FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clement & Clement [2023] FedCFamC2F 1415
File number(s): PAC 1361 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 3 November 2023 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Eufrosin & Eufrosin [2014] FamCAFC 191
Lotta & Lotta [2017] FamCA 50
Division: Division 2 Family Law Number of paragraphs: 80 Date of hearing: 19–20 October 2023 Place: Parramatta Counsel for the Applicant: Ms R Druitt Solicitor for the Applicant: Caldwell Martin & Cox Counsel for the Respondent: Mr P Livingstone Solicitor for the Respondent: Marsdens Law Group ORDERS
PAC 1361 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CLEMENT
Applicant
AND: MS CLEMENT
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
3 NOVEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
1.These Orders are made by way of alteration of property interests pursuant to section 79 of the Family Law Act 1975 (Cth).
Suburb C property
2.Within 60 days from the date of these Orders, the parties shall do all such acts and things and execute all such deeds, documents and instruments as may be necessary to list for sale and sell the property located at B Street, Suburb C (‘Suburb C property’) by private treaty for a sale price and a list price and with an agent to be agreed upon between the parties or in default of such agreement as to price for more than 14 days at a price determined to be a fair market price by the listing agent or their nominee whose decision shall be final and binding upon the parties, and the parties shall distribute the proceeds of sale in the following order and priority:
2.1In discharge of the National Australia Bank loan Account no. ending …33;
2.2In payment of legal costs, real estate agent’s commission and GST upon the said sale;
2.3In payment of any fees due for the nomination of a valuer and fixing of a price as hereinbefore provided, in payment of valuation fees, and GST, if any;
2.4In payment of municipal council and water rates;
2.5The payment of $560,175 to the Respondent Wife;
2.6The payment of $506,825 to the Applicant Husband.
3.That in the event that the Suburb C property has not been sold within three (3) months from the date it is listed for sale in accordance with Order 2 above, the parties shall forthwith thereafter do all such acts and things including executing all such deeds, documents and instruments as may be necessary to list for sale and sell the Suburb C property by way of public auction for a reserve price to be agreed upon between the parties or in default of such agreement as to price for more than 14 days at a price determined to be a fair market price by the listing agent whose decision shall be final and binding upon the…
Continue reading Clement & Clement
Sign in free to access the full text
- AGLC
- Clement & Clement [2023] FedCFamC2F 1415
- Case
- [2023] FedCFamC2F 1415
- Decision Date
CaseChat Overview and Summary
The court ruled that both residential properties must be sold, with proceeds distributed according to a detailed order. If the properties were not sold within three months, they were to be auctioned with decreasing reserve prices. The court also ordered the conversion of the couple's self-managed superannuation fund into cash, to be divided and transferred to individual accounts. Personal belongings and household contents were to be divided between the parties, with specific items allocated to Ms Clement. The court further ordered the equal division of funds in a joint bank account and specified that each party would be responsible for certain debts and liabilities. The final orders declared the parties as the sole legal and beneficial owners of their respective assets and liabilities not specifically divided by the court.
The final orders mandated the sale and division of properties, conversion and distribution of superannuation funds, allocation of personal belongings, and division of debts and liabilities. Each party was required to execute necessary documents to effect these orders, with provisions for the Judicial Registrar to intervene if either party failed to comply. The court granted liberty to apply for any issues related to the implementation of these orders.
Orders
Orders of the court
PAC 1361 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CLEMENT
Applicant
AND:
MS CLEMENT
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
3 NOVEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
1. These Orders are made by way of alteration of property interests pursuant to section 79 of the Family Law Act 1975 (Cth).
Suburb C property
2. Within 60 days from the date of these Orders, the parties shall do all such acts and things and execute all such deeds, documents and instruments as may be necessary to list for sale and sell the property located at B Street, Suburb C (‘Suburb C property’) by private treaty for a sale price and a list price and with an agent to be agreed upon between the parties or in default of such agreement as to price for more than 14 days at a price determined to be a fair market price by the listing agent or their nominee whose decision shall be final and binding upon the parties, and the parties shall distribute the proceeds of sale in the following order and priority:
2.1 In discharge of the National Australia Bank loan Account no. ending …33;
2.2 In payment of legal costs, real estate agent’s commission and GST upon the said sale;
2.3 In payment of any fees due for the nomination of a valuer and fixing of a price as hereinbefore provided, in payment of valuation fees, and GST, if any;
2.4 In payment of municipal council and water rates;
2.5 The payment of $560,175 to the Respondent Wife;
2.6 The payment of $506,825 to the Applicant Husband.
3. That in the event that the Suburb C property has not been sold within three (3) months from the date it is listed for sale in accordance with Order 2 above, the parties shall forthwith thereafter do all such acts and things including executing all such deeds, documents and instruments as may be necessary to list for sale and sell the Suburb C property by way of public auction for a reserve price to be agreed upon between the parties or in default of such agreement as to price for more than 14 days at a price determined to be a fair market price by the listing agent whose decision shall be final and binding upon the parties on the following terms:
3.1 That such auction take place within 4 weeks from the date of placing the property for sale by public auction or as soon as practicable thereafter, and that there be further auctions every 4 weeks until the Suburb C property is sold, with the reserve price to decrease by 5 per cent at each subsequent auction.
3.2 That the parties shall jointly pay all auction expenses as requested by the selling agent as and when they fall due.
3.3 That the parties shall do all such acts and things as may be necessary or recommended by the selling agent to properly present the Suburb C property for sale and to make it available for inspection by prospective purchasers.
3.4 That either party shall be at liberty to bid for the purchase of the Suburb C property at auction.
3.5 That the parties shall attend the auction and, if necessary, negotiate with the highest bidder at auction if the reserve price is not reached.
3.6 That the proceeds of sale shall be distributed in the order and priority as set out in Order 2.
4. For the purpose of the sale of the Suburb C property in accordance with Orders 2 and/or 3, the following shall occur:
4.1 The parties shall use their best efforts to reach an agreement as to the listing agent.
4.2 In the event that there is no agreement as to listing agent within 14 days from the date of these Orders, then the Respondent Wife shall within a further 7 days propose the names of three (3) listing agents in writing to the Applicant Husband.
4.3 Within a further 7 days from the Respondent Wife’s compliance with Order 4.2, the Applicant Husband shall nominate a listing agent and notify the Respondent Wife in writing of his nomination.
4.4 The parties shall do all things and sign all documents necessary, including signing the listing agent’s agency agreement, to engage the agreed listing agent and continue to have them engaged pending the sale.
4.5 That the Applicant Husband provide the listing agent with a copy of the keys for the home,
4.6 That the Applicant Husband ensure that the Suburb C property is kept neat and tidy for all inspections and open homes.
4.7 That the Applicant Husband allow access to the listing agent to visit the Suburb C property and allow inspections at all reasonable times at the request of the listing agent.
4.8 That both the Applicant Husband and Respondent Wife be permitted to attend all open homes and auctions if they so choose but are restrained from in any way obstructing or interfering with the process or speaking negatively about the Suburb C property.
4.9 That unless otherwise agreed in writing Caldwell Martin and Cox solicitors be instructed to act on the sale of the Suburb C property.
4.10 That neither party be permitted to change the terms of the Standard Contract for Sale of Land or to the terms of the release of the deposit without both parties’ written consent.
Suburb E property
5. Within 60 days from the date of these Orders, the parties shall do all such acts and things and shall execute all such deeds, documents and instruments as may be necessary to list for sale and sell the property located at D Street, Suburb E (‘Suburb E property’) by private treaty for a sale price and a list price and with an agent to be agreed upon between the parties or, in default of such agreement as to price for more than 14 days, at a price determined to be a fair market price by the listing agent or their nominee whose decision shall be final and binding upon the parties, and the parties shall distribute the proceeds of sale in the following order and priority:
5.1 In discharge of the National Australia Bank loan Account no. ending …08;
5.2 In payment of legal costs, real estate agent’s commission and GST upon the said sale;
5.3 In payment of any fees due for the nomination of a valuer and fixing of a price as hereinbefore provided, in payment of valuation fees, and GST, if any;
5.4 In payment of municipal council and water rates;
5.5 In payment of any arrears in council rates, arrears in water rates, or arrears in strata fees;
5.6 In payment of capital gains tax of $69,256;
5.7 In payment of $236,148 to the Respondent Wife;
5.8 In payment of $135,596 to the Applicant Husband.
6. That in the event that the Suburb E property has not been sold within three (3) months from the date it is listed for sale in accordance with Order 5 above, the parties shall forthwith thereafter do all such acts and things including executing all such deeds, documents and instruments as may be necessary to list for sale and sell the Suburb E property by way of public auction for a reserve price to be agreed upon between the parties or in default of such agreement as to price for more than 14 days at a price determined to be a fair market price by the listing agent whose decision shall be final and binding upon the parties on the following terms:
6.1 That such auction take place within 4 weeks from the date of placing the Suburb E property for sale by public auction or as soon as practicable thereafter, and that there be further auctions every 4 weeks until the Suburb E property is sold, with the reserve price to decrease by 5% at each subsequent auction.
6.2 That the parties shall jointly pay all auction expenses as requested by the selling agent as and when they fall due.
6.3 That the parties shall do all such acts and things as may be necessary or recommended by the selling agent to properly present the Suburb E property for sale and to make it available for inspection by prospective purchasers.
6.4 That either party shall be at liberty to bid for the purchase of the Suburb E property at auction.
6.5 That the parties shall attend the auction and, if necessary, negotiate with the highest bidder at auction if the reserve price is not reached.
6.6 That the proceeds of sale shall be distributed in the order and priority as set out in Order 5.
7. For the purposes of appointing a listing agent to act on the sale of the Suburb E property in accordance with Orders 5 and/or 6, the following shall occur:
7.1 The parties shall use their best efforts to reach an agreement as to the listing agent.
7.2 In the event that there is no agreement as to listing agent within 14 days from the date of these Orders, then the Applicant Husband shall within a further 7 days propose the names of three listing agents in writing to the Respondent Wife.
7.3 Within a further 7 days from the Applicant Husband’s compliance with Order 7.2, the Respondent Wife shall nominate a listing agent and notify the Applicant Husband in writing of his nomination.
7.4 The parties shall do all things and sign all documents necessary, including signing the listing agent’s agency agreement, to engage the agreed listing agent.
7.5 That the Respondent Wife is to request from the tenant that the Suburb E property is kept neat and tidy for all inspections and open homes,
7.6 That the Respondent Wife use her best endeavours to facilitate access to the listing agent to visit the Suburb E property and allow inspections at all reasonable times at the request of the listing agent subject to the availability of the tenant.
7.7 That both the Applicant Husband and Respondent Wife be permitted to attend all open homes and auctions if they so choose but are restrained from in any way obstructing or interfering with the process or speaking negatively about the Suburb E property.
7.8 That unless otherwise agreed in writing Marsdens Law Group be instructed to act on the sale of the Suburb E property.
7.9 That neither party be permitted to change the terms of the Standard Contract for Sale of Land or to the terms of the release of the deposit without both parties’ written consent.
F Company
8. That for the purpose of the transfer of real property referred to in these Orders (“the settlement”):
8.1 Each of the parties will instruct their respective representatives to do all acts and things necessary to give effect to the settlement via F Company.
8.2 In the event either party is self-represented at any time, then that party will nevertheless instruct a subscriber to the electronic conveyancing platform for the purpose of the settlement and will meet their own costs of the practitioner instructed by them.
8.3 The parties will pay their own electronic conveyancing fees.
Belongings and Household Contents
9. That within twenty-one days from the date of these Orders, the Applicant Husband is to do all things to cause the following items to be made available for collection by the Respondent Wife (with the parties to agree on a collection date and time via their solicitors and within seven (7) days of the date hereof) and she shall have exclusive possession of the following:
9.1 The Respondent Wife’s clothes, costumes, shoes and personal effects,
9.2 All annual Santa photographs of the children,
9.3 Fair share distribution of all family photographs available at separation,
9.4 Jewellery gifted to the Respondent Wife and held in the home including in the safe,
9.5 Cookware and kitchenware gifted by the Respondent Wife’s mother and grandmother as follows:
9.5.1 Gravy boat
9.5.2 Jug
9.5.3 Cup and saucers set
9.5.4 Baking tray
9.6 Christmas tree, decorations, paper cut out displays and lights,
9.7 Collection of approximately toy sets,
9.8 Online belongings of the Respondent Wife that had been listed for sale and stored in suitcases and tubs in the shed of the former matrimonial home.
SMSF
10. That Orders 11 to 14 bind the parties as Trustee for the Clement Superannuation Fund (“the SMSF”).
11. That within 28 days the parties will in their capacity as directors of the Corporate Trustee of the SMSF cause the Corporate Trustee to do all things and sign all documents necessary to cause any asset or assets of the SMSF to be converted into cash at bank so as to give effect to these Orders.
12. The parties shall within fourteen (14) days following the sale pursuant to Order 11 above, do all such acts and things and sign all such documents as may be required, including but not limited to the signing of the SMSF trustee minutes, rollover requests and any related documents that may be necessary to transfer each of their respective Member Account balances and Member entitlements out of the SMSF and into another complying superannuation fund established by each of them in their respective names.
13. That for the purpose of giving effect to these Orders, each party will forthwith jointly instruct the SMSF accountant to do all things and prepare all documents necessary to give effect to these Orders and each of the parties shall forthwith provide the accountant with all documents and instructions necessary for them to undertake such task.
14. That simultaneously with compliance with Order 12 above, the parties as directors of the Corporate Trustee of the SMSF shall do all acts and things as may be necessary to wind up and close the SMSF and Corporate Trustee and to cause the said Corporate Trustee and the SMSF to pay all fees and taxes arising from such winding up in equal shares from each of their Member Account balances as and when payment falls due.
Other Orders
15. That within twenty-one (21) days from the date of these Orders, the parties shall do all acts and things and sign all documents necessary as may be required to cause the funds held in their joint names and on their behalf in the National Australia Bank account no. …81 to be transferred equally to each party and thereafter be closed.
16. That pending completion of the sales referred to in Orders 2 to 7 herein the parties shall pay when and as they fall due:
16.1 As to the Applicant Husband, the council rates and water rates in relation to the Suburb C property and the monthly principal and interest instalments in relation to National Australia Bank loan Account no. ending …33;
16.2 As to the Respondent Wife, the council rates and water rates and strata levies excluding arrears as at the date of the making of these Orders in relation to the Suburb E property and the monthly principal and interest instalments in relation to National Australia Bank loan Account no. ending …08.
17. That except as provided for in these Orders, the Applicant Husband shall be declared to be the sole legal and beneficial owner and shall retain all right, title and interest in and to all other assets and liabilities in his name, possession and control including but not limited to the following:
17.1 All cash at bank and moneys invested by the Applicant Husband in his sole name;
17.2 All furniture and personal effects in the Applicant Husband’s possession, including any household possessions contained within the Suburb C property;
17.3 All shares in the company G Pty Ltd;
17.4 Any superannuation entitlements received by the Applicant Husband and invested by him or on his behalf.
18. That except as provided for in these Orders, the Respondent Wife shall be declared to be the sole legal and beneficial owner and shall retain all right, title and interest in and to all other assets and liabilities in her name, possession and control including but not limited to the following:
18.1 All cash at bank and moneys invested by the Respondent Wife in her sole name;
18.2 All furniture and personal effects in the Respondent Wife’s possession, including any household possessions contained within the Suburb E property.
18.3 Any superannuation entitlements received by the Respondent Wife and invested by her or on her behalf.
19. That the Applicant Husband shall solely pay and bear as and when they fall due all repayments of principal, interest or fees and charges in relation to the credit card held in his sole name with the National Australia Bank and the Applicant Husband indemnifies the Respondent Wife against any liability for a contribution to same.
20. That the Applicant Husband shall solely pay and bear as and when they fall due all repayments of principal, interest or fees and charges in relation to the Directors Loan for the Company G Pty Ltd and the Applicant Husband shall and does hereby indemnify the Respondent Wife against any liability for a contribution to same.
21. That the Respondent Wife shall retain and be solely liable for and hereby indemnify and keep indemnified the Applicant Husband with respect to the debt owing to Centrelink and Child Support.
22. That, unless otherwise specified in these Orders, and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders:
22.1 Each party shall be solely entitled to the exclusion of the other in both law and in equity to:
22.1.1 All property (including choses-in-action) in the possession of such party as at the date of these Orders;
22.1.2 All insurance policies in relation to which they are the Life Insured.
22.2 Each party shall 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.
23. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Judicial Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Judicial Registrar being provided with verification of such refusal or failure by way of affidavit.
24. Liberty to apply on seven days’ notice in relation to any issue relating to the facilitation or implementation of the above Orders.
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.
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.