FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Emerson & Reynard [2023] FedCFamC2F 1507
File number(s): PAC 4469 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – INTERIM PROPERTY SETTLEMENT – Orders made. Legislation: Family Law Act 1979 (Cth) s 79 Cases cited: Fraser & Fraser [2013] FamCA 843
Strahan & Strahan (Interim property Orders) [2009] FamCAFC 166
Division: Division 2 Family Law Number of paragraphs: 43 Date of hearing: 17 November 2023 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: Albion Solicitors ORDERS
PAC 4469 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EMERSON
Applicant
AND: MR REYNARD
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
23 NOVEMBER 2023
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The wife shall forthwith forward to the husband a Redraw Request Form signed by her requesting the redraw of a sum of $25,000 from B Company Offset Facility Number: …92.
2.Within seven (7) days of receipt of the above Redraw Request Form, the husband shall sign it and return it to the wife.
3.Following the husband’s compliance with Order 2 above, the wife shall be entitled to receive the above sum of $25,000 from B Company Offset Facility Number: …92 by way of interim property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”).
4.The parties shall forthwith do all acts and things and sign all documents as may be necessary to cause the property situated at C Street, Suburb D (“the Property”) to be listed for sale and sold at the best price reasonably obtainable.
5.For the purpose of Order 4 above:
(a)The parties shall instruct Ms E of F Company to have conduct of the sale of the Property on behalf of both parties. In the event that Ms E is unable to do so, the parties shall instruct such lawyer as they agree upon to have the conduct of the sale of the Property on behalf of both parties, or in the absence of agreement being reached within 7 days of these Orders, shall instruct such lawyer as may be appointed by the President of the Law Society of Victoria (“the lawyer”), the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
(b)The wife shall provide to the husband within 14 days a list of three proposed real estate agents for the Property with details of their proposed commission, estimated sales range and method of sale;
(c)Within 7 days of receiving the list of real estate agents from the wife, the husband shall nominate one of the real estate agents from the wife’s list to sell the Property; and
(d)In the event that the Husband fails to nominate a real estate agent within 7 days of receipt of the list, wife shall be at liberty to nominate a…
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- Emerson & Reynard [2023] FedCFamC2F 1507
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- [2023] FedCFamC2F 1507
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CaseChat Overview and Summary
The court had to determine several key legal issues. These included the appropriate method for the sale of the jointly owned property, the division of the sale proceeds, and the allocation of responsibilities for certain financial obligations such as mortgage repayments and tax filings. Additionally, the court needed to address the procedural requirements for enforcing compliance with the orders, including the potential involvement of a Judicial Registrar to execute documents on behalf of a non-compliant party.
In delivering the judgment, Judge Newbrun carefully considered the circumstances of the parties and the relevant legal provisions. The court mandated the sale of the property situated at C Street, Suburb D, specifying the process for selecting a real estate agent and the method of sale, whether by public auction or private treaty. The court also outlined a detailed protocol for the application of the sale proceeds, prioritising the discharge of existing mortgages, followed by payment of various costs and disbursements, and finally, the distribution of the balance to Ms Emerson as an interim property settlement. Furthermore, the court ordered Mr Reynard to handle the discharge of any mortgage or loan secured over the property, and Ms Emerson to complete and lodge income tax returns for the Mr Reynard Family Super Fund for specified financial years. The court also provided for the enforcement of these orders, empowering a Judicial Registrar to execute necessary documents if either party failed to comply for 14 days.
In conclusion, the court issued comprehensive orders that not only addressed the immediate financial needs of the parties but also laid down a clear framework for the future disposition of the marital assets. The final orders included specific directions for the redraw of funds, the sale of the property, and the handling of financial obligations, all designed to facilitate a fair and orderly interim property settlement.
Orders
Orders of the court
PAC 4469 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS EMERSON
Applicant
AND:
MR REYNARD
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
23 NOVEMBER 2023
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. The wife shall forthwith forward to the husband a Redraw Request Form signed by her requesting the redraw of a sum of $25,000 from B Company Offset Facility Number: …92.
2. Within seven (7) days of receipt of the above Redraw Request Form, the husband shall sign it and return it to the wife.
3. Following the husband’s compliance with Order 2 above, the wife shall be entitled to receive the above sum of $25,000 from B Company Offset Facility Number: …92 by way of interim property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”).
4. The parties shall forthwith do all acts and things and sign all documents as may be necessary to cause the property situated at C Street, Suburb D (“the Property”) to be listed for sale and sold at the best price reasonably obtainable.
5. For the purpose of Order 4 above:
(a) The parties shall instruct Ms E of F Company to have conduct of the sale of the Property on behalf of both parties. In the event that Ms E is unable to do so, the parties shall instruct such lawyer as they agree upon to have the conduct of the sale of the Property on behalf of both parties, or in the absence of agreement being reached within 7 days of these Orders, shall instruct such lawyer as may be appointed by the President of the Law Society of Victoria (“the lawyer”), the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due;
(b) The wife shall provide to the husband within 14 days a list of three proposed real estate agents for the Property with details of their proposed commission, estimated sales range and method of sale;
(c) Within 7 days of receiving the list of real estate agents from the wife, the husband shall nominate one of the real estate agents from the wife’s list to sell the Property; and
(d) In the event that the Husband fails to nominate a real estate agent within 7 days of receipt of the list, wife shall be at liberty to nominate a real estate agent from the list to sell the Property.
(e) The parties shall each co-operate with the real estate agent including (without limiting generality of the foregoing):
(i) Making the key available to the real estate agent;
(ii) Allowing inspection of the Property at all reasonable times requested by the real estate agent;
(iii) Doing or saying nothing unreasonable to hinder or prevent a sale of the Property being effected;
(iv) Ensuring that the inside of the Property is neat, tidy and presentable including that the grounds are in a neat and clean condition at the time of inspection by the real estate agent and prospective purchasers; and
(v) Signing all documents requested by the real estate agent in relation to the listing for sale of the Property except any contract or agreement for sale which has not been authorised by Ms E or, if applicable, the lawyer.
(f) The Property is to be sold by either public auction or private treaty as agreed by the parties and in the absence of agreement in a timely manner with such method to be determined by the real estate agent appointed in accordance with Orders 5(b) to 5(d) above.
Public Auction
(g) In the event that the Property is to be listed for sale by public auction, the reserve price is to be as agreed between the parties and failing agreement in a timely manner the reserve price of the Property shall be in accordance with the recommendation of the real estate agent appointed in accordance with Orders 5(b) to 5(d) above;
(h) In the event that the Property is not sold at auction, then the parties may direct the real estate agent to negotiate with the highest bidder or any other interested parties and enter into a contract for sale at the highest obtainable price above the reserve price;
(i) In the event that the Property fails to sell by negotiation pursuant to Order 5(h) above within 72 hours of the first auction, the Property shall be listed for sale by public auction every 3 months with the reserve price to be reduced by the amount of 5% for each three months thereafter until the Property is sold.
Private Treaty
(j) In the event that the Property is to be listed for sale by private treaty, the sale price is to be as agreed between the parties and failing agreement in a timely manner the sale price of the Property shall be in accordance with the recommendation of the real estate agent appointed in accordance with Orders 5(b) to 5(d) above.
(k) In the event that the Property fails to sell by private treaty within 3 months of being listed for sale, then, if the real estate agent recommends that the Property continues to be sold by private treaty, the sale price shall be reduced by the amount of 5% each three months thereafter until the Property is sold. Otherwise, if the real estate agent recommends that the Property be listed for sale by public auction, it shall be listed for sale by public auction on the same terms as set out in Orders 5 (g), (h) and (i).
Proceeds of Sale
(l) On completion of the sale of the Property, the proceeds of sale shall be applied in the following manner and priority:
(i) the discharge of any mortgage or loan secured over the Property;
(ii) to pay all real estate agents’ commission and expenses associated with the sale of the Property;
(iii) to pay all conveyancer or legal costs and disbursements relating to the sale of the Property;
(iv) in payment of any other outgoings due in respect of the Property;
(v) the balance to be paid to the wife by way of interim property settlement under s 79 of the Act.
(m) Pending the discharge of any mortgage or loan secured over the Property, the wife shall pay, as and when they fall due, the mortgage or loan repayments, and council and water rates, in respect to the Property.
6. In order to satisfy Order 5(l)(i) above, the husband shall do all things necessary and sign all documents, including any Discharge Authority Form, required to discharge any mortgage or loan secured over the Property.
Mr Reynard Family Super Fund
7. Without admissions, the wife is to forthwith do all acts and things and sign all documents, including but not limited to financial statements and income tax returns, to facilitate, for the financial years ending 30 June 2021 and 30 June 2022, the completion and lodgment of income tax returns for the Mr Reynard Family Super Fund, in her capacity as former trustee of such Fund.
Section 106A
8. In the event that any party fails to sign any document or instrument or do any acts required or contemplated by these Orders to be done, with such failure continuing for a period of 14 days, then a Judicial Registrar of the Federal Circuit and Family Court of Australia in pursuance of the powers conferred upon him or her under Section 106A of the Act, as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.
AND THE COURT NOTES THAT:
A. The wife resigned as trustee of the Mr Reynard Super Fund in early 2023.
B. This matter is listed for Compliance and Readiness Hearing on 4 December 2023 at 2.15 pm before Judge Dunkley.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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