Darley and Darley (No 5) - [2017] FamCA 1182

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 5)

[2017] FamCA 1182

FAMILY LAW – CONTRAVENTION – Where the Application for Contravention is dismissed – Where an oral application was made for interim property orders – Where orders for a Trustee for Sale to be appointed for the sale of the former matrimonial home is made

Family Law Act 1975 (Cth)

APPLICANT:

Mr Darley

RESPONDENT:

Ms Darley

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

25 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

25 July 2017

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

That the Application for Contravention filed on 7 July 2017 be dismissed.
That paragraph 1 of the Orders made 26 May 2017 be discharged.
That Mr F, solicitor of Brisbane, be appointed as Trustee for Sale of the real property situated at B Street, C Town in the State of Queensland, being the whole of the property described as Lot … on SO … bearing Title Reference … (“the C Town property”).
That the wife shall forthwith provide Mr F and the husband with a copy of the written tenancy agreement she asserts that she unilaterally entered into with the tenants and Mr F shall confirm with those tenants that the C Town property is to be sold and that they will be given a month’s written notice that their tenancy of the property will end prior to the settlement of the sale of the property.
That Mr F, if he considers it appropriate, shall honour any existing contractual arrangements with real estate agents entered into by the parties pursuant to the orders of 26 May 2017. Otherwise, the process of the sale is at his discretion as the Trustee for Sale.
That pending the sale of the C Town property or earlier Order of this Court, whilst ever the C Town property remains tenanted, the wife shall ensure that the interest only repayments payable to the mortgagee, the Westpac Banking Corporation, in respect of the liability secured by mortgage registered over the C Town property are paid to that bank as and when they fall due and are payable.
That should the C Town property become untenanted prior to settlement of the sale, repayment of any money to the Westpac Banking Corporation in respect of the liability secured by mortgage registered over the C Town property as it falls due and owing, shall be a matter for negotiation and agreement between the husband, the wife, the Trustee for Sale (Mr F) and the said Bank.
That upon completion of the sale of the C Town property, the proceeds of sale shall be applied as follows:
(a)In the payment of all costs, commissions and expenses of the sale of the C Town property, including the reasonable professional costs and outlays of Mr F in acting as Trustee for Sale of the property and conveyancing costs;
(b)In the discharge of the mortgage encumbering the C Town property;
(c)To be invested by Mr F on trust for the husband and the wife in an interest bearing account pending finalisation of the current property adjustment proceedings between the husband and the wife or other Order of this Court.
That pending settlement of the sale of the C Town property, the payment of the costs of any maintenance, repairs or other work undertaken to better present the C Town property for sale shall be as agreed in writing between Mr F and the husband and the wife or, in default of agreement, as might be further ordered by this Court.
That the wife shall forthwith provide Mr F with the names and telephone contact details of the tenants of the C Town property.
That Mr F shall forthwith inform the tenants of the C Town property of the provisions of paragraphs 2-8 of the Orders of this Court made 26 May 2017, what they mean, and he shall be the conduit of communication between the husband and the tenants in respect of the husband’s compliance with those Orders.
That Mr F shall inform the tenants that they may remove any of their own personal possessions from the shed on the C Town property prior to any entry into that shed by the husband and the employee of G Valuers, pursuant to paragraph 2-8 of the Orders of this Court made 26 May 2017, and the tenants shall not remove any of the possessions from the shed of the husband or the wife.
That Mr F shall inform the tenants that it is expected that the husband shall have access to the shed on the C Town property to remove the chattels from the shed by the 21 August 2017, if not before.
That if there is a lock/s on the shed that the tenants and/or the wife has a key/s to, then the key/s to that lock/s must be provided to Mr F to be made available to the husband so that he and the employee of G Valuers may access the shed.
That Mr F shall inform the tenants that if they do not agree within fourteen (14) days of the date of this Order, to give the husband access to the shed prior to 21 August 2017, that Mr F is authorised by the Order to give them one month’s notice of the termination of their month-to-month tenancy agreement. If the tenants do not agree within 14 days of the date of this Order to give access to the shed by 21 August 2017, then Mr F shall give notice as Trustee for Sale of the C Town property to the tenants to vacate the property after one month.
That either the husband and/or the wife may make an offer to the Trustee for Sale to purchase the said property. The Trustee for Sale is not bound to accept such an offer unless he considers it appropriate to the interests of both parties.
That if the property is not sold by Mr F by private treaty, and is presented at public auction, then either the husband and/or the wife shall have the right to bid at the auction. If the husband or wife is ultimately the successful bidder at the auction, then he or she shall not be required to provide a deposit on the contract.
That the wife shall forthwith provide to Mr F evidence of the current comprehensive insurance policy, proving insurance coverage of the C Town property. The wife shall ensure that the premium on the policy is paid as and when it falls due and is payable whilst ever the tenants remain occupying the property. Should the tenants move out of the property prior to the settlement of the sale of the property then any insurance premium payable between the date they move out and the date of settlement shall be shared equally between the parties.

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 Darley & Darley 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 BRISBANE

FILE NUMBER: BRC 2317 of 2013

Mr Darley

Applicant

And

Ms Darley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 22 May 2017 I heard competing Applications in a Case for interim orders in property adjustment proceedings currently being litigated in this Court between the husband, Mr Darley, and the wife, Ms Darley. These two parties have demonstrated incapacity to agree on most things and at this stage they do not even agree on whether they are lawfully married and they certainly cannot tell me that any lawful marriage has ever been dissolved. Nevertheless, I consider it appropriate in the proceedings to refer to them as the husband and the wife.
On 22 May I heard competing applications in respect of the sale of their former matrimonial home, a real property situated at B Street, C Town. I heard applications in respect of personal property of the parties. I heard applications in respect of disclosure, and I heard applications in respect of execution of documents. I reserved my decision on the day and handed down my judgment, including reasons for the Orders that I made, on 26 May 2017.
Those Orders included an extensive order in the form of paragraph 1 but with many sub-paragraphs providing for the sale by the parties of their home. They had at least agreed that the property should be sold even though the property adjustment proceedings have not been finalised. As my reasons would reveal, and as I clearly remember, they could agree on very little in respect of the terms and conditions and process by which their property is to be sold, so I made extensive orders in that regard, including an order that provided for a Brisbane solicitor to be appointed to act on the conveyance of the property when it sells. That solicitor is well known to the Court, particularly in his role not only as a family lawyer appearing in adversarial proceedings in the Court but also as a solicitor who acts as Trustee for parties in respect of the sale of properties and businesses, which he has been doing over many years.
I also made extensive orders that provided for the husband to gain access to the property at C Town before the sale of it settles so that he may remove all of the items of personal property that belong to him and the wife that are still situated or located or stored in the shed on the property about which there is much dispute. My orders provided an orderly process by which he was to access that shed in the company of an officer of a firm called G Valuers who have been appointed in the past in this case as a single expert to provide a valuation of chattels and whose valuation evidence is part of the record.
I also made orders in respect of some other personal property that the husband was to provide to the wife, orders for disclosure and an order providing for documents to be signed by a registrar of this court if they were not signed by the parties as required or as necessary.
I was reasonably satisfied at that hearing in May that for some reason the wife was determined to try and prevent the husband from having access to the shed to take the things that are stored in the shed into his possession. My orders did not provide for the husband to keep those things as that is ultimately a matter for her Honour Justice Hogan to decide in the final resolution of the property settlement. My orders were made with a view to the husband getting the items from the shed and storing them safely. The property is to be sold and will have to be vacated at some stage by the tenants with vacant possession to be then provided to the purchasers. My orders provided a process of determining what items that were valued by G Valuers in their original valuation still exist and what may become of them depending on which party wants to keep them and whether they would keep them at the valuation determined by the experts in that valuation or on some other basis as determined ultimately by her Honour Justice Hogan.
The matter quickly came back before me, although it is listed before Justice Hogan on 17, 18, 19 & 20 October for trial (and I note the parties are both unrepresented in these proceedings and have been each time they have appeared before me). The matter was listed for hearing before me today on an Application for Contravention that the husband filed on 7 July 2017. His affidavit evidence and what he has told me today under oath was that he, soon after my orders were made in May, attempted to go about accessing the shed and complying with the orders that I had made in respect of chattels situated in that shed.
The husband asserted that he was unable to get access, principally due to non-compliance or contravention of the order by the wife. The wife read and relied upon a lengthy affidavit. It became clear from that affidavit that she filed on 22 July that she had also been seeking to have further Applications in a Case listed for hearing by the Court after my orders of 26 May 2017. Effectively she was seeking orders, as I read the material, varying or changing the orders that I had made in respect of giving the husband access to the shed at the property. When the matter came before me today, neither party wished to cross-examine the other and each relied principally on their written material. I readily determined that I was not satisfied on the balance of probabilities that the wife had contravened as alleged by the husband.
The husband’s position relied heavily on his evidence that he had by chance effectively made contact with the tenants living at the property through circumstances where he had gone to the C Town Police Station to see if he could somehow enlist the support of the Police in respect of being able to gain access to the property and being told by a police officer there that he knew the tenants as he was the neighbour. After that, the police officer apparently made contact with the tenants and the tenants, one at a time, made contact with the husband himself. His evidence both in his sworn affidavit and oral testimony that I had him give today under oath, was that the tenants originally seemed agreeable with him coming to the property in compliance with my orders whilst they still remained in tenancy and before they moved out, a circumstance that my order certainly provided for and envisaged occurring.
The husband’s evidence is that then some two days later, the tenants apparently changed their position and would not give him access to the shed and would not even return any of his communication. At the same time, he put into evidence a copy of a letter/email sent by the wife on 30 May 2017 which made it clear that the wife did not consider that he had a right to access the property whilst the tenants were there and before a contract for the sale of the property was in place. That of course was, as I pointed out this morning, an incorrect interpretation of the orders that I made on 26 May and as incorrect as it was, was nevertheless vehemently and forcibly asserted by the wife in her correspondence.
I am reasonably satisfied that indeed the wife did communicate with the tenants, after the husband had secured their agreement to attend and as a consequence of her communication with the tenants, their agreement and consent to his attendance at the property was withdrawn. Again, that just adds further weight to my satisfaction previously expressed that for some reason the wife clearly does not want the husband to have access to the shed prior to the trial taking place in this matter. When asked about it, the wife effectively confirms that and gives reasons explaining herself which I have no hesitation in saying I do not accept at this point in time.
Principally, the wife alleges a history of violence perpetrated by the husband against her and a fear of him. However, as I pointed out to her on a number of occasions, she is not going to be there at the property when he goes to the shed and his attendance at the shed is provided for in the orders in a way that certainly satisfied me that it is most unlikely that he is going to cause a scene or act in any violent way towards the tenants, particularly now that he knows that a policeman lives next door, and he is going to have an G Valuers officer in his company and those sorts of things.
I have some views as to what it is the real motivation why the wife does not want the husband to go and access the shed prior to the trial and I have expressed some of those in the course of the hearing this morning, however, I cannot say that I am totally convinced or satisfied because of the fact that the matters of evidence that relate thereto are yet to play out, particularly surrounding the husband accessing the shed and determining what is still in there. In any event, it does not much matter what my view on that is because ultimately the matter for determination of the issues surrounding this personal property will be one for her Honour Justice Hogan to determine. I am just most concerned having regard to the need for the Court to do justice and equity for these parties that the parties, particularly the husband, is in a position to be able to put full evidence before her Honour in respect of these personal items of property for her to be able to properly determine the dispute between the parties. That is why I made those orders and that is why I intend to make further orders today.
As I have already indicated, I was not satisfied on the evidence that the husband had established, as the onus is on him to establish, that the wife had actually breached any obligation imposed upon her by my orders of 26 May. The orders certainly envisaged a possibility that the tenants might not agree to him having access to the property as could very well be their right pursuant to the tenancy agreement which I have not seen, but on the other hand, there might very well be a clause in that tenancy agreement that permits an owner of the property to go onto that property with a certain degree of notice. As I say, I cannot say anything more about that in a definitive sense without ever having seen the tenancy agreement which has never been disclosed to the husband, which will cause me today to order it to be disclosed and provided to the husband forthwith.
I dismissed the husband’s Application for Contravention but then I agreed to entertain what might be considered an oral application for further interim orders in the circumstances having regard to all of the evidence that was before me and also bearing in mind that the wife herself was seeking to have many of these interim matters further heard and determined prior to the trial.
The husband certainly did not oppose that course. The wife was not able to make any submissions though when given the opportunity to respond, in support of an argument that this was not the proper course to embark upon in respect to this matter.
I am more than satisfied on the evidence that I have seen and heard in this matter, not just today but also on the previous occasions, that these two parties cannot agree on much at all and that if the sale of the property and the issues surrounding the access by the husband to the chattels are left for them to agree upon between now and the trial, that these things just will not happen. So I determined that I would call Mr F and ask him if he would accept an appointment as trustee for the sale of the property and undertake some other responsibilities that I intend to impose upon him if he was prepared to do so.
I rang Mr F and put all those matters to him and indeed listened to him tell me some additional orders that he would expect to be made if he is to accept the appointment. Assuring him that I would make those, Mr F indicated on the record that he was prepared and willing to accept the appointment as trustee for the sale of the property, particularly when he was assured that there was sufficient equity in the property after the mortgage was paid out and the costs of sale paid for any reasonable costs that he incurs in discharging his duties pursuant to the Court’s orders to be covered and for the parties still to have some left to divide between them in accordance with any orders that Justice Hogan makes.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 July 2017.

Associate:

Date: 26 November 2019