Gerard & Gerard (No 2)

[2011] FamCA 687

FAMILY COURT OF AUSTRALIA

GERARD & GERARD (NO 2) [2011] FamCA 687

FAMILY LAW – maintenance – CHILDREN – children to live with mother – child support – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT: Ms Gerard

RESPONDENT: Mr Gerard

FILE NUMBER: MLC 1251 of 2011

DATE DELIVERED: 14 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Devine

SOLICITOR FOR THE APPLICANT: Berry Family Law

ORDERS

1. That the wife have leave to proceed against the husband in respect of her application on an undefended basis.

2. That paragraph 8 of the orders made on 24 March 2011 relating to the flagging order is discharged.

3. That the wife’s application for spousal maintenance is dismissed.

4. That the children B born 29 April 1998 and C born 30 November 2001 live with the wife.

5. That the children spend time with and communicate with the husband as may be arranged between the parties from time to time.

6. That pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the administrative assessment of child support henceforth for the period of three years commencing 29 April 2011.

7. That the child support for the said three year period commencing 29 April 2011 be fixed in the sum of $30,000 such sum:

   (a)    to be credited against any liability that the husband may have only during the three year period referred to but not otherwise; and

   (b)    be paid by the husband from his entitlement arising out of the sale of the property at N Street, Melbourne Suburb 1 referred to hereafter in these orders.

8. That the husband do all acts and things forthwith and sign any necessary document to sell the property at N Street, Melbourne Suburb 1.

9. That the sale price for the said real property is to be determined by agreement between the husband and wife and if no agreement is reached within 14 days of this date, the price be determined by a valuer appointed by the President for the time being of the Victorian Division of the Australian Institute of Valuers and Land Administrators (Incorporated) and the cost of such valuation be borne equally between the parties.

10. That in the event that a valuation is required, the valuer be requested by either party first as at the date of first listing of the property and thereafter at intervals of three calendar months until the real property is sold.

11. That D Real Estate be appointed as the agent for the sale. 

12. That the real property be listed for auction on a date organised by the said real estate agent and if it remains unsold after the first auction, it be relisted by public auction again on further dates as may be nominated by the said real estate agent. 

13. That the husband and wife each do all things necessary to cooperate with the said real estate agent including:

    (a)    making the key available;

    (b)    allowing inspection of the real property at all reasonable times requested by the said real estate agent;

    (c)    ensuring the real property is kept in neat and clean condition at the time of inspections; and

    (d)    signing all documents requested by the agent for the purposes of listing of the real property for sale.

14. That the husband and the wife appoint F Conveyancing of E Street, Suburb 2 to have the conduct of the sale on behalf of both parties.

15. That the parties have general liberty to apply on short notice as to the terms and conditions of the sale.

16. That pending the settlement of the sale of the said real property:

    (a)    the parties hold their respective interests in the Melbourne Suburb 1 property upon trust pursuant to these orders;

    (b)    neither party encumber of further encumber the real property without the consent of the other party in writing.

17. That upon the settlement of the sale of the said real property, the proceeds be applied as follows:

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

    (b)    to discharge any encumbrance affecting the property; and

    (c)    to divide the balance thereafter as to $600,000 to the wife and the balance thereafter to the husband.

18. That from the husband’s share referred to in paragraph 17 hereof, the following be also paid to the wife:

    (a)    the sum of $30,000 being the lump sum child support referred to in paragraph 7 above; and

    (b)    a further sum of $10,000 by way of an order for costs referred to below. 

19. That the husband pay towards the wife’s costs the sum of $10,000 which shall be satisfied by the order set out in paragraph 18.

20. That each party otherwise retain the assets in their possession and the other relinquish any interest in those assets save that the chattels in the said real property be divided equally between the husband and the wife saving further, all items of furniture in the children’s rooms which will be retained by the wife.

21. That in addition to foregoing, each party relinquish any interest in any superannuation or other emoluments to which the other is entitled.

22. 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.

23. That all outstanding applications be otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Gerald & Gerald has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1251 of 2011

Ms Gerard

Applicant

And

Mr Gerard

Respondent

REASONS FOR JUDGMENT

1. In this matter I have an application in a case which seeks orders under section 106A of the Family Law Act 1975 (Cth) (“the Act”), that a Registrar sign in the name of the husband any documents necessary to give effect to the orders that I made on 29 April 2011.

2. On the file is an affidavit of service of that order upon the husband and, ironically, there appears with the affidavit of service an acknowledgement of its receipt. 

3. The wife has indicated that nothing has changed, as has an affidavit of a real estate agent who was unsuccessful in getting the husband to be cooperative. 

4. It is quite clear, therefore, that the husband is not going to take any steps to enable the implementation of the order made on 29 April. Clearly, one of the important steps is to get documents completed so that the property can be sold. It goes without saying, also, that the wife will probably need to make further applications because of the intractable position that the husband has adopted. This is a clear example where an order under section 106A of the Act is appropriate.

5. There is also an application for the husband to pay the wife’s costs which are estimated to be in the range of $2500. Section 117 in the Act requires that each party pay their own costs unless there are circumstances that justify the Court departing from that principle and if the Court so finds such a justifying principle it must take into account the matters in section 117(2A). There are clearly financial circumstances here that have been determined on 29 April entitling the wife to the fruits of her long marriage, which the husband seems to be thwarting. This is a justifiable circumstance to depart from the principle. There are funds in both party’s hands, when the matter ultimately is resolved and there are no other real considerations other than the fact that the husband has obviously failed to comply with the orders.

6. This is a case, therefore, where there ought to be an order for costs in the wife’s favour.  I take into account also that the costs on scale would be significantly higher having regard to the paperwork that has been done and the appearance today.  But I think the sum of $2500 is reasonable in the circumstances.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 June 2011.

Associate: 

Date:  14 July 2011