Brewer & Brewer
[2022] FedCFamC2F 804
•20 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brewer & Brewer [2022] FedCFamC2F 804
File number(s): HBC 1280 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 20 June 2022 Catchwords: FAMILY LAW – property – where final orders sought by consent at commencement of hearing – except regarding one discrete issue - hearing proceeded on discrete issue
FAMILY LAW – property – whether the Court has power pursuant to section 79 of the Family Law Act 1975 to make orders allowing a party to attend a property when there is no longer a dispute about property adjustment – where Court has power to make such an order for a legitimate purpose which is logically and reasonably connected to anything still in – finding that no such legitimate purpose for order sought on facts – application dismissed
Legislation: Family Law Act 1975 (Cth) ss 45, 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 10(1)(a), 132, 140
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rr 5.16, 10.12
Cases cited: Marriage of Hickey (2003) 30 Fam LR 355
Marriage of Suiker (1993) 117 Fam LR 236
Stanford v Stanford [2012] HCA 52
Wagstaff & Wagstaff [2018] FCCA 927
Division: Division 2 Family Law Number of paragraphs: 47 Date of hearing: 12 May 2022 Place: Hobart Counsel for the Applicant: Mr G Bradfield Solicitor for the Applicant: Tierney Law Counsel for the Respondent: Mr M Foster Solicitor for the Respondent: Murdoch Clarke ORDERS
HBC 1280 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BREWER
Applicant
AND: MS BREWER
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 JUNE 2022
BY CONSENT, THE COURT ORDERS THAT:
1.There be orders, declarations and notations made in terms of the document entitled “Consent Orders”, attached hereto and marked “A”, signed by the Applicant and the solicitor for the Respondent and dated 11 May 2022.
THE COURT ORDERS THAT:
2.Within 14 days of the date of Order herein, the Respondent Wife will facilitate the collection by the Applicant Husband’s nominee/s of the pool table situated at C Street, Suburb D in Tasmania.
“A”
CONSENT ORDERS
C Street, Suburb D (CT Volume … Folio …)(“the Acquired Property”)
1.THAT all monies payable to the parties (hereinafter referred to as “compensation”) by or on behalf of the Crown in accordance with the Land Acquisition Act 1933 (TAS) by way of compensation in relation to the acquisition of land from the parties owned by the parties being the Acquired Property, shall be equally divided between the parties, and for the purposes of this Order, the moneys already paid to either party or the assets or investments purchased from those moneys remain that party’s property/investment to the exclusion of the other party.
2.THAT all matters of and incidental to the process of negotiation, litigation, arbitration or any other aspect of the process of resolving compensation as aforesaid including the making of offers and the acceptance of offers shall be conducted by the parties jointly and upon such terms as they may agree from time to time and in default of agreement upon such terms as may be ordered by the court and the parties shall bear their own costs arising from the contested land compensation process.
C Street, Suburb D (CT Volume … Folio …)(“the C Street, Suburb D Property”)
3.THAT the parties do all acts and things to sign all documents to complete the current contract between the parties and E Pty Ltd dated 12 April 2022.
4.THAT the parties do all acts and things to effect the proceeds of sale to be dispersed with in accordance with the following priority:
4.1In payment of the reasonable fees and disbursements of the Agent Mr F of G Real Estate;
4.2In payment of the reasonable fees and disbursements of the Conveyancers acting in the sale;
4.2.1For the purposes of Order 4.2, Tierney Law and Murdoch Clarke are engaged as conveyancers in the sale on a two-thirds/one-thirds basis with Tierney Law being the primary conveyancer;
4.3 In payment of any municipal rate adjustment;
4.4To the Applicant Husband an amount equivalent to one half of the municipal rate adjustment paid pursuant to Order 4.3 herein; and
4.5 The balance to be divided equally between the parties.
5. THAT pending completion of the sale of the C Street, Suburb D Property:
5.1The Respondent Wife have sole use and occupation of the C Street, Suburb D Property;
5.2The Respondent Wife be responsible for all rates, taxes, statutory charges and other outgoings for the C Street, Suburb D Property from 1 July 2020 and insurances such as to cause the C Street, Suburb D Property to be insured at the full replacement value and indemnify and keep indemnified the Applicant Husband in relation to any claims, suits, action, demand or liability which may arise against the Applicant Husband in relation thereto; and
5.3The Respondent Wife indemnify and keep indemnified the Applicant Husband in relation to any costs incurred to facilitate the removal of any chattels that are not the property of the Applicant Husband from the C Street, Suburb D Property.
6.THAT within 14 days of the date of Order herein, the Respondent Wife will facilitate the collection by the Applicant Husband’s nominee/s of the following items situated at the C Street, Suburb D Property:
6.1The Applicant Husband’s mother’s engagement rings and any rings the Respondent Wife does not intend to keep;
6.2H crockery; and
6.3 The Tea Trolley.
7.THAT for the purpose of the collection of the items pursuant to Order 6 herein, the Applicant Husband’s nominee will be Mr J and/or Mr K and/or professional removalists.
8.THAT within 7 days of the date of Order herein, the Respondent Wife shall relinquish in favour of the Applicant Husband all of her right, title and interest in the Safe subject to the following:
8.1The Respondent Wife will retain any personal documents in the Safe pertaining to her;
8.2The Applicant Husband will retain any personal documents in the Safe pertaining to him and that they be delivered to him within 7 days of date of Order herein;
8.3The Safe and shall remain in the physical possession of the Respondent Wife for the duration of her life or until she no longer wishes to retain these items;
8.4The Respondent Wife be restrained from selling, transferring, assigning, encumbering, intentionally or wilfully damaging the Safe unless as otherwise provided for in these Orders;
8.5At such time as the Respondent Wife is deceased or no longer wishes to retain the Safe, whichever occurs first, the Safe is to be relinquished and delivered to the Applicant Husband forthwith;
General
9.THAT the Respondent Wife forthwith relinquish in favour of the Applicant Husband and, if necessary, transfer to him all of her right, title and interest in the following items of property:
9.1The house and land situated at and known as L Street, Town M being the property described in in Certificate of Title Volume … Folio …;
9.2The Motor Vehicle 1 registration number …;
9.3The Motor Vehicle 2 registration number …;
9.4The Motor Vehicle 3 registration number …;
9.5The items retained by the Applicant Husband pursuant to Order 6;
9.6All chattels and personal effects in the Applicant Husband’s possession; and
9.7All savings and investments held by the Applicant Husband.
10.THAT the Applicant Husband forthwith relinquish in favour of the Respondent Wife and, if necessary, transfer to her all of his right, title and interest in the following items of property:
10.1 All chattels and personal effects in the Respondent Wife’s possession; and
10.2 All savings and investments held by the Respondent Wife.
11.THAT unless otherwise specified in this Order and except for the purposes of enforcing the payment of any money due or any act required to be done under this Order:
11.1Each party shall be solely entitled to the exclusion of the other, to all property (including choses-in-action) in the possession of or under the control of such person as at the date of this Order;
11.2Money standing to the credit of either party in any bank account is to become the property of the party names as the holder of that account;
11.3Each party forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
11.4All insurance policies are to become the sole property of the beneficiary named thereunder;
11.5Each party be solely liable for and is to indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order;
11.6Each party indemnifies the other for any debts of that party as at the date of and from this Order;
11.7Neither party shall incur in the name of the other any account, debt or other liability; and
11.8Any joint tenancy of the parties in real or personal property is hereby expressly severed.
12.THAT each party unless otherwise provided for herein shall do all acts and things including providing all requisite consent and authority and sign all requisite documentation to give effect to the Order herein.
13.THAT in the event either party refuses or neglects to sign any document necessary to implement the Order herein either wholly or in part within 14 days of request to do so and upon an affidavit being filed in the Federal Circuit and Family Court of Australia by the non-defaulting party setting out the failure then pursuant to Section 106A of the Family Law Act 1975 the Registrar of the Federal Circuit and Family Court of Australia is appointed to execute such document or documents in the name of the defaulting party and the Registrar to do all acts and things to give full force and effect to the Order herein; and the non-defaulting party be at liberty to apply for a costs Order against the defaulting party.
14.THAT all extant applications be otherwise dismissed.
15. THAT the parties pay their own costs of and incidental to these proceedings.
NOTATIONS
IT IS NOTED that it is the intention of the parties that pursuant to Section 81 of the Family Law Act 1975 the provisions of this Order shall as far as possible finally determine the financial relationship between the parties AND THAT each party accept the provision of this Order in full and final settlement of any right or rights that he or she has now or may have had now or in the future against the other to claim an alteration of interest in property acquired during the marriage and referred to in this Order and to spousal maintenance or otherwise under provisions of Part VIII of the Family Law Act 1975 as amended.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Brewer & Brewer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
These proceedings concern property adjustment between Mr Brewer (“the husband”) and Ms Brewer (“the wife”), who were married in 1965 and finally separated on either 12 or 13 June 2020 according to the wife and husband respectively.[1] The difference in date is not relevant to what the Court is required to decide.
[1] Affidavit of the wife filed 12 April 2022 at [7]; affidavit of the husband filed 10 May 2022 at [10].
The proceedings were commenced by the husband on 23 December 2020. The marriage was a long one, and the husband is now aged 79 years and the wife aged 76 years.
After various pre-trial appearances, an unsuccessful conciliation conference, dismissal of an Application in a Proceeding filed 22 October 2021 and orders for valuation of real estate, the matter was set down for a defended hearing to commence on 12 May 2022.
By the time of the defended hearing, I was advised that the parties had reached agreement in respect of the vast majority of issues in dispute between the parties. A minute of consent orders was submitted by the parties reflecting the final orders jointly sought. Further, the husband sought additional orders in accordance with paragraph 6 of his Amended Application filed on 14 April 2022 (“the additional orders”).
Accordingly, subject to the Court being satisfied that the orders sought by consent were ultimately just and equitable in the circumstances, the hearing proceeded on the confined issue of whether the Court ought to make the additional orders sought.
THE ADDITIONAL ORDERS SOUGHT BY THE HUSBAND
In summary, the additional orders sought were to permit the husband to enter onto the property that had been the parties’ matrimonial home for many years at C Street, Suburb D in Tasmania (“the property”). This was initially said to be for the purpose facilitating the collection of personal belongings which the husband may have forgotten. The proposed order sought is detailed as to the mechanism that would operate if the Court made the additional orders. Its terms at face value appear to address the wife’s concerns about alleged family violence.
The husband’s case
Counsel for the husband sought to read the husband’s affidavit filed 10 May 2022 and it was read unopposed. The wife’s counsel did not seek to cross-examine the husband.
The husband’s evidence was in substance and summary that, although he had reached agreement in relation to adjustment of property interests pursuant to section 79 of the Family Law Act 1975 (Cth), he sought to be permitted to access the property from where he was no longer residing.
His evidence explained that he had received chattel items from the property on 9 December 2021, pursuant to an agreement made through the parties’ lawyers that he would be entitled to receive certain items. He says that on inspecting the items received, there are a number of significant items which he can recall that are missing.
The husband then deposes as follows, in summary:
·After receipt of the items on 9 December 2021, through his lawyer, he requested to be allowed to visit the property in the company of both parties’ lawyers at an agreed time, to refresh his memory as to what is there by way of chattels and personal property so as to make a list of the same for the purpose of determining what other claims he ought make;
·This request was denied;
·On 28 April 2022 in an attempt to conciliate, he proposed to forego everything at the property that he may wish to retain in exchange for simply receiving four items of sentimental value being:
·the safe and its contents;
·the pool table;
·his mother's engagement rings; and
·his mother’s H crockery together with the tea trolley they were on;
·At the time of affirming his affidavit, he had not returned to the property since he left it following the making of a Police Family Violence order on 13 June 2021;
·He has not been able to make a full list of items of sentimental value that he may wish to retain and he is unsure if there is anything else that belongs to him that may still be at the property; and
·He is 79 years of age and he cannot remember all of the items that have fond sentimental attraction without seeing them.
At [32] of his affidavit, the husband then states that he is resigned to not claiming any further items, but cannot mentally move on until he has some voluntary presence at the home he has had for the last 28 years, and he seeks to be allowed to settle his mind in that regard.
Regarding allegations of family violence by the wife, he admits orders have been made but denies the allegations made against him or that he has perpetrated any form of family violence against the wife.
The wife’s case
Counsel for the wife simply sought to rely on confined passages of her affidavit filed 12 April 2022, namely paragraphs 6 to 11. In summary the evidence contained within these passages was to the following effect:
·The parties finally separated on 12 June 2020, when the husband was removed from the property by Tasmania Police;
·Since separation on 12 June 2020, the husband has stalked and harassed her continuously, including monitoring her and watching the property;
·She has found this behaviour very distressing and had to apply for a Family Violence Order, which was made on 5 October 2021 and will not expire until 5 October 2023;
·That on 13 July 2020, the husband’s son Mr K attended the property and collected all of the husband’s personal belongings. Subsequently, Mr J, a friend of the husband, attended the property on two further occasions to collect other items. Mr J used a truck and the items taken subsequently were substantial;[2]
·A substantial quantity of other items were again arranged to be collected using the truck. In terms of value, the items the husband has taken or received in four separate collections represent most of the value of the chattels which the parties had at the time of separation;
·If the husband seeks further chattels that remain at the former matrimonial home all chattels should be valued to ascertain if there ought to be any further adjustment between the parties. The husband has refused to agree to such an arrangement;
·The husband has purchased his own accommodation subsequent to his removal from the property by police.
[2] The affidavit of the wife filed 12 April 2022 at [8] refers to this occurring in February 2020, but must be typographical error at the parties were not separated.
To appreciate the basis of the wife’s objection to the husband returning to the property for the purposes he sought, the wife’s counsel tendered the following documents into evidence:
(a)Exhibit R-1: an application for variation of a Police Family Violence filed on 26 May 2021;
(b)Exhibit R-2: a copy of the Interim Family Violence Order made 8 June 2021;
(c)Exhibit R-3: a copy of the Family Violence Order made on 5 October 2021; and
(d)Exhibit R-4: an affidavit in support of that application marked Exhibit R-1 and filed the same date.
The solicitor for the husband cross-examined the wife. She stated that she was still living at the property and pursuant to the orders sought by consent, was entitled to remain there pending its sale. She did not want the husband to attend the property under any circumstances.
The wife was asked about the chattel items specifically raised by the husband in his Amended Application. She stated that she still wished to retain the safe and its contents, but they had reached agreement as to the rest, saying that the husband has his mother’s engagement rings and that he can have the crockery and the tea trolley. She also conceded that the husband could have the pool table.
It was put to the wife that if the husband visited the property in the presence of a police officer and without her in attendance, there would be no physical harm to her. The wife agreed, adding, “but I do not see the purpose of it”. Pressed that she would not be harmed, the wife conceded that she would not be harmed if she was not there, it was obvious.
The parties’ submissions
It was common ground that agreement reached between the parties and set out in the minute of proposed consent orders, reflected an adjustment of the parties’ net assets on a 50/50 basis.
Counsel for the wife submitted that there had been a chattel division between the parties as is evidenced by the wife’s affidavit material, and that the husband has conceded that he makes no further claim in respect of the chattel items.[3] He submitted that the evidence establishes that he simply wishes to say goodbye to the property.
[3] Affidavit of the husband filed 10 May 2022 at [32].
As such, there is no proper basis for making the orders sought in property proceedings, which were to be determined pursuant to section 79 of the Act.
Counsel for the wife also submitted that, despite his primary submissions, if the Court were minded to make an order that the husband could attend the property to identify any further chattels that he sought to retain, the proceedings would not be concluded as there would need to be evidence and the opportunity to make submissions as to what is a fair division of the overall chattels owned by the parties.
Counsel for the wife emphasised that there had been no valuation of the items retained by the wife and those already received by the husband, and that the unchallenged evidence from the wife is that the husband already had received much more value than the wife by way of chattels.[4]
[4] Affidavit of the wife filed 12 April 2022 at [9].
In conclusion, counsel for the wife submitted that there is no jurisdiction for the Court to make an order in the term sought to simply to say goodbye to the property. Further, he submitted that the order sought would not provide finality, something required when the Court makes final orders.
Counsel for the husband reiterated that despite seeking the order permitting the husband to enter the property for the purpose stated in his affidavit filed 10 May 2022 at [32], he would not seek to make further claims and accepted that apart from also receiving the pool table, about which the wife made a concession, final orders should be made in the terms of the consent minute.
I specifically enquired of counsel for the husband as to whether the husband abandoned any additional claims to chattels or personal property, beyond what was reflected in the consent minute plus the pool table. This was confirmed.
Noting the wife’s submission referred to at [23] above, I directly requested a submission from the husband’s solicitor about what power the Court had to make the order sought where there was no longer any dispute about chattels and personal property and where there was agreement about the orders to be made pursuant to section 79 of the Act.
Counsel for the husband contended that the order was one I could make pursuant to section 79 of the Act; he submitted that what was sought is similar to an order to enter property for the purposes of conducting a valuation and was akin to a limited licence to enter property.
I observed that in this case there was no longer a dispute about the orders to be made under section 79 and enquired, if there was power, what purpose did it serve to make the order when the parties agreed what property adjustment orders should be made. The husband’s solicitor submitted that the purpose was said to be to give the husband finality and comfort emotionally. When I asked for authority in support of the principle that the Court has power to make an order for such a purpose under section 79 of the Act, husband’s counsel stated he could not direct me to any.
I also asked counsel for the husband whether the Court could or should make an order that on its face would be a breach of the Family Violence Order in force until October 2023. In response, a short submission was made that the Commonwealth laws took priority and I could make an order contradictory to the State order. I did not receive a satisfactory answer to the comment that this would expose the husband to being in contravention of the Family Violence order.
EVALUATION AND DETERMINATION
The husband makes no further claims to personal property or chattels, despite what is sought in paragraph 6 of the Amended Application. His counsel confirmed that no further claims are made and that final property adjustment orders should be made according to the consent minute submitted by the parties during the hearing, but also including an order for the husband to receive the pool table.
This leaves the Court to determine whether, in property proceedings, the Court should make an order to give emotional or psychological comfort to a party by allowing a visit to the property when there is no longer a dispute about property adjustment and there is a State order prohibiting entry.[5]
[5] Exhibit R-3.
As final orders have not yet been made, the Court is seized of all jurisdiction it has under section 79 of the Act and the ancillary and relevant powers to make orders under the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).[6]
[6] Sections 10(1)(a), 132 and 140 of the Federal Circuit and Family Court Act 2021 (Cth); Rules 5.16 and 10.12 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).
In any proceedings for adjustment of property, the Court is required to undertake a final step in the determinative process to be satisfied that it is just and equitable to make particular orders.[7] In my view, this entails being satisfied that where parties are seeking final orders by consent, such consent is freely offered and properly informed.[8] I raised this with counsel for the wife during his submissions.
[7] Stanford v Stanford [2012] HCA 52 at [35] and [36]; Wagstaff & Wagstaff [2018] FCCA 927 at [118] to [137]; Marriage of Hickey (2003) 30 Fam LR 355.
[8] Marriage of Suiker (1993) 117 Fam LR 236 pp 241-242.
The husband’s case initially appeared to be that he sought the additional orders for the purpose of potentially making further claims to chattels and personal property, as he said he wants to identify and list property that he may have forgotten. However, it is clear from [32] of his affidavit and the exchange with his counsel during the hearing, that he is now resigned not to make any further claims. He seeks the additional order solely for the emotional purpose of enabling him to move on. He has taken this position with the benefit of legal advice and conscious that there may be items he has forgotten.
If the husband’s case was that he sought the order permitting entry to settle his mind that he would not make further claims – that is, to fully inform himself that the orders in the consent minute are ones to which he ought to consent – I would likely have been persuaded to make a limited order permitting the husband to return to the property for that purpose.
I consider that the Court has the power to make the type of order sought pursuant to the legislative provisions referred to at [32] of these reasons. However, there must be a legitimate purpose to exercising the power and that must be a purpose logically and reasonably connected to what is in issue between the parties about what property orders should be made on just and equitable terms.
Furthermore, I am not persuaded to make an order permitting the husband to enter the property, when it would place him in contravention of an order made by another court.
The husband denies family violence, and I do not make any finding about this. However, he did ultimately consent to the October 2021 Family Violence Order which restrains him from entering the property for two years. He may have had reasons for consenting, but that does not detract from the fact that he acceded to the order being made when he ought to have reasonably envisaged that it would prevent his return to and entry on the property for the purpose he now seeks.
In my view it is incongruous to the promotion of consistency in the administration of justice for this Court to make orders of the kind sought when:
(e)It is not necessary to determine or aid finalisation of a particular issue in controversy as there is no legitimate purpose to do so, connected to the issues in dispute; or
(f)Such an order would be inconsistent with another court’s order; or
(g)To do so would potentially be an abuse of process and would detract from the Court’s function.[9]
[9] Eg Section 45 of the Act and Rule 5.16 and Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).
I initially had some concern that the husband may not be freely consenting to the final orders included in the consent minute. However, having carefully read his affidavit and noting the submission of his counsel recorded at [25] above, I am satisfied he has given his consent on a fully-informed basis, freely and upon legal advice.
The fact that the Court has had to determine this matter is exceptionally regretful, particularly in light of the wife’s concessions that she would not be harmed if the husband were allowed to return to visit the property in the company of a police officer when she was not present, and he would not be allowed to remove any property.
The wife’s opposition to the order was said in her affidavit to be based on her experience of alleged family violence,[10] but her evidence during cross-examination referred to at [17] of these reasons suggests otherwise.
[10] Affidavit of the wife filed 12 April 2022 at [9].
Regardless of the basis for her opposition, the position adopted by the wife could on one view be regarded as harsh and punitive, depriving the husband from saying “goodbye to the property” as counsel for the wife put it, when the wife will be afforded that very opportunity.
The parties have had a long marriage, they are in their later years of age and health. It was not challenged that the husband made a specific contribution to building the home on the property,[11] and that both parties shared a large proportion of their lives there with family. As indicated at the outset of the hearing, the parties could have reasonably accommodated the husband’s wish to say a final goodbye to the property and could have encompassed appropriate terms in the consent minute.
[11] Affidavit of the husband filed 10 May 2022 at [12].
CONCLUSION
For the reasons given at [32] to [40], on the basis of legal principle, I am not satisfied I should make the additional order sought by the husband. However, there is nothing preventing the wife reconsidering her position, and I again encourage the parties to come to a private arrangement assisted by a police officer.
As to the final property orders the parties sought by consent, I raised some issues needing attention. They were that:
(a)There was ambiguity as to the terms of Paragraph 2 of the consent minute. Counsel agreed that the Court should make the order according to Paragraph 2, but varied in the last two lines to read “own costs arising from the contested land compensation process”; and
(b)The terms of Paragraph 8.6 of the consent minute appeared to be illogical. Counsel agreed that it ought to be deleted and that the Court should not make an order in the terms of that paragraph.
The application for an order in the terms of paragraph 6 of the Amended Application is dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 20 June 2022
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