FAMILY COURT OF AUSTRALIA
| CLOVELLY & CLOVELLY (NO. 2) | [2010] FamCA 263 |
| FAMILY LAW – PROPERTY – Just and equitable |
| Family Law Act 1975 (Cth) ss 75(2), 79(1), 79(4) |
| C & C [2005] FamCA 429 Clovelly & Clovelly [2010] FamCA 43 Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144 Kowaliw & Kowaliw (1981) FLC 91-092 M & M [2006] FamCA 913 Marsden & Winch [2009] FamCAFC 152 NHC & RCH [2004] FamCA 633 Pierce & Pierce (1999) FLC 92-844 Pittman & Pittman [2010] FamCAFC 30 Rosati & Rosati [1998] FamCA 38 Townsend and Townsend (1995) FLC 92-569 West & Green (1993) FLC 92-395 |
| APPLICANT: | Ms Clovelly |
| RESPONDENT: | Mr Clovelly |
| FILE NUMBER: | CAF 655 of 2005 |
| DATE DELIVERED: | 1 April 2010 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 13 – 15 June 2007 29 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Tonkin |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Commission, ACT |
| FOR THE RESPONDENT: | Self-represented litigant |
Orders
IT IS ORDERED THAT:
By way of property settlement the respondent husband Mr Clovelly will pay to the applicant wife Ms Clovelly the sum of $221,898 on or before 4 June 2010 or such other time as the parties may agree (settlement date).
If the husband fails to pay the sum stipulated in Order 1 by the settlement date or at such earlier time as the parties agree, the parties and each of them (but in particular the husband) will:
(a)List the property for sale with a real estate agent agreed upon by the parties, or in default of their being able to agree within 48 hours of the settlement date, with an agent nominated by the President for the time being of the Real Estate Institute of the Australian Capital Territory.
(b)Accept the listing agent’s advice about a listing price but will not, (except by agreement) list the property for sale at less than $495,000.
(c)Accept advice from the listing agent about whether it would be preferable to sell the property by private treaty or by public auction or agree between themselves as to which of those methods would be more appropriate to bring about the sale of the property.
(d)If after the listing of the property, an offer is received to purchase the property for less than the listing price, then the parties will consult with each other about whether they should accept the offer and if possible will agree. If they cannot agree then they will accept the determination of a valuer from T Firm or alternatively someone from another firm nominated by them as to whether the offer received is, in the market circumstances then prevailing, a reasonable market price for the property.
(e)Cooperate with the agent about inspections of the property and keep the property in good order and condition for inspection.
(f)Arrange for vacant possession of the property in accordance with the advice of the agent as to when that would be most beneficial for the sale.
Upon settlement the parties will cause…
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- Case
- [2010] FamCA 263
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of the property settlement, including the valuation and sale of the matrimonial home, the distribution of sale proceeds, and the division of superannuation entitlements. The court also needed to address the ongoing financial responsibilities of the parties concerning the matrimonial home and the mechanism for enforcing the property settlement orders.
Faulks DCJ ordered that the husband pay the wife a sum of $221,898 by a specified date as property settlement. If this payment was not made, the matrimonial home was to be listed for sale, with detailed provisions governing the sale process, including the appointment of a real estate agent, listing price, method of sale, and acceptance of offers. The proceeds of sale were to be applied first to sale costs, then to discharge the mortgage, with the balance divided 65% to the wife and 35% to the husband, after accounting for adjusting amounts. The husband was to continue paying the mortgage until settlement and was restrained from further encumbering the property. The court also ordered that the wife was entitled to a 50% split of the husband's splittable superannuation payments from specific schemes, with provisions for the operative time and liberty for trustees to apply. Finally, the court declared each party the owner of chattels in their control and discharged flagging orders, while reserving liberty to apply regarding the sale terms.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
By way of property settlement the respondent husband Mr Clovelly will pay to the applicant wife Ms Clovelly the sum of $221,898 on or before 4 June 2010 or such other time as the parties may agree (settlement date).
2.
If the husband fails to pay the sum stipulated in Order 1 by the settlement date or at such earlier time as the parties agree, the parties and each of them (but in particular the husband) will:
(a) List the property for sale with a real estate agent agreed upon by the parties, or in default of their being able to agree within 48 hours of the settlement date, with an agent nominated by the President for the time being of the Real Estate Institute of the Australian Capital Territory.
(b) Accept the listing agent’s advice about a listing price but will not, (except by agreement) list the property for sale at less than $495,000.
(c) Accept advice from the listing agent about whether it would be preferable to sell the property by private treaty or by public auction or agree between themselves as to which of those methods would be more appropriate to bring about the sale of the property.
(d) If after the listing of the property, an offer is received to purchase the property for less than the listing price, then the parties will consult with each other about whether they should accept the offer and if possible will agree. If they cannot agree then they will accept the determination of a valuer from T Firm or alternatively someone from another firm nominated by them as to whether the offer received is, in the market circumstances then prevailing, a reasonable market price for the property.
(e) Cooperate with the agent about inspections of the property and keep the property in good order and condition for inspection.
(f) Arrange for vacant possession of the property in accordance with the advice of the agent as to when that would be most beneficial for the sale.
3.
Upon settlement the parties will cause the proceeds of sale to be paid as follows:
(a) To pay all the proper costs relating to the sale including the agent’s commission, lawyers or conveyances fees and any advertising not covered by the agent’s commission but agreed between the parties as properly to be incurred in relation to the sale.
(b) In discharge of the mortgage over the property.
(c) To divide the proceeds thereafter including the balance of the deposit as to 65 per cent to the wife less the adjusting amounts as referred to in my judgment and the balance to the husband.
(d) Until the date of settlement the husband will continue to pay the mortgage in respect of the property.
(e) All trusts in relation to the property are hereby dissolved.
(f) The husband be and is hereby restrained from in any way further encumbering the property or reducing its value pending the sale.
4.
In default of either party carrying out any of the steps that are required in relation to the last mentioned Orders a Registrar of the Family Court is hereby authorised to sign any document which either of the parties fails to execute when it is necessary for him or her to sign such document in connexion with the sale. The Registrar may execute such document on certification from the other party that that party has failed to execute the document for a period of 48 hours after he or she has been requested to do so.
5.
The Registrar may execute any document in the name of the person to whom the direction was given and do all acts and things necessary to give validity and operation to the document.
6.
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 Family Law Act 1975 (Cth) becomes payable to or on behalf of the husband from his interest in the Public Sector Superannuation Scheme and the AXA Australian Superannuation Scheme the wife is entitled to be paid (by the Trustees of the respective schemes) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a 50 percentage split and there is a corresponding reduction in the entitlement of the husband would have had but for these Orders.
7.
The operative time for Order 6 is twenty eight (28) business days after the service of the Final Orders on the Trustees of the Public Sector Superannuation Scheme and the AXA Australian Superannuation Scheme.
8.
Liberty is reserved to the said Trustees 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 Trustees.
9.
The parties note that this Order, and payments made as a result, will be affected by the Superannuation Amendment (Family Law) Act 2004 (Cth) which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 (Cth) which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
10.
The husband’s interest in the M Super Scheme is unaffected by these Orders and will remain unsplit.
11.
Any flagging orders in relation to the abovementioned superannuation schemes are discharged.
12.
Otherwise each of the parties is declared as against the other to be the owner at law or in equity of all of the chattels or possessions in his or her care and control.
13.
There be liberty on the part of either party to apply about the terms of the sale (but not otherwise about the Orders).
14.
All material produced subpoena, in relation to all matters apart from things in relation to the child and proceedings about her, which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
15.
Any material produced subpoena which became an exhibit, in relation to all matters apart from things in relation to the child and proceedings about her, will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
16.
All extant applications are removed other than the application for final orders about the child.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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