property, the proceeds of sale of the same shall be applied as follows:

(a)       in discharge of the mortgage held by the Bank of Queensland over the C Street property;

(b)       by payment of all costs and expenses of sale, including legal costs and disbursements and the real estate agent’s commission and fees;

(c)       by payment to the Wife of 62.5% of the nett proceeds;

(d)       by payment to the Husband of 37.5% of the nett proceeds.

1. The wife forthwith retain all of her right, title and interest to and in and the husband forthwith relinquish all right, title and interest to and in the following:

   (a)       the … Subaru … motor vehicle;

   (b)       the furnishings, chattels and contents currently in her possession;

(c)       the balance standing in any bank accounts in her name;

(d)       her entitlement to superannuation with the No 1 superannuation fund;

(e)       her entitlement to superannuation with the No 2 superannuation fund.

1. The husband forthwith retain all of his right, title and interest to and in and the wife forthwith relinquish all right, title and interest to and in the following:

   (a)       the … Nissan … motor vehicle in his possession;

   (b)       the Yamaha … motorbike in his possession;

   (c)       the furnishings, chattels and contents currently in his possession;

   (d)       the balance standing in any bank accounts in his name;

(e)       his entitlement to superannuation with No 3 private superannuation fund.

1. In accordance with s 90MT(1)(b) of the Family Law Act 1975 (Cth), whenever a splittable payment within the meaning of s 90ME of the Act becomes payable to or on behalf of the husband from his interest in the No 4 Superannuation Fund, the wife is entitled to be paid (by the Trustee of the No 4 Superannuation Fund) 100% of each splittable payment of the Husband’s interest in the Fund and there is a corresponding reduction in the entitlement the husband would be entitled to receive but for this Order.

1. The operative time for Order 16 is twenty-eight (28) business days after the service by the Wife of the Final Orders on the Trustee of the No 4 Superannuation Fund, and, in the absence of any application by the Trustee to the Court pursuant to paragraph 18 below, the Trustee of the No 4 Superannuation Fund shall be bound by the terms of this Order.

1. Liberty is reserved to the said Trustee to apply to this Court about the Orders made or the form thereof within the period of twenty-eight (28) days after service of a copy of these Orders on the Trustee.

(18A) Liberty is reserved to the Wife to apply to this Court about the form of the Order contained in paragraphs 16 and 17 above in the event that the Trustee of the No 4 Superannuation Fund raises issue with the same.

1. The husband and wife each be responsible for and meet payment when due of all liabilities in their own name and not otherwise dealt with in these orders (including but not limited to any credit card debts, personal loans and any other outstanding liability held by each party) and indemnify and keep indemnified the other in relation to same.

1. Save as specifically provided for in these Orders, each of the parties shall retain, to the exclusion of any present or future right, title, claim or interest of the other, any property of whatever type or description currently in their respective possession.

1. The Husband be responsible for the preparation of the documentation necessary to give effect to the provisions of orders 3 and 4 at his cost and further be responsible for the payment of registration fees in relation to the transfer of the M Street property to his name.

1. Each party do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of these orders and, within 24 hours of a request to do so, each party shall do all acts and things necessary and execute all documents and instruments necessary to put into effect the terms of this Order.

1. In the event that a party fails to comply with a request to do an act or execute any document necessary to give effect to the terms of this Order, or fails, refuses or neglects to do any act or sign any document necessary to give effect to the terms of this Order then, pursuant to s 106A of the Family Law Act, the Registry Manager of the Family Court of Australia is hereby appointed to execute any document on behalf of the party who has failed, refused or neglected to sign the same and is also appointed to do any act or thing necessary to give effect to the terms of this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brandon & Brandon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10849 of 2009

Ms Brandon

Applicant

And

Mr Brandon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Having read the material for trial, including material relevant to issues of property, I am satisfied that the Orders reflected in the Minute of Consent Orders handed up by the parties constitute a just and equitable outcome and I therefore make Orders in terms of that Minute of Consent Orders as set out at the commencement of these reasons.

I certify that the preceding one (1) paragraph is a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 April 2012.

Associate: 

Date: 23 April 2012