DOBBS & DOBBS
[2019] FamCA 536
•16 July 2019
FAMILY COURT OF AUSTRALIA
| DOBBS & DOBBS | [2019] FamCA 536 |
| FAMIL LAW – PROPERTY – enforcement – where final orders were made 18 months ago – where the parties dispute terms for the conduct of sale of their investment property – where the wife has already engaged a selling agent – no evidence that the appointed selling agent is not appropriate to effect a sale – order that the selling agent be retained – order for the parties to communicate in relation to the sale. |
| Family Law Act 1975 (Cth) s 106A |
| APPLICANT: | Mr Dobbs |
| RESPONDENT: | Ms Dobbs |
| FILE NUMBER: | MLC | 8793 | of | 2015 |
| DATE DELIVERED: | 16 July 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 16 July 2019 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
The wife have leave to withdraw her contravention application filed 5 April 2019.
That in order to give effect to order 4 of the orders dated 15 February 2018 (“the Final Orders”), regarding the sale of the property at D Street, Suburb L (“D Street”);
(a)The selling agents be Mr H and Mr J of K Real Estate, Suburb L (“the selling agents”).
(b)The sale be by public auction to be conducted no later than …2019.
(c)The reserve price to be as agreed between the parties such agreement to be in writing and confirmed no later than 14 days prior to the auction date and failing agreement to be nominated by the selling agents.
(d)Within 14 days the husband and the wife do all such acts and things as may be required to appoint a conveyancing solicitor to conduct the sale and in the event that there is no agreement such solicitor be as nominated by the President of the Law Institute of Victoria or his nominee.
That from the husband’s entitlements pursuant to order 4 of the Final Orders, the wife be paid the sum of $9000, being costs awarded to her pursuant to the order of the Full Court of the Family Court of Australia dated 10 September 2018, less the costs awarded to the husband pursuant to orders of the Federal Circuit Court of Australia dated 9 September 2016 and the Family Court of Australia dated 24 August 2017.
That there be liberty to apply with respect to the terms and conditions of the sale of D Street.
That for the purposes of giving effect to these orders and order 4 of the Final Orders the wife be permitted to communicate with the husband in writing to:
(a)…, and
(b)M Street, Suburb N.
That for the purposes of giving effect to these orders and order 4 of the Final Orders, the husband be permitted to communicate with the wife in writing to…
That the Application in a Case filed 7 June 2019 and the Response to Application in a Case filed 8 July 2019 be otherwise dismissed.
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 Dobbs & Dobbs 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 MELBOURNE |
FILE NUMBER: MLC 8793 of 2015
| Mr Dobbs |
Applicant
And
| Ms Dobbs |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
Introduction
This matter comes before the Court as a result of several applications filed by the husband and the wife respectively regarding enforcement of final property orders.
The first application to be dealt with is the wife’s Contravention Application filed 5 April 2019. That application relates to alleged breaches of final orders made by Cronin J on 15 February 2018 in relation to property matters (“the Final Orders”). The first order made by his Honour was an order that the husband transfer to the wife his interest in the former matrimonial home situate at B Street, Suburb C.
It seems that issues with respect to the completion of that part of the orders has given rise to much conflict between these parties. Sensibly, after discussion between the parties and the bench, the issues in the wife’s contravention application were able to be resolved. The husband has this day executed a transfer of land, a discharge of mortgage and statement of transferor which will enable the perfection of the transfer of that property to the wife. In those circumstances, the wife has sought leave to withdraw her contravention application listed this day.
There was no opposition to that application and accordingly, I have made an order to that effect.
The next application before the Court was the husband’s Application in a Case filed 7 June 2019. The husband’s application is supported by his affidavit filed the same date. In that application, the husband seeks orders pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”) enabling a registrar to be appointed to sign sale authorities in order to give effect to the sale of the parties’ investment property situate at D Street, Suburb L (“D Street”). That property was ordered to be sold pursuant to order 4 of the Final Orders.
The husband also sought an order that the wife sign a share transfer in relation to an entity to be retained by him pursuant to the Final Orders. It became evident during discussion with the wife that there was no dispute in relation to that aspect of the husband’s application. As a result, she has signed the share transfer document and there are no longer any issues between the parties with respect to that aspect of the application.
The wife relies upon a Response to Application in a Case filed 8 July 2019. Her response is supported by her affidavit filed the same date. That response sought to raise issues with respect to the husband’s non-compliance with the Final Orders. She sought orders with respect to withdrawals of caveat and other matters which were ultimately resolved between the parties during the course of the hearing. The wife also seeks a dismissal of the husband’s Application in a Case.
Background
The husband is Mr Dobbs. He is aged 49 years. He is a legal practitioner engaged in private practice. He represents himself at Court this day.
The wife is Ms Dobbs. She is aged 46 years. She is employed as an educator. She, too, represents herself before me today.
The parties married in 2007, they separated in 2015 and were divorced in 2016. There is one child of the marriage, X, who is aged 10 years. The parties’ litigation has had a long and sorry history both in this Court and, before that, in the Federal Circuit Court. There have also been family violence intervention order proceedings.
There are pending proceedings in the State Courts relating to alleged breaches by the wife of family violence intervention orders. This year, the parties have had an application before the Court on an almost monthly basis. There have been hearings in April, May, June and July 2019 before a registrar of the Court. Essentially, those applications have related to various issues between the parties regarding enforcement of their respective obligations under the Final Orders. That history does not reflect well on either party.
The Final Orders were made by Cronin J following a contested hearing. His Honour has provided detailed reasons for judgment in relation to the orders made. The orders made by his Honour were the subject of an appeal to the Full Court of the Family Court of Australia. That appeal was dismissed.
It became clear during the course of discussion with the husband that the contentious issue about which a ruling was sought related to order 4 of the Final Orders. In particular, the issue related to the arrangements for the sale of D Street, including the terms and conditions of the sale. Order 4 of the Final Orders provides as follows.
(4)That the wife forthwith place the house at D Street, Suburb L on the market for sale on terms to be agreed and failing agreement, upon order of the court. Upon the settlement of the sale, the proceeds be disbursed as follows:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage to the Commonwealth Bank;
(c)Thirdly, to set aside the sum of $108,000 to cover the capital gains tax liability arising from the sale; and
(d)Fourthly, to substitute the net remaining balance for the figure set out as the net equity anticipated from the sale of D Street in paragraph 42 of the reasons for judgment this day.
Order 5 provides as follows:
That upon the completion of the matters required of the parties in order [4] hereof, the equity in the assets set out in paragraph 42 of the said reasons be divided as to 55% to the wife and 45% to the husband.
It is common ground between the parties that the sale of D Street has not yet been effected. The husband is critical of the wife and the delay in giving effect to order 4 of the Final Orders. It is his complaint that a period of almost 18 months has elapsed since those orders were made, and little progress has been made in terms of effecting a sale of that property. As a consequence, the husband has been deprived of the fruits of the judgment of Cronin J. He has an entitlement to 45 per cent of the parties’ property pool and has an expectation of a payment to him following settlement of the sale of that property.
The wife, in her affidavit responding to those matters, deposes as to the history of her efforts to effect a sale of the property. She deposes that following the Final Orders, in accordance with order 4, she signed an exclusive authority appointing K Real Estate as the selling agent. That authority was signed by her on 5 April 2018, less than two months following the making of the Final Orders. She also deposes at paragraph 9 of her affidavit that a section 32[1] vendor’s statement was prepared at that time. At paragraph 12 of her affidavit, the wife deposes that there have been difficulties in effecting a sale due to the reluctance of the tenants who occupied D Street to vacate.
[1]Sale of Land Act 1962 (Vic)
That has resulted in proceedings at the Victorian Civil and Administrative Tribunal. The tenants ultimately vacated the property in September 2018. Following the tenants vacating that property, it emerged that there was damage to the property, including broken windows and broken gas pipes which required repair and rectification. The wife deposes that those matters have now been attended to, that she has had discussion with her appointed selling agent, and it is intended that the sale will be progressed upon the agent’s return from overseas. The wife has produced email communication this day indicating that it is anticipated that the property will be listed by that agent for auction in 2019.
The husband is dissatisfied with those arrangements. He is distrustful of the wife and is distrustful, therefore, of the agent appointed by her to sell D Street. He also raises concerns as to the failure of the wife to communicate with him regarding terms and conditions of sale, noting that the Final Orders anticipated that there would be agreed terms and conditions.
Discussion
Ultimately, during the course of the hearing before me, what seems to be common ground between the parties is the following:-
· Firstly, that D Street should be auctioned.
· Secondly, that the reserve price for D Street should be as agreed between the parties, and if agreement cannot be reached, that the reserve be fixed by the nominated selling agent.
It also appears to be common ground that both parties are desirous of progressing a sale of the property as soon as practicable. The wife, I note, is also deprived of her entitlements under the Final Orders whilst that property remains unsold.
Other than the concerns expressed by the husband, there is no evidence before me that indicates any conflict or other issue with the wife’s nominated selling agent, K Real Estate. The wife submits that the selling agent is local to D Street and is one that she regards as being appropriate and capable of selling the property. Other than his distrust of the wife, there would appear to be no reason why the selling agent originally engaged by the wife should not have conduct of the sale. I invited the husband to address me as to any impropriety or conduct of the agent nominated that would indicate he is not appropriate or qualified to effect a sale of the property. The husband could not identify any factor.
It seems to me that the husband’s criticism as to delay in the sale is not a fault of the selling agent, but rather of the parties for not actively seeking to list and sell the property at an earlier date. The parties have engaged in much communication via email in relation to other aspects of the Final Orders and, seemingly, neither has focused their attention on completing this aspect of those orders. Indeed, in his affidavit, the husband indicates that he first raised this issue with the wife in May 2019. He complains that she did not respond to that communication. The wife indicates that she forwarded to the husband the selling authority and the vendor’s statement following their completion in April of 2018. The husband says he never received those documents.
At an interim hearing conducted on the papers, I am not in a position to make any determination in relation to the parties’ allegations and criticisms of the other absent a testing of the evidence. Doing the best I can, and noting that it is in the interests of both of the parties that each do everything required to achieve the best possible selling price for the property in a timely fashion, it seems to me that the appropriate course is for K Real Estate to continue to be retained as the selling agent given that they have already been engaged and that they have nominated an auction date as soon as … 2019.
As to the other aspects of the matter, I propose to make an order that the sale of D Street be conducted by way of public auction no later than …2019. That gives a deadline for the completion of an auction. Ideally it will progress on the date nominated by the agents from K Real Estate in their email to the wife dated 16 July 2019.
As to the reserve price, as I have noted, the parties agree that the reserve price should be as agreed between them or nominated by the selling agent.
Given the history of the dispute and the conflict between the parties, I propose to make an order that the parties have agreement in writing as to the reserve price no later than 14 days prior to the auction date. This will ensure that if there is issue with respect to that aspect, it is identified well prior to the auction and that there is no disruption to the auction process.
There seems to be no agreement between the parties as to a conveyancing solicitor. What I propose to do is provide an order that they agree as to the appointment of a conveyancing solicitor within 14 days, and if there is no agreement as to the identity of the conveyancing solicitor, that the President of the Law Institute of Victoria nominate a conveyancing solicitor to manage the conduct of the sale.
A further issue was raised by the wife in relation to the husband’s obligation to pay costs awarded to her following the dismissal of his appeal to the Full Court. The order made by the Full Court was that the husband pay the wife’s costs fixed in the sum of $15,000. The husband raised issue with the wife having failed to meet costs orders previously awarded to him. Orders were made on 9 September 2016 that the wife pay to him the sum of $5000. Payment of that sum was stayed until completion of the property proceedings. Further, on 24 August 2017, Senior Registrar FitzGibbon made an order that the wife pay to the husband the sum of $1000. Payment of that sum was also stayed until the conclusion of the property proceedings.
Following discussion, the parties agreed that it was an appropriate course for the wife’s entitlements under the outstanding costs orders, which after deduction of amounts payable by her to the husband total $9000, to be deducted from the husband’s entitlements pursuant to order 4 of the Final Orders. That being the case, I will make an order giving effect to that agreement.
I also propose to make orders providing each party with liberty to apply in the event that there is any further dispute between them as to the terms and conditions of the sale of D Street.
Whilst I have endeavoured to cover the field as to the most likely contentious issues that may emerge between the parties in respect of the sale, if there is some other issue that emerges between them, they will have liberty to apply to the Court. Otherwise, I will dismiss the Application in a Case of the husband filed 7 June 2019 and the Response to Application in a Case filed 8 July 2019.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
A further issue raised between the parties relates to how the wife is to communicate with the husband in writing in order to give effect to the orders for the sale of D Street. The issue between them relates to current family violence intervention orders which prohibit the wife from communicating with the husband via email. She seeks an order, therefore, that enables her to communicate with the husband to ensure that there can be timely communication between them regarding issues such as the appointment of the selling agent, the appointment of a conveyancing solicitor and attempts to achieve agreement as to the reserve price. She seeks an order, therefore, that she be permitted to communicate with the husband via email in relation to such issues.
Seemingly the husband has no difficulty with an order in those terms save that he notes that he has not previously received email communication from the wife. The wife maintains that she has previously communicated with him at his email address regarding such matters. It is a curious position where, seemingly, the husband receives some emails from her, and those emails have been the subject of complaint to Victoria Police regarding breaches of intervention orders, yet has not received other emails, such as the email the wife alleges was sent to him providing him copies with the exclusive sale authority for the property and the vendor’s statement.
Having regard to that history, what I propose to do is make an order entitling the wife to communicate in writing with the husband to both his email address and to his office address. Ultimately it will be a matter for the wife as to which of those means she uses to communicate with the husband. It seems, given the history, whichever way she elects to communicate with him she should ensure that there is evidence of such communication. If there is further dispute between the parties as to whether or not communication has or has not been sent, she is able to evidence what has or has not been done.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 July 2019.
Associate:
Date: 16 July 2019
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