Emerson & Emerson

[2008] FamCA 578

FAMILY COURT OF AUSTRALIA

EMERSON & EMERSON [2008] FamCA 578

FAMILY LAW – PROPERTY - S79(2) Final orders – Just and equitable

Family Law Act 1975 (Cth)

APPLICANT: MS EMERSON

RESPONDENT: MR EMERSON

FILE NUMBER: MLC 6745 of 2007

DATE DELIVERED: 17 JULY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 17 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR DREVER

SOLICITOR FOR THE APPLICANT: HARWOOD ANDREWS

COUNSEL FOR THE RESPONDENT: MS THOMAS

SOLICITOR FOR THE RESPONDENT: CHRISTINE THOMAS

ORDERS

1. THAT the husband pay to the wife the sum of $20,000 ('the payment') to be paid upon the happening of the first of the following events:

   a)upon the husband electing to make the payment to the wife;

   b)upon the sale by the husband and/or the estate of the husband upon the death of the husband of the real property situate and known as B property being all that piece of land described in Certificate of Title Volume … Folio … (“the real property”).

2. THAT interest accrue on the payment or any part thereof which remains outstanding after the date of these Orders and comprise part of the payment due to the wife and such interest:

   a)be calculated at the rate of 10% per centum per annum adjusted annually from the date; and

   b)is due and payable if and when the payment is made prior to the conclusion of the sale or default sale provisions contained herein.

3. THAT for the purpose of securing the payment to the wife as prescribed by paragraph 1 herein the husband provide to the wife a registerable first mortgage to be secured on the real property for the payment of the amount of $20,000 and interest as prescribed by these Orders.

4. THAT subject to and contemporaneously with the provision of the first mortgage (“the first mortgage”) to the wife as prescribed in paragraph 3 herein:

   a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right title and interest in the real property; and

   b)the husband indemnify the wife against all payments and liability for and discharge all rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind save and except for the period of twelve (12) months from the date of these Orders the wife make payment to the husband an amount equal to 10% of the land rates and house insurance expenses of the real property.

   c)the husband at all times prior to the payment to the wife keep the real property and the house and outbuildings thereon insured for a sum of no less than $150,000.00 and make payment of all rates, taxes and outgoings of whatsoever nature and kind and provide to the wife each year a copy of all receipts as paid in respect of house insurance, rates and taxes until the wife is paid in full.

5. THAT if the husband ceases to occupy the real property or if the real property is sold by the husband pursuant to paragraph 1(b) herein it be sold altogether out of Court and the parties forthwith do all acts and things and sign all necessary documents to effect the sale of the real property and by way of consequential arrangements for the purposes of effecting the sale:

   a)the listing price for the real property be as agreed between the parties and if there is no agreement the listing price be as determined by a qualified valuer nominated by the President of the Real Estate Institute of Victoria ('the qualified valuer').

   b)the real property be listed for sale with such other real estate agent as agreed between the parties and in default of agreement with such agent as nominated by the President of the Real Estate Institute of Victoria ('the real estate agent').

   c)the husband co-operate with the real estate agent in relation to the sale, including making the key available, allowing inspection of the real property at times requested by the real estate agent, and ensuring that the said property is in a neat and clean condition at the time of inspection by prospective purchasers.

   d)the husband's solicitors be retained by the husband for the purpose of the sale and be remunerated on their standard conveyancing rates applicable to such transactions.

6. THAT upon completion of the sale the proceeds shall be applied as follows:

   a)first, to pay all costs, commissions and expenses of the sale;

   b)secondly, to discharge the first mortgage and all interest owing there under and any other encumbrances affecting the real property;

   c)thirdly, to pay any council and water rates and other charges (if any) outstanding in respect of the real property;

   d)finally, the balance to the husband and/or the estate of the husband.

Default Sale

1. THAT in the event that the:

   a)husband fails, refuses or neglects or does such act or things or omissions so as to not provide the wife with the first mortgage as specified in paragraph 3 herein; or

   b)is in default of the provisions of paragraph 5.2 and 5.3 herein.

   then the husband sign all documents and do all things necessary to transfer the real property to the wife to be held on trust for sale and the real property be forthwith sold altogether out of Court ('the default sale') and by way of consequential arrangements for the purpose of effecting the default sale:

   i)the listing price for the real property shall be as agreed between the parties and if there is no agreement the listing price be as determined by a qualified valuer nominated by the President of the Real Estate Institute of Victoria ('the qualified valuer').

   ii)the real property be listed for sale with such real estate agent as selected by the wife.

   iii)both parties co-operate in any way with the real estate agent in relation to the default sale, including making the key available, allowing inspection of the real property at times requested by the real estate agent, and ensuring that the said property is in a neat and clean condition at the time of inspection by prospective purchasers.

   iv)the wife's solicitors be jointly retained by the parties for the purpose of any default sale and be remunerated on their standard conveyancing rates applicable to such transactions.

2. THAT upon completion of the default sale the proceeds be applied as follows:

   a)first, to pay all costs, commissions and expenses of the sale;

   b)secondly, to discharge the first mortgage and all interest owing there under;

   c)thirdly, to pay any council and water rates and other charges (if any) outstanding in respect of the real property;

   d)fourthly, to pay to the wife any payments made by the wife in default of payment by the husband of house insurance, rates and taxes in respect to the real property and the house and outbuildings thereon.

   e)finally, the balance then remaining to the husband.

3. THAT pending the payment or the completion of the sale:

   a)the husband have the sole right to occupy the real property;

   b)the husband pay all instalments for all rates and taxes and like apportionable outgoings of the real property as they fall due;

   c)the parties hold their respective interests in the real property upon trust pursuant to these orders; and

   d)the husband be restrained by himself, his servants and agents from doing any act or thing or dealing with the real property that will in any manner whatsoever alienate or restrict the interests of the wife as created by the terms of these Orders in the real property.

Registrar Of Court To Sign

1. THAT in the event that the husband refuses or neglects to comply with the provisions of this order the Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the husband and to do all acts and things necessary to give validity and operation to the said order.

2. THAT each party retain their sole and exclusive right to their respective superannuation entitlements/long service leave entitlements and other employment based entitlements.

3. THAT all insurance policies become the sole property of the owner named therein.

4. THAT each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

5. THAT subject to compliance by the husband with paragraph 3 herein any joint tenancy between the parties is hereby severed.

6. THAT unless otherwise specifically ordered herein and save for the purposes of enforcing any money due and payable by either party pursuant to these orders each party shall be solely entitled to the possession absolutely of all personal items of property currently in their respective possession as at the date of these orders (including choses-in-action) save that the husband shall provide to the wife at the request of the wife or her nominee all of her items of personal clothing.

7. THAT these orders are binding upon the parties and their heirs, executors, administrators, assigns and legal personal representatives and are to continue in full force and effect notwithstanding the death of either party.

IT IS DIRECTED:

1. THAT the application filed 14 June 2008 by the wife and the husband’s response filed 4/9/2007 be removed from the docket of Honourable Justice Young and from the list of cases awaiting hearing.

2. THAT the extempore reasons for judgement be transcribed and placed on the Court file for the inspection of the parties as required.

THE COURT NOTES:

A.THAT pursuant to Section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Emerson & Emerson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6745 of 2007

MS EMERSON

Applicant

And

MR EMERSON

Respondent

REASONS FOR JUDGMENT

1. In the matter of Emerson, the proceedings are before the court primarily for case management purposes but also in the expectation that the parties would have an opportunity with the assistance of their legal advisers to settle on a final basis all property and the financial matters.

2. Ms Thomas appears for the husband, Mr Drever appears for the wife.  The parties have been at court all of this afternoon and have now settled finally all section 79 proceedings.

3. The overview is that the husband will take a transfer of the jointly owned home to his sole name, subject to him providing a mortgage of $20,000 and payment of that sum to the wife upon the first of the following events his electing to pay, or ceasing to occupy the home, or his death.

4. It is agreed by both parties that interest will be paid at a rate of 10 per cent per annum adjusted annually on that first mortgage sum of $20,000.  I am satisfied that the husband, who is in court and listening to these reasons, well understands that the base payment is $20,000 and that is adjusted upwards by interest.  That of course will increase over the years. 

5. The wife has a solid work history and a current superannuation entitlement of approximately $215,000.  She is 62 years of age.  It is not envisaged that there be any superannuation split but that she retain the whole of her entitlement, together with any long service leave or other work benefits.

6. The home is likewise valued at about $215,000 and so, subject to the first mortgage adjustment of $20,000 and interest thereon, it is close to an equal division of the assets, at least at the date of the orders, subject to that clearly understood first mortgage requirement. 

7. Whilst on the face of the orders, they may be seen to be somewhat convoluted in their various default provisions, effectively they are there to provide both options and are drawn by the solicitors and understood by them in that regard.

8. The parties have been living separately and apart and therefore, save for the wife's clothing or very personal effects, the husband retains all that is left in the home. 

9. I am satisfied that these orders achieve finality, that the parties have a clear and concise understanding of the orders and that they have had the benefit of legal advice and settled these matters today in full knowledge of their effect.

10. For the purposes of section 79(2) of the Act, I declare the orders to be just and equitable. Along with that declaration goes the finality of the orders, save for any default or enforcement provisions. I have included an order pursuant to section 106A of the Family Law Act 1975 for the Registrar to sign in the name of either defaulting party but one would hope that is an unnecessary provision.

11. I congratulate the parties on settling the matter with the assistance from their solicitors.  I will pronounce orders by consent in the terms now provided, though they have been significantly amended as a result of discussions which I have had with the practitioners.  Mr Drever will have responsibility for emailing an amended and fully completed and agreed document to my associate forthwith.  That will contain the final form of the orders.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 22 July 2008