DARLEY & DARLEY
[2017] FamCA 347
•26 May 2017
FAMILY COURT OF AUSTRALIA
| DARLEY & DARLEY | [2017] FamCA 347 |
| FAMILY LAW – PROPERTY SETTLEMENT – Interim –Where the matter has been listed for final property adjustment proceedings – Where it is ordered that the parties sell the former matrimonial home – Where the parties have four months to sell the former matrimonial home by private treaty prior to putting the property to auction. FAMILY LAW – PROPERTY SETTLEMENT – Interim – Personal property – Where the wife is restrained from taking any item of personal property from the former matrimonial home – Where the husband is entitled to remove contents of the shed of the former matrimonial home – Where the husband is to provide to the wife original DVD recordings. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| APPLICANT: | Mr Darley |
| RESPONDENT: | Ms Darley |
| FILE NUMBER: | BRC | 2317 | of | 2013 |
| DATE DELIVERED: | 26 May 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 22 May 2017 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
IT IS ORDERED, UNTIL FURTHER ORDER
Sale of Real Property
That the Applicant Husband (“the Husband”) and the Respondent Wife (“the Wife”) shall do all such acts and things as may be necessary to sell their former matrimonial home 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 … (hereinafter referred to as “the C Town property”) and that sale shall be conducted as follows:
(i)The Wife forthwith inform the current tenants in writing that their current lease will not be renewed at its expiration as the C Town property is being sold and that they will thereafter be on a month to month tenancy, terminable on a month’s written notice by the tenants or the owners at any time;
(ii)The C Town property be forthwith listed for sale with D Real Estate of C Town and Mr F of C Town Real Estate, with each of the Husband and the Wife signing all such documents as might be necessary to give each of those real estate agencies listing rights;
(iii)The C Town property be listed for sale at $589,000, or as might otherwise be agreed in writing between the Husband and the Wife after consultation with the listing agents, with the husband and wife to accept any offer to purchase the property for a figure in excess of $550,000 or any other amount as may be agreed between them;
(iv)All other terms of the contract of sale shall be as agreed between the Husband and Wife or, failing agreement, as ordered by the Court;
(v)Should a contract for sale of the C Town property not be obtained within four calendar months of the date of these orders then the C Town property shall be sold at a public auction that takes place before the end of October, 2017, with the auctioneer to be chosen by agreement between the Husband or the Wife or, in default of agreement, to be the person nominated by the Chairman of the Real Estate Institute of Queensland;
(vi)The reserve price at the auction shall be such amount as is agreed between the Husband and the Wife after consultation with the auctioneer or $540,000, whichever is the lesser figure;
(vii)In the event that the C Town property is not sold by auction or private negotiation at the auction or within fourteen (14) days of the said auction date, unless otherwise agreed between the Husband and the Wife or ordered by this Court, a second auction shall take place within a further twenty-eight (28) days of the expiry of the said fourteen (14) day period with the reserve price to be as agreed between the parties or, in default of agreement, as determined by the auctioneer;
(viii)The Husband and the Wife shall ensure that vacant possession of the C Town property is given to the purchasers on the date of settlement of the sale;
(ix)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;
(x)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 and the said Bank;
(xi)Subject to the filing within fourteen (14) days of these Orders of an affidavit in which he consents so to act, Mr F, solicitor of Brisbane, shall act for the Husband and the Wife as solicitor on the conveyance of the said property, and in default of his consent it shall be a solicitor nominated by the CEO of the Queensland Law Society;
(xii)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, solicitor, in acting for the Husband and Wife on the conveyance;
(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 earlier Order of this Court;
(xiii)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 the Husband and the Wife or, in default of agreement, as might be further ordered by this Court.
Personal Property
That the Wife is restrained and an injunction hereby restrains her from taking any item of personal property from the C Town property not already removed by her prior to the date of these Orders.
That prior to the settlement of the sale of the C Town property, the Husband shall attend at the C Town property by arrangement with the tenants, if they are still in occupation, but at his convenience if the tenants have already given up vacant possession to the Husband and the Wife, and he shall be entitled to remove from the 12m x 9m shed at the rear of the property all of the contents of that shed at his sole expense in the first instance, with an employee or agent of G Valuers to be present with the husband when he attends at the property to remove those contents to document and record all of the items of personal property removed by the Husband and to check it off against the list of those items of personal property previously provided to the Husband and the Wife in the valuation already done by G Valuers in these proceedings, with the Husband to pay the costs of that employee or agent’s attendance in the first instance, with the ultimate decision as to who bears those costs to be a matter for the Trial Judge in this matter.
That the Husband shall be responsible for retaining possession of or storing at his expense all of the items of personal property that he removes from the C Town property pursuant to Order 3 hereof pending the determination of the final disposition of that personal property by the Trial Judge.
That in addition to whatever evidence the Husband shall file as directed in the property adjustment proceedings currently listed for trial before Hogan J in October 2017, the Husband shall also file and serve an affidavit in which he includes a schedule of the items of personal property that he removes from the C Town property, the value attributed by G Valuers to that item in their original valuation, whether the item was included in that original valuation at all, whether he wants to retain the item of property as his sole property at the G Valuers original valuation and, if not, what he proposes happens with the item. That schedule shall also include any item that was included on the list of personal property originally valued by G Valuers that was not in the shed when he attended to remove the items as well as the value originally ascribed to it.
That the Husband shall cause an affidavit of the employee or agent of G Valuers who attends with him when he attends to remove the items of personal property from the shed at the C Town property to be filed in these proceedings, in which the employee or agent confirms his or her observations of what the Husband removes from the property and how that relates to the list of personal property originally valued by G Valuers in this matter.
That in addition to whatever evidence the Wife shall file as directed in the property adjustment proceedings currently listed for trial before Hogan J in October 2017, the Wife shall also file and serve an affidavit in which she includes a list of the items of personal property that she wishes to retain as her sole property by reference to the list of items originally valued by G Valuers and a list of those items that she does not wish to retain as her sole property and, if not, what she proposes happens with the item.
That the Husband shall provide to at least one of the real estate agents with whom the C Town property is listed for sale all keys, gate openers and shed openers relating to the C Town property as are in his possession.
That after the Husband has removed the items of personal property from the shed at the C Town property he shall cause delivery to the Wife of the original DVD recording of the christening celebration for the child, X, the original DVD recording of the wedding celebration of the Husband and the Wife, and the original Compact Disc storing the photographs of the said christening and the said wedding, such discs to be in an undamaged, working condition. In addition, and at the same time, the Husband shall copy to any computer hard drive provided to him in advance by the Wife, copies of any photos of the children of the parties as he has in his possession.
Disclosure
That in compliance with the duty of disclosure clearly set out in Rule 13.04 and Rule 13.07 of the Family Law Rules 2004, on or before 30 June 2017, each of the Husband and the Wife shall file and serve an affidavit in which they list all documents he or she is required to disclose pursuant to that duty and by 31 August 2017, each of the Husband and the Wife shall provide the other with copies of any such documents as might be requested in writing by the other party prior to 31 July 2017, with the requesting party to pay the reasonable costs of the provision of those copies.
The Execution of any Documents necessary to give effect to these Orders
That the Husband and the Wife shall sign all documents that are necessary to give effect to these Orders and should either of them refuse or neglect to comply with this Order then pursuant to s 106A of the Family Law Act1975, the Senior Registrar of the Brisbane Registry of this Court is appointed to sign any such document in the name of the Husband or the Wife, whichever one of them it is who has refused or neglected to comply with the Order with the Senior Registrar being entitled to act on this Order on the filing and service of an affidavit by the party who seeks to have the Senior Registrar sign a document on behalf of the defaulting party.
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
REASONS FOR JUDGMENT
Before me for determination on Monday 22 May 2017, were competing applications for interim Orders in property adjustment proceedings between these two parties.
The matter has been listed for trial before Hogan J in October, this year. In the meantime, the parties agree that their former matrimonial home situated in C Town, south-west of Brisbane, be sold. They simply cannot agree on the terms and conditions of the sale of that property. That is why it was listed before me for determination.
It can be seen that the matter has been before the Courts since 2013. It was commenced in the Federal Circuit Court. It proceeded in that Court to a point where final parenting orders were made by consent and certain interim orders dealing with the parties’ personal property were made. The wife appealed the orders, including the Orders she had consented to, to the Full Court. Her appeal was dismissed.
I sat on the Full Court that dismissed her appeal. At the commencement of the hearing of these applications I drew this to the attention of both parties, stated that I did not see that as necessarily a reason for me to recuse myself from hearing these applications and invited either of them to make submissions in support of any application for me to recuse myself if they considered it appropriate. After having some time to consider that, both parties informed the Court that they had no objection to me hearing the matter that day.
Sale of the Property
Each party proposed various orders for the sale of the property. The wife did not want the property to be listed on a sole-agency basis with only one agent. The husband did and he did not consider it a good idea to list it with multiple agents. From the bench, I brokered a compromise between them, getting them, seemingly, to accept listing with two agents and nominating the two that each was suitably comfortable with.
The wife informed the Court that the property was currently rented to tenants pursuant to a lease agreement that she had unilaterally entered into with them. She told the Court that the lease agreement was expected to expire next month, meaning it will go onto a month to month tenancy from that time on. She told the Court that the tenants pay $400 per week for the rent of the property and that $250 of that is used to pay the interest only payments on the liability secured by mortgage over the property. The balance is retained to the use of the wife. She informed the Court that the rates owing on the property are currently in arrears.
The Orders I have determined to make provide for the existing circumstances of the tenancy of the property and for notice to be given to the tenants that the property is being sold and for the rent they pay to continue to be used to meet interest payments on the mortgage liability until they move out. If the sale of the property has not been effected or settled by the time the tenants move out, then the payment of the interest repayments on the loan will be a matter for the parties to agree upon with the bank. It might be that a repayment holiday will be able to be secured pending a quick sale of the property.
The evidence was that the wife considers the property to be worth in the mid to high $500,000 range. The husband did not dispute that or adduce any evidence to the contrary. The wife sought orders that the property be listed for sale at $589,000 and that the parties accept any offer in excess of $550,000. The husband had proposed that it be listed at a price recommended by the agents, but he did not vociferously oppose the wife’s proposal. I determined to include that listing price and sale price in the Orders.
The husband proposed that the property be sold by privately negotiated sale in the first instance, but that it be put to auction after three months if it has not sold within that time. The wife opposed that and did not consider it should be put to auction at all at any time, but rather be left to sell privately.
Bearing in mind that these parties have been in significant dispute for four years, are unrepresented, agree that there is a need for the property to be sold so that their dispute can be finalised with the trial taking place this coming October, I am satisfied that it is appropriate to give them four months to sell the property by private treaty before putting the property to auction in October, before the Christmas-New Year holiday period commences. I intend to make an Order that the property be auctioned by an auctioneer agreed upon by the parties but appointed by the Chairman of the Real Estate Institute of Queensland if they remain in disagreement about that. I will order that the reserve price at the auction be either $540,000, taking into account that the property will not have sold for $550,000 in four months if it is going to auction, or fixed at a lower price if agreed between the parties and the auctioneer.
Should the property not sell at the auction or within fourteen days of the auction then it is to go to a second auction soon thereafter (again to beat the Christmas-New Year holiday period) with the reserve being fixed by agreement between the parties or, in default of agreement, as fixed by the auctioneer, so as to ensure it is sold.
Vacant possession of the property will have to be provided to the purchasers on the date of settlement.
As the parties are unrepresented, an independent firm of solicitors should be appointed to act for both of them on the conveyance of the property when it is sold. Neither of them knew of a firm that could do that, save that the wife referred to some conveyancers she had found by internet research. She did say she now lives in Brisbane and would appreciate a Brisbane firm acting so that she could readily travel to sign any documents necessary to complete the conveyance.
I am aware that the experienced, senior Brisbane family law solicitor, Mr F, has acted as an independent solicitor as trustee for the sale of property appointed by this Court on many occasions in the past. I am quite satisfied that Mr F would be an appropriate solicitor to appoint to act for the parties on the conveyance of the property, if he is willing to accept the appointment. Of course, he will be able to charge the parties a reasonable fee for the service he offers. He will not be trustee for the sale of the property, but could easily be appointed to that position if it becomes necessary in the future should the parties demonstrate an inability to communicate and co-operate sufficiently to get the property sold. The parties must note that if it becomes necessary to appoint Mr F as trustee for the sale in the future, that will cost more and reduce the funds that will be available for division between them at the end of the day.
My Orders will also provide for Mr F to invest the net proceeds of sale of the property in an interest bearing account as trustee for the parties pending further Order of this Court. That will at least see the funds earning interest for the parties that will also be divided between them in the property adjustment proceedings rather than the money earning no interest in a solicitor’s trust account.
The wife did raise the issue of payment for the costs of repairs and maintenance of the property pending its sale. I will not make an Order dealing with that, save to leave it as a matter to be agreed upon by the parties or ordered by the Court. I do note that whilst the property is tenanted, the wife retains $150 per week from the rent after payment of the interest only payments on the mortgage liability. Any necessary repairs could be paid for using that surplus income retained by the wife each week, one would expect.
There was substantial disagreement between the parties about some other matters, too.
The husband indicated that he wanted to go onto the property, access the shed and collect some of his personal possessions. The wife vehemently opposed this, asserting that the husband might damage the property or even burn it down. I was rather surprised at the strength of the wife’s opposition, particularly when she is no longer living at the property. I was conscious of the fact that Judge Howard of the FCC had made some interim orders about the parties’ personal possessions that have already been valued for the proceedings by G Valuers. Those were the Orders unsuccessfully appealed by the wife. It is common ground that neither party has acted in accordance with those interim orders.
The wife made it clear during the hearing that she does not accept the valuation of the single expert (asserting that the items were overvalued), G Valuers, but despite that she does not want the husband to have access to the chattels still stored in the shed.
In contrast, the husband told the Court that he accepts the values and wants to keep many of the chattels and would do so at the value ascribed to them by G Valuers.
Consequently, I determined to restrain the wife from taking any of the chattels from the property, allow the husband access to the property either with the tenants permission or after they have moved out, and to give him the right to take all of the chattels into his possession or storage, so that vacant possession can be given to a purchaser and pending finalisation of the property adjustment proceedings by the trial judge.
In order to meet the concerns of the wife that the husband might take chattels and then say they were not actually in the shed, I will order that the husband take with him, at his expense (in the first instance), an employee or agent of G Valuers who can independently verify what items are taken from the shed by the husband. I will make Orders that provide for affidavit evidence to be filed by the husband for the trial before Hogan J dealing with this issue of the chattels and verifying the items he takes, relating those items to the valuation previously provided by G Valuers and identifying what chattels he wants to keep and what he contends should happen with the remaining items that he does not want to keep. I will also order the wife to file an affidavit for the trial that sets out what items she wants to keep and what she contends should happen to the remaining items.
The husband told the Court that he would provide any keys, gate openers and shed openers that he retains to one of the real estate agents, so I will provide for that in my Orders.
The wife also sought an Order for the delivery to her of certain original videos and compact discs of photographs of their wedding and the christening ceremony of one of their children, as well as other photographs. The husband readily indicated a willingness to comply with this request, so I will make an Order that provides for this, though I will provide for those things to be provided to the wife after the husband has removed the items from the shed at the property, as I was troubled by the thought that many of the items that are thought by the husband to be in the shed might not actually still be in there when he goes there to collect them. Making the Order that he only hands over these videos and photos to the wife when he has collected the items from the shed, may, it is hoped, make it more likely that the chattels will still be in the shed when the husband goes to collect them.
Disclosure was raised by the wife. She sought an order for the husband to disclose certain tax returns. Considering this a perfectly reasonable request, I asked the husband about it. He indicated a willingness to provide disclosure, but unsurprisingly raised the notion of mutual disclosure, informing the Court that he also wanted to see documents from the wife, such as certain bank statements. This position advanced by the husband generated a disproportionately hostile response from the wife who steadfastly maintained objection to the idea of having to disclose documents such as bank statements to the husband.
Having pointed out to the wife that full and frank disclosure is an obligation on all parties in property adjustment proceedings, and being satisfied that it is clearly necessary now in this case to provide expressly for mutual disclosure in the lead up to the trial, I will include in my Orders, an Order for mutual disclosure in accordance with the provisions of the Family Law Rules 2004. The parties will have to file and serve affidavits of documents and then provide any copies requested by the other side, at the expense of the requesting party.
I will also make an Order pursuant to s 106A of the Family Law Act 1975 for a Registrar to sign any documents necessary to give effect to the Orders I make, as the wife asked me to.
I will make the Orders set out at the commencement of these written reasons.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 May 2017.
Associate:
Date: 26 May 2017
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