Gibson and Gibson (No.2)

[2017] FCCA 313

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBSON & GIBSON (No.2) [2017] FCCA 313

Catchwords:
FAMILY LAW – Property – enforcement.

Legislation:

Family Law Act 1975, ss.79A, 117

Federal Circuit Court Rules 2001, Sch.1

Cases cited:

Colgate Palmolive v Cussons (1993) 118 ALR 248

Preston v Preston [1982] 1 All ER 41

Applicant: MS GIBSON

Respondent: MR GIBSON

File Number: BRC 1217 of 2014

Judgment of: Judge Lapthorn

Hearing date: 7 December 2016

Date of Last Submission: 7 December 2016

Delivered at: Brisbane

Delivered on: 23 February 2017

REPRESENTATION

Solicitors for the Applicant: Best Wilson Buckley Family Law

Solicitors for the Respondent: Self represented

ORDERS

1. That in furtherance of Order 11(m)(ix)(1) of the Orders of 10 April 2015 and Order 2 of the Orders of 1 July 2016, the balance of funds held in the Trust Account of Ryan Lawyers on behalf of the parties be paid to the Trust Account of Best Wilson Buckley Family Law for the benefit of the Applicant Wife.

2. That in furtherance of Orders 2 and 3 of the Orders of 1 July 2016:

   (a)the Respondent Husband shall pay the Applicant Wife a further sum of $16,368.89 within 12 months; and

   (b)that should monies remain unpaid pursuant to Order 2(a) herein the Wife shall be paid such funds as remain in the Trust Account of Best Wilson Buckley Family Law following the payment of Capital Gains Tax payable by both parties for the 2015/2016 taxation year and the taxation liability arising from the sale of the header in the 2014/2015 financial year.  

3. That the Respondent Husband pay the Applicant Wife's costs of and incidental to this Application fixed at $2,000 within 12 months.

4. That all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gibson & Gibson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1217 of 2014

MS GIBSON

Applicant

And

MR GIBSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. Although final orders for property adjustment between the parties were made on 10 April 2015 they have experienced ongoing difficulties in bringing their property dispute to a final resolution. The orders of 10 April 2015 were varied in part pursuant to s.79A on 1 July 2016 but that variation has not resolved a number of matters in dispute.

2. By way of an Application in a Case filed 11 November 2016 the wife has sought the following orders:

   a)That in furtherance of paragraph 11(m)(ix)(1) of the Order of 10 April 2015 and paragraph 2 of the Order of 1 July 2016, the sum of $332,080.62 held in the Trust Account of Ryan Lawyers on behalf of the parties be paid to the Trust Account of Best Wilson Buckley Family Law for the benefit of the Applicant Wife.

   b)That in furtherance of paragraphs 2 and 3 of the Order of this Honourable Court of 1 July 2016:

   i)the Respondent Husband shall pay the Applicant Wife a further sum of $16,367.89 within sixty (60) days; and

   ii)that should monies remain unpaid pursuant to paragraph 2(a) herein the Wife shall be paid such funds as remain in the Trust Account of Best Wilson Buckley Family Law following the payment of Capital Gains Tax payable by both parties for the 2015/2016 taxation year and the taxation liability arising from the sale of the header in the 2014/2015 financial year.  

   c)That the Respondent Husband pay the Applicant Wife's costs of and incidental to this Application and the Appearance on 2 September 2016 on an indemnity basis as agreed or otherwise as assessed within 90 days.

3. The husband did not file a Response to that application but when the matter came before the Court on 7 December 2016 he handed up a minute of order[1] which may be summarised as follows:

   [1] Exhibit R1

   a)That money currently being held in trust be distributed as follows as per his Honour’s reasons and judgment:

   i)$31,095.15 be paid to the Husband = 37.5%

   ii)$222,713.75 be paid to the Wife = 62.5%.

   b)That upon final calculation re tax liability by accountant Mr M those funds be released and if any funds remain be shared 62.5% Wife and 37.5% Husband.

   c)That evidence from the parties’ accountant Mr M be relied upon.

   d)That upon final distribution of income Ms Gibson amends her tax return to reflect distribution of income from Trust / Mr Gibson.

   e)The calculation done on behalf of the parties by joint accountant be accepted on a final basis. 

   f)That the Court be minded to accept some verbal submissions in relation to ongoing parental alienation by the wife and non‑compliance with parenting orders.

   g)That the financial matter be resolved on a fair and just final basis.

   h)That the Court take into consideration the husband’s current health Post Traumatic Stress Disorder and ongoing support required.

   i)That should this matter not be finalised on the terms sought, liberty be given to refer the matter to the Family Court for appeal and proper determination. 

4. Throughout this judgment I will refer to the property orders made on 10 April 2015 as the “Final Property Orders” and the orders made on 1 July 2016 as the “July 2016 Orders”.  The final property orders are annexed to this judgment as annexure ‘A’ and the July 2016 Orders are reproduced at paragraph 9.

Evidence

1. In support of her case the wife relied upon the following documents:

   a)Application in a Case filed 11 November 2016;

   b)Affidavit of Ms Gibson filed 11 November 2016;

   c)Affidavit of Mr M filed 15 January 2016;

   d)Order dated 10 April 2015; and

   e)Order and Reasons for Judgment of 1 July 2016

2. The solicitor for the wife also filed and relied upon written submissions dated 11 November 2016.

3. The husband also relied on the Affidavit of Mr M filed 15 January 2016.  He did not file any further affidavit in support of his case nor did he file written submissions as directed by my orders of 2 September 2016.

4. The wife accepted the evidence of Mr M and he was not required for cross-examination.  The matter was heard on the papers.

Background

1. Although the matter before me was of narrow compass it is necessary to set out a brief background.

2. The parties were married and commenced living together on (omitted) 1998.  They have two children now aged 17 and 14.  They separated on 24 October 2013 and proceedings were initiated by the wife that day.  The matter was listed for final hearing before me to determine both parenting and property issues on 8 April 2015.  Both parties were legally represented at trial.  After lengthy negotiations orders were made by consent in relation to the parenting dispute on 9 April and for the majority of the property issues the following day.  Three outstanding issues in relation to their property dispute were determined by me after hearing submissions.  For all intents and purposes the orders made on 9 April 2015 and 10 April 2015 were to finalise all matters between the parties.  However the wife filed an Application in a Case on 8 October 2015 seeking orders for the husband to execute a contract of sale of the former matrimonial home and the discharge of certain orders.  I did not make the orders sought by the wife in relation to the sale of the former matrimonial home but gave her the opportunity to amend her application.  This she did. 

3. In her amended application she sought enforcement of the final orders by way of a variation of them pursuant to S.79A(1)(c). Her argument was based on the premise that the husband had failed to comply with the final orders. The husband on the other hand also sought a variation pursuant to S.79A(1)(b) arguing that circumstances had arisen since the making of the orders that made it impracticable for the orders to be carried out. On 1 July 2016 I dismissed the husband’s application but allowed the wife’s application in part. In doing so I made the following orders:

   (1)That pursuant to s.79A(1)(c) the consent orders made 10 April 2015 be varied as follows:

   (a)     Order 11(m)(v) be varied to read:

   the sum of $24,787, to be invested by Best Wilson Buckley Family Law Pty Ltd on behalf of both parties, to pay the estimated capital gains tax liabilities, resulting from the sale of the property, in accordance with the estimate provided by (omitted) Accountants.

   (b)     Order 11(m)(vi) will be varied to read:

   the sum of $30,070, to be invested by Best Wilson Buckley Family Law Pty Ltd on behalf of both parties, to pay the estimated tax liability as the recouped depreciation, if any, resulting from the sale of the header in accordance with the estimate provided by (omitted) Accountants.

   (2)That pursuant to Orders 11(m)(vii) and Order 11(o)(ii) the wife be paid from the husband’s entitlement pursuant to Order 11(m)(ix) and prior to him receiving the entitlement, the sum of $3,464.50. 

   (3)That from the husband’s entitlement pursuant to Order 11(m)(ix) and prior to him receiving the entitlement the wife be paid the sum of $13,008 being her entitlement pursuant to Order 10(f).

   (4)     That all outstanding applications be otherwise dismissed.

   (5)That within 21 days of the date of these orders in the event the parties are unable to determine the amount to be distributed pursuant to Order 11(m)(ix) of the orders made 10 April 2015 taking into account these orders and the reasons for judgment they have liberty to apply on seven (7) days’ notice to the other.

4. The former matrimonial home sold in January 2016 netting $386,937.62.  These funds were deposited into a solicitor’s trust account pending payment out in accordance with the final orders as amended by the orders of 1 July 2016.  In accordance with those orders the sums of $24,787 and $30,070 were paid into, and remain in, the trust account of the wife’s solicitors.  These funds are reserved pending the finalisation of the taxation returns for the parties and the Mr Gibson Family Trust.  I accept the wife’s submission that it has been necessary for her to relist the matter and file her application for enforcement as the husband had refused to agree to the distribution of the balance of funds which amount to $332,080.62 in accordance with the final property orders.

Discussion

1. The husband challenged both the justice and equity of the orders and the calculations that underpinned them. Mr Gibson was legally represented at the final hearing. He consented to the vast majority of the orders and his counsel submitted that the agreement was just and equitable. He did not appeal those orders. He did however seek to have the orders set aside pursuant to s.79A when the matter was brought back in 2016 but he was unsuccessful. He did not appeal the orders of 1 July 2016. I note that in his proposed orders he has sought that liberty be granted for an appeal to the Family Court if the orders he seeks are not made. I explained to him that he would have his rights to appeal but that particular order was not open to me.

2. Whilst I accept the husband has found himself in a very difficult financial position and the former matrimonial home did not net what he was expecting I am not satisfied that he has established any basis for the making of the orders he has sought. During oral submissions he urged me to consider varying the orders to provide for a superannuation splitting order so that he would receive some cash from the proceeds of sale of the former matrimonial home. However, given the final parenting orders were by consent in relation to superannuation; he had previously unsuccessfully argued a s.79A application; and did not have before the court any current application pursuant to s.79A I am satisfied that it is not appropriate to make such orders.

3. Turning to the wife’s case, order 11(m)(ix) of the final property orders provided that upon the sale of the former matrimonial home the balance of the net proceeds of sale was to be paid on the following terms:

   “The balance to be divided as follows:

   1.  a sum calculated such that the wife receives 62.5% of the Assets and Liabilities available for distribution between the parties with reference to the capital schedule annexed hereto and initialled by the parties; and

   2.  the balance to the husband of 37.5%.”

4. I accept the wife’s submission that Order 11(m)(ix)(2) is properly interpreted by direct reference to the preceding paragraph as “a sum calculated such that the Husband receive 37.5% of the assets and liabilities available for distribution between the parties with reference to the schedule annexed hereto and initialled by the parties”.  

5. Order 11(m) is in my view clear in its intent in that there is a hierarchy of payments out of the net sale proceeds.  There is no other provision that would suggest a different order of payment or priority.  I accept the wife’s submission that the husband’s payment is the last to be paid.

6. The terms of the immediately preceding order 11(m)(ix)(1) provide for a precise method for calculating the amount from the remaining sale proceeds to be paid to the wife. That order is clear and particular as to the method and timing of the calculation.  The 62.5% must be determined by having regard to the assets in the schedule.  The phrase “the balance” in order 11(m)(ix)(2) can have no other meaning than to refer to what is left after the nine previous payments have been made.

7. The schedule that formed part of the final property orders is set out below:

Schedule A Property Pool

Item	Person to retain	Agreed Value
Property H	To be sold
Cattle (approximately 47 - 54 head) including (omitted) Bull	To be sold
Plant & Equipment held at Property H	To be retained by Husband	$8,805
Slasher	To be retained by Husband	$1,200
Caravan	To be sold
Toyota Utility	Husband	$27,500
Toyota (omitted)	Husband	$9,500
Ford (omitted)	Wife	$2,500
Furniture & Contents	Wife	$5,675
Quad bike	To be retained by Husband	$1,250
(omitted) Bank Account (omitted), (omitted) Account (omitted), (omitted) Account (omitted)	Wife	$6,800
(omitted) Bank Accounts (omitted) and (omitted)	Husband	$2,337
(omitted) Account (omitted)	Husband	$
(omitted) Account (omitted)	Mr Gibson Family Trust	$1,274
Case Tractor	Husband	$12,500
Legal fees paid from Mr Gibson Family Trust for legal fees to McNamara & Associates and Quinn & Scattini for Husband’s benefit	Husband	$2,500
Funds lost to the parties as a result of the Husband’s failure to make mortgage payments in the period October 2014 to date	Husband	$7,700
AND IT IS ORDERED BY THE COURT: Income received by Mr Gibson Family Trust for 2014: 1.   Income received from use of Harvester - $20,000 (received 09.11.13) 2.   Income received from use of Harvester - $40,623 (invoiced 27.06.2014) 3.   Income received from use of Harvester - $10,000 (received 10.01.2014)	Husband	$70,623
LIABILITIES
(omitted) Bank Mortgage Account Number (omitted)	Joint	To be paid from sale of Property H property
(omitted) Bank Account Number (omitted) (as at 8 March 2015)	Joint	To be paid from sale of Property H property
(omitted) Credit Card, (omitted) Credit Card, (omitted) Account	Husband	Statements as at date of separation to be provided within 21 days and adopted in accordance with Order 8; failing which the debts are excluded.
ATO Liability for recoupment depreciation on harvester in 2015 financial year	Mr Gibson Family Trust	To be paid from sale proceeds of Property H property
SUPERANNUATION
(omitted) Super	Wife	$762
(omitted) Super	Wife	$7,683
(omitted) Super	Wife	$204
(omitted) Super (as at 10 March 2015)	Husband	$48,583
(omitted) Super	Husband	$1,400
(omitted) (as at 10 March 2015)	Husband	$7,600
(omitted) (as at 10 March 2015)	Husband	$10,485

1. The evidence shows that in relation to those items which were not ascribed a value in the schedule the following occurred:

   a)The husband failed to provide disclosure in relation to the balance of his (omitted) Account (omitted).  The wife did not seek to ascribe a value to this entry for the purpose of the calculating her entitlement;

   b)In terms of the liabilities:

   i)the (omitted) Bank Mortgage and Overdraft was discharged at settlement;

   ii)the husband failed to produce the relevant credit card statements as required by order 8 of the final property orders and accordingly they were excluded;

   iii)The “ATO Liability for recoupment depreciation on harvester in 2015 financial year” has been deducted from the proceeds and is held in Trust pursuant pending the finalisation of taxation returns;

   c)the former matrimonial home was sold and the remaining net proceeds are $332,080.62;

   d)The caravan was sold by the Husband and the Wife received 62.5% thereof in January 2016;

   e)The husband failed to pay to the wife her entitlement pursuant to paragraph 10 of the final property orders for the sale of cattle and on 1 July 2016 I made orders that the wife is to be paid $13,008 from the husband’s receipt of funds from the sale of the former matrimonial home; and

   f)As both of the caravan and cattle proceeds are to be divided and paid to the Wife in accordance with Order, the balances are not included in the calculation required by paragraph 11(m)(ix)(1) of the Order of 10 April 2015.

2. I accept the wife’s calculation that when the net proceeds are added to the schedule the total net property pool available for distribution is $568,961.62, of which:

   a)62.5% amounts to $355,601.01; and

   b)37.5% amounts to $213,360.61.

3. I accept the wife’s submission and calculation that in accordance with the orders she would receive:

Proceeds of Sale of former matrimonial home	$331,977.01
Ford (omitted)	$2,500.00
Furniture & Contents	$5,675.00
(omitted) Bank Account	$6,800.00
Superannuation
(omitted) Super	$762.00
(omitted) Super	$7,683.00
(omitted) Super	$204.00
NET TOTAL  (62.5%)	$355,601.01

1. The husband would then receive:

Proceeds of Sale of former matrimonial home	$103.61
Plant & Equipment held at Property H	$8,805.00
Slasher	$1,200.00
Toyota Utility	$27,500.00
Toyota (omitted)	$9,500.00
Quad Bike	$1,250.00
(omitted) Bank Accounts (omitted) & (omitted)	$2,337.00
(omitted) Account (omitted)	$1,274.00
Case Tractor	$12,500.00
Legal Fees paid by the Husband	$2,500.00
Funds lost to the parties as a result of the Husband's failure to make mortgage payments in the period October 2014 to date	$7,700.00
Income received by Mr Gibson Family Trust for 2014	$70,623.00
Superannuation
(omitted) Super	$48,583.00
(omitted) Super	$1,400.00
(omitted)	$7,600.00
(omitted)	$10,485.00
NET TOTAL (37.5%)	$213,360.61

1. The July 2016 orders provided for the wife to receive the sums of $3,464.50 and $13,008 out of the husband’s share of the proceeds of sale of the former matrimonial home.  The distribution set out above will see insufficient funds to enable this order to be met from the remaining proceeds of sale.  Accordingly the wife has sought a separate order that the husband make the balance of the payments within 60 days.

2. I do not accept the wife’s submission that the husband is in a position to meet this payment at this point in time or within the 60 days sought for such payment by her.  I am of the view that given his financial circumstances he should be allowed twelve months to meet that payment but I do accept the submission that if ultimately the capital gains tax liability is less than the $24,787 reserved in trust any remaining sum should then be paid to the wife and deducted from the balance owed by the husband.  In considering this order necessary I have accepted the wife’s submissions that she has faced hardship in waiting for the distribution of the proceeds of sale and the likelihood of further refusal to release funds given the history of the husband’s refusal to date.  At the hearing on 7 December the husband submitted that the wife should receive $222,713.75 but until that day he had not agreed to any funds being released to her.  He is also in arrears of child support and the wife has the full time care of their children.

1. On 7 December I made the following order:

   (1)That by these orders Ryan Lawyers is authorised and directed to forthwith release to Best Wilson Buckley Family Law on behalf of the Applicant wife the sum of $200,000 from funds held in trust pending determination of all outstanding issues before this Court.

2. I am persuaded that the orders sought by the wife should be made.  I will make orders consistent with those sought by her taking into account the orders made on 7 December 2016 and my finding in relation to the time in which the husband should be afforded to pay the outstanding amount to the wife.  This will see her receive the balance of the funds held in Trust from the proceeds of sale.  The sum of $103.61 due to the husband from the proceeds of sale will be deducted from the amount he owes her pursuant to Orders 2 and 3 of the July 2016 Orders leaving the amount owing at $16,368.89.

3. The wife has also sought an order that the husband pay her costs of and incidental to the Application on an indemnity basis.

4. Ordinarily each party to proceedings under the Family Law Act would bear his or her own costs.[2]  However if the court is of the opinion that there are circumstances justifying a costs order the court may make such order as it considers just.[3] In determining whether to make such an order the court is required to have regard to a number of the factors set out in s.117(2A).

   [2] S.117(1)

   [3] S.117(2)

5. Neither party was in receipt of legal aid funding for this application.  Notwithstanding the wife is to receive the greater share of the property adjustment pursuant to the final property orders, and as a consequence of the net proceeds of sale of the former matrimonial home being less than anticipated by the parties, all of the cash component of the net proceeds of sale, I am satisfied her financial circumstances are very modest.  Although she is in employment the wife has the full time care of the children and the husband is in arrears of child support.  The husband’s financial circumstances are also poor.  He is currently unemployed and alleges he has suffered medical issues preventing his return to work.  The husband clearly believed he would receive a reasonable cash component from the proceeds of sale of the former matrimonial home but in light of the sale price that has not eventuated.

6. This application was necessary as the husband did not accept the wife’s interpretation of the final property orders and refused to agree to the release of the funds held in the solicitor’s trust account.  The husband has been wholly unsuccessful in relation to the orders sought by him on the day of the hearing and the wife has been successful in her application.

7. When I weigh these considerations I am satisfied that it is appropriate to make a costs order in the wife’s favour. The wife’s application is for her costs to be met on an indemnity basis. The usual and long standing practice is for costs orders to be made on what is known as a party and party basis and in this court in accordance with the scale of costs set out in Schedule 1 of the Federal Circuit Court Rules 2001.   In order for an indemnity costs order to be made the court needs to be satisfied that the circumstances of the case warrant departing from the usual practice: [4] that there is “some special or unusual feature in the case to justify the court in departing from the ordinary practice.”[5]  

   [4] Colgate Palmolive v Cussons (1993) 118 ALR 248

   [5] Preston v Preston [1982] 1 All ER 41

8. Whilst I am satisfied there is merit in the wife’s argument that the circumstances of this case may warrant an indemnity costs order given the husband’s refusal to agree to the release of the funds from the sale of the former matrimonial home necessitating the bringing of this application and the history of problems in implementing the final property orders when I take into account the husband’s own financial circumstances, I am not satisfied I should exercise my discretion and order costs on an indemnity basis.  I propose to order costs be paid in a lump sum which although the wife’s costs will not be covered by that sum will go some way towards meeting the costs.  I will fix that sum at $2,000 and allow the respondent 12 months to pay.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date: 23 February 2017

Annexure A

1. That the Husband forthwith retain and receive as his absolute property, the title and possession of the following items and the Wife forthwith relinquish and if necessary, within thirty (30) days of the date of this Order, transfer to the Husband all right, title and claim, if any, to the following items:

   a)the farming equipment, farming machinery and chattels in the Husband’s possession;

   b)the credit balance of all bank accounts in the sole name of the Husband and Mr Gibson Family Trust including but not limited to:

   i)(omitted) Bank Account Number (omitted);

   ii)(omitted) Bank Account Number (omitted);

   iii)(omitted) Bank Account Number (omitted);

   iv)(omitted) Bank Account Number (omitted);

   c)the Toyota Utility registration (omitted);

   d)the Toyota (omitted) four Wheel Drive Wagon;

   e)the Husband’s sole trading entity known as Mr Gibson, ABN (omitted);

   f)the entity known as Mr Gibson Family Trust, ABN (omitted);

   g)the entity known as (omitted), ABN (omitted);

   h)the Husband’s entitlements to superannuation including but not limited to the superannuation held in the superannuation funds known as:

   i)(omitted) Super, client number (omitted);

   ii)(omitted) Super (omitted);

   iii)(omitted), client number (omitted); and

   iv)(omitted), member number (omitted).

2. That the Wife forthwith retain and/or receive as her absolute property, the title and possession of the following items and the Husband forthwith relinquish and if necessary, within thirty (30) days of the date of this Order, transfer to the Wife all right, title and claim, if any, to the following:

   a)the furniture, contents, and household effects in the Wife’s possession;

   b)the credit balance in all bank accounts in the sole name of the Wife including but not limited to:

   i)(omitted) Account Number (omitted);

   ii)(omitted) Bank Account Number (omitted);

   iii)(omitted) Account Number (omitted);

   c)the Wife’s Ford (omitted) motor vehicle;

   d)the Wife’s entitlements to superannuation including but not limited to the superannuation held in the superannuation funds known as:

   i)(omitted);

   ii)(omitted); and

   iii)(omitted).

3. That the husband forthwith arrange for the sale of the (omitted) Caravan at the best possible price and cause for the sale proceeds to be divided 62.5% in favour of the wife and the husband to retain the balance 37.5%; with the husband to provide the wife a copy of the contract of sale and/or invoice/receipt evidence of payment within 48 hours of the contract being entered into and monies being received.  

4. That the Husband will forthwith indemnify the Wife and be liable in relation to any liabilities or debts owing to the Australian Taxation Office and any other personal or business liabilities in relation to the entities known as Mr Gibson Family Trust and Mr Gibson (sole trader entity) and (omitted) to 30 June 2015 with the exception of Order 11 (m) (vi) herein; AND IT IS ORDERED BY THE COURT: save and except that the parties will equally share in any tax liability that the husband personally incurs as a result of the income received by the Mr Gibson Family Trust for 2014 as detailed in the Schedule annexed hereto.

5. The Husband will forthwith indemnify the Wife and keep her indemnified with respect to any liabilities or debts associated with the property the Husband is to retain pursuant to these Orders or any liabilities or debts held in the Husband’s sole name.

6. The Wife will forthwith indemnify the Husband and keep him indemnified with respect to any liabilities or debts associated with the property the Wife is to retain pursuant to these Orders or any liabilities or debts held in the Wife’s individual names.

Actions to be taken by Husband

1. For the purposes of determining the final payment to be made to the wife in accordance with Order 11(m)(ix) herein, the husband shall within 21 days provide statements of account as at date of separation for the following credit card accounts:

   a)(omitted)  account;

   b)(omitted)  credit card; and

   c)(omitted) credit card

2. In the event that the husband fails or refuses to supply statements of account as detailed at Order 7 herein, then those debts of the husband shall be excluded from the pool for the purposes of calculating the final payment to be made to the wife.

3. For the purposes of calculating the tax liability referred to in the Schedule annexed hereto, within 45 days of the date of this Order, the husband shall cause to be prepared and filed his income and GST tax returns for the financial years 2013 and 2014; and the income and GST tax returns for the Mr Gibson Family Trust.

The Sale of Cattle

1. The Husband shall arrange for the sale of all cattle held at Property H on the following conditions:

   a)The husband is to provide the wife with not less than 7 days notice of the pending auction of any cattle; including full particulars regarding the number and type of cattle to be sold, the reserve price for the cattle;

   b)The cattle shall be sold within 60 days of the date of this Order;

   c)The Cattle shall be sold at the (omitted) Saleyards;

   d)That the husband is to direct and authorise the saleyards to provide copies of sales invoices and sales documents directly to the wife;

   e)A sum referable to GST to be paid to the Husband for his payment of taxation;

   f)the balance of the proceeds of sale after payment of GST and commission and costs of sale be divided as to 62.5% to the wife and 37.5% to the husband;  

   g)within 7 days of the date of this Order the wife shall provide to the husband the cattle brand from the office of Best Wilson Buckley Family Law, Toowoomba in order to enable the cattle to be prepared for sale;

   h)the husband shall return to the wife the cattle brand within 7 days of the final auction of cattle occurring by delivering the same to the office of Best Wilson Buckley Family Law, Toowoomba.

Sale of Former Matrimonial Home at Property H

1. That within seven (7) days of the date of this Order, the property known as Property H (“the property”) shall be listed for sale by the Wife and Husband (“the parties”) and the parties shall do all acts and sign all documents necessary to effect the sale of the property and by way of consequential arrangement for the purposes of effecting the sale:

   a)the property shall be listed for sale by private treaty with (omitted) of (omitted) or such other real estate agent as agreed in writing between the parties;

   b)the advertising costs are to be equally shared by the parties;

   c)the list price of the property shall be $775,000;

   d)the listing price is to be reviewed each 2 calendar months after the commencement of the listing of the property for sale; and agreed between the parties, and in the absence of the agreement, the listing price shall be set in accordance with the recommendation of the listing agent;

   e)the sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price;

   f)the parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;

   g)that upon agreement being reached for the sale of the property the parties shall execute a contract for sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submissions to them by the agent or their solicitor;

   h)if possible, the contract of sale shall provide for completion within 30 days after the date of the contract unless otherwise agreed by the parties;

   i)In the event that the parties do not sell the property by private treaty at more than $530,000 within six (6) months from the date of this Order then the husband will be afforded an opportunity within 14 days to purchase the property at $530,000 with said proceeds to be distributed in accordance with 11(n) herein; including payment to the wife of her property settlement entitlement calculated in accordance with Order 11(m)(ix)  herein.

   j)In the event the husband fails to make payment to the wife in accordance with 11(i) herein and refinance the mortgage and bank debt secured against the property, then the parties shall do all acts and sign all documents as necessary to sell the property by auction and the following shall apply:

   i)the property shall be listed with the agent appointed under paragraph 11(a) herein (hereafter referred to as “the auctioneer”) for sale by auction within sixty days of the deadline date for sale by private treaty;

   ii)the parties shall execute all documents requested by the auctioneer for sale of the property by auction;

   iii)the reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties seven (7) days prior to the auction, then the reserve price shall be nominated by the auctioneer;

   iv)the auction costs shall be met equally by the parties;

   v)the parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;

   vi)that the parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;

   vii)the sale price of the property shall be an amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property being such an amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price 90% of the reserve price shall be accepted by the parties;

   k)in the event that the property is not sold at the auction or within fourteen (14) days after the date of the auction by further negotiation, then the parties shall cause a further auction for the property to be held within one (1) month after the date of the first auction and the property shall be sold at auction;

   l)in relation to conveyancing, the Wife shall furnish a list of three (3) solicitor firms which provide conveyancing services and the Husband shall select a firm within seven (7) days.  In the event that the Husband fails to select a conveyancer from the list within seven (7) days, then the Wife shall select the conveyancer at the Wife’s sole discretion;

   m)the proceeds of the sale of the property shall be paid in the following manner priority:

   i)to discharge the mortgage and/or mortgages encumbering the property;

   ii)payment of any council or water rates outstanding with respect to the property (such funds to be paid from the Husband’s entitlement pursuant to Order 11(m)(ix) herein);

   iii)payment of the agent’s commission and advertising and other expenses, if any, payable;

   iv)payment of legal costs and outlays relating to the sale of the conveyance of the property;

   v)a sum (to be invested by Best Wilson Buckley Family Law Pty Ltd on behalf of both parties) sufficient to pay the estimated Capital Gains Tax liabilities, if any, resulting from the sale of the property, with such estimate to be provided by (omitted) accountants;

   vi)a sum (to be invested by Best Wilson Buckley Family Law Pty Ltd on behalf of both parties) sufficient to pay the estimated tax liability as the recouped depreciation, if any, resulting from the sale of the header with such estimate to be provided by (omitted) accountants; and

   vii)payment of any expenses to the Husband and/or Wife to be reimbursed pursuant to this Order;

   viii)reimbursement to the husband and wife for reasonable expenses they incurred in relation to preparation for and to enable the cattle sales on the condition that the party seeking reimbursement provides to the other a copy of invoices/receipts for those expenses prior to settlement of the property;

   ix)the balance to be divided as follows:

   (1)a sum calculated such that the wife receives 62.5% of the Assets and Liabilities available for distribution between the parties with reference to the Schedule annexed hereto and initialled by the parties; and

   (2)the balance to the Husband of 37.5%.

   n)pending the completion of the sale of the said property:

   i)the Husband shall be responsible for all payments of rates including arrears of rates and outgoings of the property (including mortgage repayments including principal and interest) as they fall due up to and including the settlement date;

   ii)the parties shall hold their respective interest in the property upon trust pursuant to these Orders;

   iii)neither party shall encumber the property without the consent in writing of the other party or any mortgagee;

   iv)that the Wife be at liberty to attend upon the property on no more than one (1) occasion each fortnight in the company of a Queensland Police Officer on the basis that the Wife provide the Husband with twenty-four (24) hours prior written notice of her intention to seek the assistance of a Queensland Police Officer to attend upon the property at the earliest opportunity and that the Husband facilitate the Wife’s access to the property in the company of a Police Officer and IT IS ORDERED BY THE COURT the wife is not permitted to remove any item or thing from the property; otherwise the husband is to have sole use and occupation of the property without interference by the wife;

   v)AND IT IS ORDERED BY THE COURT notwithstanding 11 (n)(iv) the wife is permitted to attend open houses conducted by the real estate agent without the need to be in the company of a police officer;

   o)in the event that the Husband fails to pay any expenses pursuant to Order 11(b) and/or Order 11(j)(iv) and/or Order 11(n) herein:

   i)in the event paragraph Order 11(i) applies the husband shall pay to the wife a further sum equal to 62.5% of any amount not otherwise paid by the Husband, including interest and penalties charged by the local Council, bank or creditor.

   ii)in the event the property is sold to a third party, the parties shall pay to the wife from the husband’s entitlement pursuant to Order 11(m)(ix)(2) herein, 62.5% of any amount not otherwise paid by the Husband, including interest and penalties charged by the local Council, bank or creditor.

Mr Gibson Family Trust

1. That forthwith, the Wife shall relinquish and abandon her entitlement to the income and capital of the Mr Gibson Family Trust and/or any other distribution declared or to be declared, or any benefit of whatsoever nature or kind in respect of the Mr Gibson Family Trust.

1. That forthwith, the Husband and the Wife shall do all acts and things and sign all documents required within three (3) business days from the date of presentation of the documents by the Husband to the Wife to relinquish her being a beneficiary to the said Trust, at the Husband’s sole cost.

2. The Husband shall indemnify the Wife in relation to any and all liabilities and taxation properly payable by the Trust.

Close Bank Account

1. That within seven (7) days of the date of these Orders the parties do all that is necessary and sign all documents as required to close the joint account held with (omitted) Bank Account Number (omitted).

Power to the Registrar

1. That each party shall do all acts and things reasonably required by the other including signing or execution of all documents to give effect to the provisions of this Order within seven (7) days of being requested to do so in writing.

2. If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then the Registrar of the Brisbane Registry of the Federal Circuit Court is hereby appointed under Section 106A of the Family Law Act (Cth) 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

3. The costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further Order of that Honourable Court and may be taxed or fixed by the Registrar or Deputy Registrar and thereafter shall be recoverable from the defaulting party by the other party as a debt (including by garnishing the proceeds of sale pursuant to Order 11(m) herein).

4. That either party have liberty to apply as to implementation or enforcement of these Orders upon the giving of seven (7) days written notice to the other in particular if there is any default in relation to the payment of the mortgage.