Conlon & Conlon
[2023] FedCFamC1F 730
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Conlon & Conlon [2023] FedCFamC1F 730
File number(s): MLC 9202 of 2023 Judgment of: STRUM J Date of judgment: 16 August 2023 Catchwords: FAMILY LAW – EX PARTE APPLICATION – Where there is a binding financial agreement providing for the sale of a property and division of the net proceeds between the parties – Where the property has sold and is due to settle in two days’ time – Where the husband is a missing person and believed to be deceased – Where the wife seeks pursuant to s 90KA of the Family Law Act 1975 (Cth) that clauses of the financial agreement requiring documents to be signed to enable the sale to be completed be enforced as if they were orders of the Court – Where an order pursuant to s 90KA will then enliven the Court’s power to make an order pursuant to s 106A to enable to husband’s sister to execute all relevant documents in the name of the husband – r 5.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) discussed – Where the wife has provided an undertaking as to damages – Where there is detriment to the wife and the husband or his estate if the sale does not proceed – Orders made ex parte. Legislation: Family Law Act 1975 (Cth) s 90KA, s 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.11(b)
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 16 August 2023 Place: Melbourne (via video link) Solicitor-advocate for the Applicant: Mr Burton Solicitor for the Applicant: Burton Quinn Pty Ltd The Respondent: The respondent did not appear Solicitor for the Respondent: Ms Ong, appearing as Amicus Curiae ORDERS
MLC 9202 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CONLON
Applicant
AND: MR CONLON
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
16 AUGUST 2023
UPON THE UNDERTAKING OF THE APPLICANT WIFE given this day through her solicitor that she will submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as the Court may direct) to any person affected by the operation of the orders being made ex parte this day–
THE COURT ORDERS THAT:
1.Pursuant to s 90KA(c) of the Family Law Act 1975 (Cth), clauses 23(a)(v) and 23(c) of the financial agreement executed by the parties on 4 April 2023 (“financial agreement”) be enforced as if they were orders of the Court.
2.Pursuant to s 106A of the Family Law Act 1975 (Cth), the respondent’s sister, Ms B, be authorised to execute all such documents in the name of the respondent husband and to do all such acts and things necessary to give validity to clauses 23(a)(v) and 23(c) of the financial agreement.
3.All monies payable to the respondent husband pursuant to clause 23(b)(iv), (vii) and (ix) of the financial agreement be paid into the trust account of C Lawyers, to be held by them upon trust for him until further order.
4.All extant applications be adjourned to the Senior Judicial Registrar for Case Management hearing on 5 October 2023 at 9.30am.
AND THE COURT NOTES THAT:
A.The respondent husband’s sister, Ms B, appeared in person via video-link this day.
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 the pseudonym Conlon & Conlon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
This application comes before me by way of an urgent ex parte application filed by the applicant wife, Ms Conlon, on 13 August 2023. She filed an Initiating Application seeking, inter alia, orders pursuant to s 90KA and s 106A of the Family Law Act 1975 (Cth) (“Act”) to enable either her or Ms B, who is the sister of the respondent husband, to execute documents in the name of the husband, Mr Conlon, to give validity and operation to clauses 23(a), 23(b) and 23(c) of a Financial Agreement pursuant to s 90C of the Act dated 4 April 2023 (“Financial Agreement”) and said to be binding.
I have clarified with the solicitor appearing on behalf of the wife that what is, in fact, sought is an order pursuant to s 90KA of the Act that the relevant provisions of the Financial Agreement be enforced as if they were an order of the Court, which would in turn enliven the power to make an order pursuant to s 106A of the Act. I propose to treat the application accordingly.
The parties were married in 2001 and separated in 2021. There is one child of the marriage, X, born in 2007, who lives with the wife.
There are two real properties registered in the name of the parties; one at D Street, Suburb E (“Suburb E”), and the other at F Street, Suburb G (“Suburb G”). Those properties are estimated to total in value $1,157,000 and there are three secured debts totalling in the order of $322,000 such that there is equity in the order of $835,000.
There is no suggestion that the Financial Agreement does not comply with the requirements of ss 90C, 90DA or 90G and of the Act.
I am told by the husband's sister, Ms B, albeit that she is neither a party nor on oath, that to the best of her knowledge the husband has not sought to resile from the agreement. Whilst also hearsay, for the purpose of this interlocutory application, I accept that, to the best of her knowledge, the husband’s intention is or was for the Financial Agreement to be implemented.
The difficulty that arises at present is that the husband is currently a missing person. In her supporting affidavit filed on 13 August 2023, the wife deposes to a belief that the husband died and that she does not believe his body will be found. Therefore, this application has not been served on him. Further, she deposes that he suffered depression and alcoholism in recent years, which contributed to their separation., His sister has confirmed this to have been the case, all the more so in the past six months, when she says that he was unable to function effectively. The wife deposes that she has been informed by two members of the Tasmanian Police Force that CCTV footage shows the husband walking onto a bridge over a river in City J, and that there is no footage of him leaving the bridge. Further, she deposes that he has not contacted his friends nor used his bank accounts since then. I asked the husband's sister whether there has been any update on his possible whereabouts. She told me there has not and that his family also presume him to be dead and are mourning him.
The Financial Agreement was intended to finalise the financial affairs of the husband and the wife consequent upon their separation. The operative parts of the agreement, for present purposes, are to be found in clause 23, which required, at sub-clause (a), the husband and the wife to sell Suburb E. The first four provisions of clause 23(a) have been executed. The two provisions that remain executory are clauses 23(a)(v) and (vi).
Clause 23(a)(v) provides:
That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
Sub-clause 23(a)(vi) provides that C Lawyers, who are the lawyers who drew the Financial Agreement on behalf of the husband, be appointed to have the conduct of the conveyancing of the sale of Suburb E.
Sub-clause 23(b) provides for the proceeds of sale of that property to be applied to payment of the agents’ commissions and advertising expenses, to the discharge of the mortgages over both properties and to the payment of legal costs and outlays relating to the sale. The balance of that sub-clause provides for payments to be made to each of the husband and the wife in sums equivalent to each of their estimated capital gains taxation liability and for specific payments of $8,500 to the wife and $132,500 to the husband. Thereafter, the balance remaining is to be divided as to 70 per cent to the wife and the remainder to the husband
Sub-clause 23(c) provides that, contemporaneously with the distribution of the proceeds of sale of Suburb E and contingent upon the husband receiving the sums of money to which he is entitled, he is to sign all documents as may be required to transfer to the wife all his right, title and interest in Suburb G.
Suburb E has been sold by the parties and the sale is due to settle in two days’ time, on 18 August 2023. The contract of sale is in evidence.
The wife deposes, at paragraphs 8 and 9 of her affidavit, that her solicitors have endeavoured to correspond with the husband’s solicitors, a member of which firm (Ms Ong) has appeared as amicus curiae, in an endeavour to ensure settlement of the sale of the property. The husband's solicitors were aware that he is missing, and feared dead. They solicitors have not heard from the husband recently, and they have been able to obtain instructions to accept service of the wife’s application. They have advised the wife’s solicitors, and it is apparent from Ms Ong's assistance to the Court this day, that they will provide all reasonable assistance in relation to her application and that, like the wife, they (on behalf of the husband) wish to avoid losing the sale of Suburb E.
The wife refers, in the heading to paragraphs 10–13 of her affidavit, to r 5.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”). In my discussions with her solicitor, he has agreed that, in fact, the correct reference is to r 5.11 of the Rules, which provides for ex parte interlocutory orders.
I have considered all of the matters set out in r 5.11(b), which requires that, in an application for an interlocutory order to be made without notice, the applicant must make full and frank disclosure, in an affidavit or orally, of all the relevant facts, including those specified in sub‑paragraphs (i)–(x). To my mind, the most relevant of those matters for present purposes are to be found in sub-paragraphs (v)–(ix).
Sub-paragraph (v) requires the applicant to disclose whether the respondent or the respondent's lawyer has been told of the intention to make the application. Clearly, the husband has not been told because he cannot be found and, indeed, he may no longer be alive. Whilst Ms Ong does not have instructions to accept service, her firm has previously acted on behalf of the husband, at least insofar as they drew the Financial Agreement on his behalf and advised him in relation thereto. Further, her firm has been appointed under the Financial Agreement to handle the conveyancing of the sale. She has seen the wife’s application and affidavit and has appeared before the Court this day as a courtesy.
Sub-paragraph (vi) requires the applicant to disclose whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made. In my view, the orders that are sought to be enforced by the application are machinery provisions to enable the settlement reached by the parties to be implemented. It is difficult to conceive of any prejudice resulting to the husband in circumstances where the effect of ordering that: (a) the relevant provisions of the Financial Agreement be enforced as an order of the Court; and (b) the husband's sister, who is willing and able, be appointed to sign documents on his behalf, could result in any hardship or prejudice to him. There is no suggestion that, since signing the Financial Agreement, the husband has expressed any dissatisfaction with it or contended that it is not binding or that any of the vitiating factors in s 90K and s 90KA of the Act are applicable.
Nevertheless, as I expressed in my exchanges with the solicitor appearing for the wife, these proceedings have been brought ex parte and there is some question regarding the husband's mental capacity, especially (according to his sister) in the past six months. The Financial Agreement was signed within this period of time, and it is not inconceivable, although it may presently be remote, that if the husband is alive, he might seek to set the agreement aside on this ground. In the circumstances, and addressing to my satisfaction the requirement in r 5.11(vii), the wife has indicated through her solicitor that she is prepared to grant an undertaking as to damages, and it will be included in the orders when they are engrossed.
Sub-paragraph (viii) requires the applicant to disclose the nature of the damage or harm that may result if the order is not made. The contract of sale of Suburb E, which the parties executed pursuant to the Financial Agreement, is due to settle in two days’ time and the wife deposes to the detriment to her and, in fact, to the husband or to his estate, if the sale is lost. She refers to the possibility of having to pay compensation to the purchasers, as well as commissions and fees to the selling agent. There is also the mortgage secured over the property that she has been servicing and will be required to continue to service if the sale does not proceed. She also deposes to the fact that the purchasers wish to move into the property immediately upon settlement, and they may seek payment of their rent (and/or hotel bills whilst they find suitable accommodation) if they are not able to assume occupancy of the property at the end of this week.
These matters make obvious and answer the last of the matters in r 5.11(b)(ix), namely, why the order sought ex parte must be urgently made.
In the circumstances, I am satisfied that the wife’s application should proceed on an ex parte basis.
In circumstances where it is unknown whether the husband is alive or dead, I turn to consider the jurisdictional basis of that application. Paragraph (ca)(i) of the definition of “matrimonial cause” in s 4(1) of the Act is “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings … arising out of the marital relationship”. Paragraph (eaa) also defines a matrimonial cause as:
without limiting any of the preceding paragraphs, proceedings with respect to a financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); …
Accordingly, I am satisfied as to jurisdiction on either of these definitions.
Section 90KA(c) of the Act, relevantly provides, inter alia, that in proceedings in relation to a financial agreement, the Court “… may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the Court”.
As I have indicated, the relevant provisions that need to be enforced are clause 23(a)(v), insofar as it requires documents to be executed to complete the sale, and clause 23(c), which requires the husband, upon receipt of the moneys to which he is entitled under the Financial Agreement, to sign all documents to transfer Suburb G to the wife. For the reasons above, I shall order that those provisions be enforced as if they were orders of the Court.
This then enlivens the Court's power to make an order under s 106A(1) of the Act, which provides:
If:
(a)an order under this Act has directed a person to execute a deed or instrument; and
(b)that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;
the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
(Emphasis added)
Again, for the reasons above, I am satisfied that an order under s 106A should be made. The relief sought by the wife under s 106A is pleaded in the alternative, namely, that either she or the husband's sister be appointed to sign the necessary documents in his name. In my view, given that the has proceeded ex parte, it is more appropriate that the husband's sister, rather than the wife, be the person authorised to execute all the documents in his name, to give validity and operation to the provisions of the Financial Agreement which are to be enforced as if they were orders of the Court. The husband’s sister has indicated her consent to being so appointed and I shall order accordingly.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 25 August 2023
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