CALDWELL & HILLS

[2018] FamCA 1004

FAMILY COURT OF AUSTRALIA

CALDWELL & HILLS [2018] FamCA 1004

FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure

Family Law Act 1975 (Cth)

APPLICANT: Ms Caldwell

RESPONDENT: Mr Hills

FILE NUMBER: SYC 7626 of 2015

DATE DELIVERED: 29 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 26 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Knight

SOLICITORS FOR THE APPLICANT: Marsdens Law Group

THE RESPONDENT: Mr Hills appeared on his own behalf

Orders

1. Within 14 days of these Orders the husband will provide to the wife by way of disclosure copies of all of his credit card statements for the period September 2018 to date.

2. Otherwise, the wife's Application in a Case filed on 16 July 2018 and the husband's Response to an Application in a Case filed on 30 August 2018 and the wife's Minute of proposed orders filed on 26 November 2018 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7626  of 2015

Ms Caldwell

Applicant

And

Mr Hills

Respondent

REASONS FOR JUDGMENT

The proceedings

1. By an Application in a Case filed on 16 July 2018 the applicant wife,

   
   

   Ms Caldwell, sought orders for the sale of an investment property at B Street, C Town, which is jointly owned by the parties.  In this Application in a Case the wife sought orders that she receive a sum of $20,000 and that the balance of the net sale proceeds be lodged in a controlled monies account pending final resolution of the proceedings.  The wife also sought orders for disclosure and provision of financial documents by the respondent husband, Mr Hills.

2. By a Response to an Application in a Case filed on 30 August 2018 the respondent husband sought the following orders:

   1.That the court dismiss orders 1 to 10 sought by the applicant in her application filed on the 16 July 2018.

   2.The respondent shall within 28 days of the date of the order, pay to the applicant the sum of $20 000 as a partial property settlement with such payment to be made to her nominated bank account.

   3.That within 14 days of being advised that the matter has been listed for final hearing the applicant shall nominate the names of three valuers.

   4.That within 14 days thereafter the respondent is to choose one of those named valuers to carry out a valuation on the property at [B Street, C Town].

   5.That within 14 days thereafter the parties are to jointly instruct the valuer to carry out the valuation.

   6.The parties shall each pay half the cost of the valuation.

   7.That within 42 days of the court handing down a final decision in relation to the property matter the respondent is to refinance the property at [B Street, C Town] into his name only and pay the applicant the amount awarded by the court with such an amount to take into account the payment to the applicant in accordance with order 7.

   8.Simultaneous with the payment in terms of order 7 the applicant shall transfer her interest in the property to the respondent.

   9.In the event the respondent is unable to refinance and make the payments to the applicant in accordance with order 7 then the property is to be sold in accordance with the orders sought by the applicant and number 1 to 5 in her application dated 16 July 2018.

   10.That each party shall do all acts and things necessary and give all consents and execute all document and writing to give effect to these orders in the time periods prescribed.

   11.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

3. On the day of the interim hearing, being 26 November 2018, the wife submitted a Minute of Orders sought in the following terms:

   1.That within 7 days of the date of these orders the Solicitor for Applicant Wife shall provide the Respondent Husband with the names of three real estate agents and the Respondent Husband shall nominate one of the real estate agents provided by the wife.

   2.That within 7 days of the date of these orders the Solicitor for Applicant Wife shall provide the Respondent Husband with the names of three conveyancers and the Respondent Husband shall nominate one of the conveyancers provided by the wife.

   3.That within 14 days from the date of these Orders the parties are to do all such things and sign all documents necessary to engage the real estate agent and conveyancer as determined by orders 1 and 2.

   4.That within 14 days from the date of these Orders the parties shall forthwith do all acts and things and sign all documents necessary to cause the property situate at and known as [B Street, C Town] to be sold by private treaty at the earliest possible date at a price to be agreed on between the parties following the recommendations of the engaged real estate and failing such agreement at a price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:

   4.1Payment of agent's commission and advertising expenses and legal expenses of the sale.

   4.2      Payment of the outstanding mortgage to [D Bank].

   4.3Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.

   4.4The balance then remaining to be deposited into a controlled monies account, with the account to be as agreed between the parties and failing agreement then as nominated by the Applicant Wife.

   5.That the parties shall do all acts and things necessary to give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.

   6.That within 14 days from the date of these orders the Respondent Husband shall provide to the Applicant Wife solicitors the following:

   6.1Copies of statements of all accounts with banks, credit unions, building societies or other financial institutions held by the Respondent as at the date of separation, including:

   1.        Name of financial institution;

   2.        Account name;

   3.        Account number;

   4.        Account balance; and

   6.2Particulars of all shareholdings held by the Respondent or held on behalf of the Respondent for his benefit, including:

   1.        Name of institution;

   2.        Name of shareholder(s);

   3.        Share value;

   4.        Current Statement.

   6.3Particulars of all credit cards, personal loans, mortgages and other liabilities you hold, including:

   1.        Name of financial institution;

   2.        Account name;

   3.        Account number;

   4.        Account balance; and

   5.        Statements from the last 12 months to present.

   7.That within 14 days of these orders the Respondent Husband provides particulars and supporting documentary evidence in response to correspondence dated 15 June 2017 and 20 June 2017 to the Applicant Wife's solicitors.

   8.That within 14 days the Respondent Husband shall provide to the Applicant Wife's solicitors a copy of his current lease documents for the premises he resides in.

   9.That within 14 days the Respondent Husband shall make his Australia[n] passport available for inspection by the Applicant Wife's solicitor and the Applicant Wife solicitor shall be permitted to photocopy such passport.

   10.That the Respondent Husband pay the Applicant Wife's costs associated with these proceedings."

Background

1. The husband and the wife, who are aged 47 and 48 respectively, married in 1999 and separated on 30 October 2015.  The parties have three children:

   ●        X born in 2004 (14)

   ●        Y born in 2006 (12)

   ●        Z born in 2008 (10).

   The husband deposed that the children spent nine to ten days per fortnight in his care until recently and that the child X now has begun to live with him on a full-time basis.

2. The parties are joint owners of the property B Street, C Town, which is encumbered by a mortgage in an amount of approximately $161,400.  The mortgage repayments amount to $709 per fortnight and are not covered by the rental income generated by the property.  The husband deposed that total rental income in the 2018 financial year was $15,704 and that mortgage repayments amounted to $18,340.  The husband's uncontradicted evidence was that he has paid this shortfall and also council rates in respect of the property.

3. In his Reply filed on 12 April 2016 the husband sought inter alia an order that the wife transfer to him the whole of her right title to and interest in the C Town property, upon payment to her of a sum equal to 35 per cent of its net value.  The husband's father, Mr Hills Snr, swore in an affidavit of 31 August 2018 that he is willing and able to provide funds to enable his son to acquire the wife's interest in the property.

4. The husband's father deposed further that he is prepared to provide a sum of $20,000, for payment to the wife, as sought in her Application in a Case of 16 July 2018.  As noted, the wife sought orders to the effect that the parties sell the C Town property and that she receive a sum of $20,000 from the net proceeds, with the balance to be lodged in a controlled monies account pending finalisation of the proceedings.

Consideration

Sale of the C Town property

1. The husband has taken appropriate steps to secure payment to the wife of the sum of $20,000 without the necessity of a sale of the C Town property.  In my view the husband thus demonstrated that he has a real and serious desire to retain the property on a final resolution of these proceedings.  Obviously, a sale of this property at the present stage would defeat the final orders sought by the husband.

2. The wife abandoned her application for payment to her of a sum of $20,000 only at the commencement of the interim hearing.  The wife's legal representative stated that she did so because her arrangements with Centrelink are "complicated" due to the notional rental income from the C Town property and that her social security payments could be "jeopardised" by payment of a lump sum of $20,000.  There was no evidence adduced in the case for the wife as to her situation vis-a-vis Centrelink.

3. I am not prepared to order a sale of the C Town property at this stage of the proceedings, as such a step would defeat completely the final relief sought by the husband.  I am conscious that the wife adduced no evidence of her alleged difficulties with Centrelink payments due to notional rental income from the investment property.

4. The Financial Statements filed by each of the parties indicated that they possess few assets in addition to the C Town property.  The husband has superannuation in an amount of approximately $90,000 and the wife holds an interest in three funds with a total value of about $6,000.  In these circumstances, the parties would be advantaged by a realistic attempts to resolve their financial issues.

Disclosure

1. In the Minute submitted on 26 November 2018, the wife sought a number of orders for disclosure by the husband.  Her legal representative indicated that she sought information as set out in paragraph 6 of the Minute.

2. The husband indicated that he has provided documents in accordance with paragraph 6.1 of the Minute and the wife did not contend otherwise.  Accordingly, I will make no such order.

3. The husband indicated that he holds no shares and, accordingly, has no documents to produce in accordance with paragraph 6.2 of the Minute.  I will make no such order.

4. As to paragraph 6.3 of the Minute, the legal representative of the wife stated that the husband has produced credit card statements for the period up to September 2018.  The husband said that he will provide the additional statements and I will make such an order.  The wife's lawyer conceded that she could obtain statements in relation to the mortgage account as a joint borrower, thus there is no necessity for such an order.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 29 November 2018.

Associate: 

Date:  29 November 2018