Gaudry and Gaudry - [2004] FMCAfam 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAUDRY & GAUDRY

[2004] FMCAfam 452

FAMILY LAW – PROPERTY – Application to set aside earlier property order – where respondent demolished a dwelling on the property after property orders were made.

Family Law Act 1975 (Cth), s.79A

Kokl (1981) FLC 91-078

Applicant:

KIM SHARON GAUDRY

Respondent:

ROBERT JOHN GAUDRY

File No:

NCM 3889 of 2001

Delivered on:

7 May 2004

Delivered at:

Coffs Harbour

Hearing date:

4 May 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Stacks – The Law Firm

The Respondent:

Appeared on his own behalf

ORDERS

Order 2 made in proceedings between the parties on 30 August 2002 is set aside.
Upon completion of the sale of the real property situate at and known as 698 Murphy Road, Agnes Water in the State of Queensland, the proceeds of the sale are to be distributed as follows:
(a)first, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of any of the said real property;
(b)second, to discharge the mortgage and any other encumbrances affecting the real property, or nay joint debts of the parties incurred during the marriage;
(c)third, as to the sum of $21, 000.00 to the wife; and
(d)fourth, the balance then remaining is to be divided as to:
(i)sixty per centum (60%) thereof to the wife; and
(ii)forty per centum (40%) thereof to the husband.
The parties are to forward short written submissions to the Court within one month setting out:
(a)whether an order should be made that the Respondent pay the Applicant’s costs of these proceedings: and
(b)if so, the amount of such order.
Transcript of reasons for decision required.
The Application is stood out of the list.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

NCM 3889 of 2001

KIM SHARON GAUDRY

Applicant

And

ROBERT JOHN GAUDRY

Respondent

REASONS FOR JUDGMENT

This is an application by the wife for an order under s.79A of the Family Law Act in respect of property orders which were made by this Court on 30 August 2002.
The orders related to a property in Queensland situated at 698 Murphy Road, Agnes Water. The orders provided that the property should be sold at a price agreed between the parties, should be listed for sale, that the wife should appoint solicitors to act on the sale and provided for consequent details in case the property did not sell right away. There were arrangements for auction and arrangements for the parties to sign all necessary documents.
The situation that now arises is that the wife seeks that these orders be set aside, seeks an order appointing the Registrar of the Court to sign documents in the name of the husband, sought an order in the application requiring the husband to transfer to the wife the husband’s interests in the real property and sought an order that the husband be ordered to pay the wife the sum of $60,000 and the wife indemnify the husband against the mortgage and other encumbrances on the property. There were other machinery orders and there was an injunctive order that the husband refrain from further damaging, destroying or interfering in any way with the real property or any other property of the applicant or in the joint names of the applicant and respondent.
In fairness to the applicant, when the matter came before the Court for hearing on 5 May 2004, Mr Graham of counsel who appeared for the applicant did not seek those orders in those specific terms. He submitted to the Court in effect that the earlier orders should be affirmed, but did point out that there was an adjustment necessary as a result of certain acts said to have been taken by the husband.
The matter which has caused this application to be brought before the Court is the fact that the residence on the property has been demolished. The evidence before me indicates that the demolition of the residence was an act by the husband and the explanation for it is vague to say the least.
The situation that arises as far as the applicant is concerned is that she says that the value of the property has diminished significantly and has produced evidence to show that the property had been listed for sale at a list price of $110,000 prior to the demolition of the residence.
The applicant has also produced evidence by way of a valuation annexed to an affidavit of one Anthony John Bailey, a registered valuer of Bundaberg in Queensland in which he estimates the land value as some $75,000.
The husband who attended Court, but did not file any documents and has not filed any documents ever in these proceedings, has been of the view that the residence was not of any particular value and it was more of a shed or a shack than any sort of residence at all. He affirmed his view that $110,000 was an appropriate valuation and addressed the Court at length in which he alleged an intransigent attitude on behalf of the applicant and accused her of a degree of dishonesty in unspecified ways.
He also indicated that in his view the applicant’s legal advisors had pushed the proceedings on for reasons of their own and that indeed the briefing of a barrister to appear for the applicant on this occasion was unnecessary. He described it as “overkill.”
The fact is that the respondent has not provided the Court with any documentary evidence, no affidavit, no valuations to assist the Court in determining what is appropriate. I would comment that the respondent did not appear when the matter was heard on 20 August 2002.
I am satisfied that the evidence indicates that the residence on the property has been demolished and that it was done at the instigation of the respondent husband. The only evidence as to valuation is that provided by the applicant. It is the applicant who has produced the document appointing the real estate agent showing the property was listed for sale at $110,000. A figure with which the respondent did not disagree.
It is the applicant who has arranged for the property to be valued now that the residence has been demolished showing the value is now to be $75,000. Annexed to the applicant’s affidavit are a number of photographs showing indeed a demolished residence and showing the residence as it was beforehand. It does not appear to me that the residence was the most palatial, but at the same time, it certainly appears to be more than a shack or a shed. At this stage, it is nothing.
The only evidence therefore that I have shows that there has been a diminution in the value of the property of some $35,000. I was referred by Mr Graham of counsel for the applicant to the decision of Gee J Kokl v Kokl (1981) FLC 91-078.
The Court on that occasion in the decision which is persuasive as far as this Court is concerned referred to circumstances which would justify setting aside a property order under the provisions of s 79A of the Family Law Act. As his Honour found in that case, there was no evidence of fraud, duress or suppression of evidence. The question was whether there was any other circumstance which occurred before or at the time of the making of the orders which resulted in the order being obtained contrary to justice and his Honour found in that case that such other circumstances did exist.
His Honour took a view of the circumstances which shows that circumstances that post date the making of the orders, are matters that can be taken into account. The present s.79A, to my mind, allows circumstances since the orders were made to be taken into account. I note that s 79A has been amended in fact on three occasions since the decision in Kokle.
It was pointed out that in paragraph (b) that circumstances have arisen since the order was made can make it impracticable for the order to be carried out or impracticable for a part of the order to be carried out. Paragraph (b) “where a person has defaulted in carrying out an obligation imposed on the person by the order and in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution of the order.”
In my view, the circumstances that have arisen have arisen at the instigation of the respondent. They have arisen since the order was made and they have arisen in such a way as to diminish the value of the property to the detriment of the applicant. The property appears to have been diminished in value by an amount of $35,000 through no fault of the applicant and through matters that are directly attributable to the respondent.
In my view, it is just and equitable to vary the orders that I made on

30th August 2002 so as to remedy that situation to avoid a miscarriage of justice insofar as the applicant is concerned. As there appears to have been a loss in value of some $35,000, I am of the view that when the property is in fact sold, a figure equivalent to 60 per cent of that lost $35,000 should be a first charge on the proceeds after necessary outgoings, in other words the sum of $21,000 should be paid directly to the applicant prior to a distribution of the net proceeds. The balance should then be divided in the way that was originally set out.
It is for those reasons that I propose to vary Order 2 by setting aside Order 2 pursuant to s.79A of the Family Law Act and substituting a new Order 2.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 2 September 2004