Gresham & Gresham
[2021] FamCA 111
•12 March 2021
FAMILY COURT OF AUSTRALIA
Gresham & Gresham [2021] FamCA 111
File number(s): SYC 7914 of 2016 Judgment of: ALTOBELLI J Date of judgment: 12 March 2021 Catchwords: FAMILY LAW – INTERIM PROPERTY – Spousal maintenance –Where husband seeks to discharge spousal maintenance order as at date paid – Where husband failed to pay spousal maintenance – Where husband failed to pay court-ordered costs – Whether rental payments collected by the wife on the former matrimonial home be characterised as income or spousal maintenance – Whether husband has capacity to pay spousal maintenance and outstanding costs – Rental payments determined to have the character of maintenance – Spousal maintenance order suspended. Legislation: Family Law Act 1975 (Cth) ss 83, 117B
Family Law Rules 2004 (Cth) Pt 13.1
Cases cited: Furtado & Furtado [2011] FamCA 1018
Holbert & Holbert (No.2) [2020] FamCA 601
Riley & Riley (No. 2) [2014] FamCA 956
Strahan & Strahan (interim property orders) (2011) FLC 92-466; [2009] FamCAFC 166
Number of paragraphs: 62 Date of last submission/s: 20 January 2021 Date of hearing: 20 January 2021 Place: Sydney Applicant: In person Counsel for the Respondent: Mr Lethbridge SC Solicitor for the Respondent: Watson & Watson Solicitors ORDERS
SYC 7914 of 2016 BETWEEN: MS GRESHAM
Applicant
AND: MR GRESHAM
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
12 MARCH 2021
THE COURT ORDERS THAT:
1.The matter be adjourned to 19 July 2021 at 9.30am for Mention for the purpose of assessing the matter’s readiness for trial and making trial directions.
2.Pending further order, the husband’s obligation to pay the mortgage on the former matrimonial home be discharged.
3.Within seven (7) days of the date of these orders, the husband pay the outstanding $17,178.41 pursuant to the cost award ordered by the Full Court of the Family Court of Australia on 4 June 2020, and, pursuant to s 117B of the Family Law Act 1975 (Cth), pay interest on the above amount in accordance with r 17.03 of the Family Law Rules 2004 (Cth).
4.Within seven (7) days of the date of these orders, the husband is to provide to the wife complete copies of his tax returns submitted to, and tax assessments issued by, the Australian Taxation Office since 2015, as well as equivalent documents for the Internal Revenue Service of the United Kingdom in respect of the same period.
5.That within 14 days of the date of these orders, the parties do all acts and things and sign all documents necessary so as to effect a sale of the G Street property for the best price reasonably available in the following manner:
(a)Both parties having already signed a document of appointment of TT Agents as selling agent, the Wife Applicant provide TT Agents with the required documentation of proof of identity to enable the listing of the property;
(b)The reserve price for the purposes of sale shall be GBP 420,000 or such price as may be mutually agreed upon by the parties;
(c)The parties shall cooperate in every way with the Agent;
(d)Authority is granted for the agent to negotiate with a potential purchaser at a price not less than 85% of the reserve price, or at such other price as the parties agree upon writing;
(e)The parties shall each execute a Contract for Sale in the form prepared by solicitors having the conduct of the sale at the sale price;
(f)The parties shall instruct VV Pty Ltd as solicitor to act on the conveyance of the property or alternative as mutually agreed by the parties;
(g)Neither party may confer on any Agent without the consent of the other party any right to any sole or exclusive agency in respect of the Property or to any commission;
6.If the Agent shall certify in writing to the parties' solicitors it is reasonably necessary for work specified in such notice to be carried out to the Property so as to assist in effecting sale and provided the costs of any such work is less than GBP1,000 either party may cause such work to be carried out and the costs thereof shall be borne by the party who elects to proceed with the work. Pending further order, unless the parties otherwise agree in writing, the net proceeds of sale of the G Street, City H property be held in a controlled monies trust account for the benefit of the parties.
7.Within 14 days of the date of these orders, the husband is to provide to the wife a list of all joint accounts held by the parties, irrespective of location. Thereafter, both parties are to do all such things to close such accounts, with the exception of any account linked to and needed for the purposes of any mortgage liability of the parties.
(a)Upon the closure of any said joint account, the parties are to divide between them as agreed the net proceeds and, failing agreement, such amounts are to be paid, pending further order, into a controlled monies trust account.
8.Within 14 days of the date of these orders, the wife is to provide to the husband the following:
(a)Copies of all rental statements and receipts for rent received in respect of the property at D Street, Suburb E (‘the former matrimonial home’) from the date of the commencement of the lease in respect of the former matrimonial home and to date;
(b)Copies of all Notices for rates, utilities, insurance and other outgoings in respect of the former matrimonial home, and any and all proof of payment in relation to the same, from the date of the commencement of the lease in respect of the former matrimonial home and to date;
(c)Copies of all Applications for Employment made by the wife from 1 June 2016 to date;
(d)Copies of all Applications for finance or re-finance made by the wife in respect of the former matrimonial home from 1 June 2016 and to date;
(e)Copies of all statements in respect of bank accounts held and/or operated by the wife from 1 July 2019 to date including, but not limited to, the following bank accounts:
(i)Westpac Bank Choice Account ending ...64;
(ii)Westpac Bank Choice Account ending ...38;
(iii)Westpac Bank eSaver Account ending ...82;
(iv)WW Bank Cheque Account ending ...36;
(v)ANZ Access Account (BSB ...);
(vi)XX Bank (City H) Account- ...34;
(vii)Account or accounts into which rent received for the former matrimonial home was deposited.
9.Within 14 days of the date of these orders, the wife is to direct the managing agent for the rental of the former matrimonial home to provide to the husband all communications in relation to payment of rent, rent receipts and management of the property.
10.In the event that the wife re-leases the former matrimonial home, the wife is to, or direct the managing agent to, provide to the husband all communications in relation to payment of rent, rent receipts and management of the property, and continue to provide the same for the duration of the lease.
11.In the event that the husband and his co-owner sell the property at J Street, City H then the husband's share of the proceeds of sale of the J Street property be applied as follows:
(a)In payment of the husband's share of costs of sale including agent's commission;
(b)Thereafter,
(i)50% of the remaining proceeds be paid into a Joint UK bank account, and to be used for:
A.Payment of any Capital Gains Tax that may be payable by the husband;
B.Payment of any costs of the determination of the amount of Capital Gains Tax payable and of any costs incurred in the making of that payment and upon payment of any Capital Gains Tax; and
C.Payment of any other costs associated with the property as may be at that time outstanding; and
D.Any surplus to be paid to the parties in equal shares.
(ii)50% of the remaining proceeds to be divided equally divided between the parties.
12.That the husband may provide to the wife alternative options with respect to private health insurance coverage for the wife and the children.
13.Within 28 days of the date of these orders, the wife file her Individual Income Tax Return for the 2019-2020 year.
14.In relation to spousal maintenance, the following orders be suspended pending further order:
(a)Order 2 of the orders made by consent by Le Poer Trench J on 6 September 2017;
(b)Order 4 of the orders made by McClelland DCJ on 19 October 2018.
15.Pending further order, the wife is restrained from commencing or continuing enforcement proceedings against the husband with respect to the payment of spousal maintenance or maintenance-type payments.
IT IS NOTED THAT:
A.This matter is listed for a four-day final hearing commencing 8 November 2021 at 10:00am.
B.During the period that the former matrimonial home at Suburb E was rented out, and the wife received monthly rental, such rental payments be characterised as maintenance paid to her by the husband.
C.Orders 14 and 15 do not affect the husband’s obligations to pay Court-ordered costs or his financial obligations to, or for the benefit of, his children.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gresham & Gresham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction
These reasons for judgment explain the orders that the Court has made in relation to two competing Applications in a Case filed by the wife and husband in these proceedings.
Background
Property and maintenance proceedings between the parties have been on foot since 2016. The matter has had a somewhat unfortunate litigation history. It is for this reason that the final hearing of this matter has been expedited and is currently listed before me for hearing for four days commencing 8 November 2021. The wife is the Applicant in the substantive proceedings, and her Application in a Case was filed on 14 August 2020. The husband is the Respondent in the substantive proceedings, and his Application in a Case was filed on 23 November 2020.
The husband is 52 years old and describes himself as a manager. The wife is 48 years old and describes herself as a homemaker. They married in 2003 and separated in June 2016. Later that year, in November, the wife filed the substantive application before the Court. The parties have three children, aged 13, 11 and nine. The children live with their mother, but spend substantial and significant time with their father.
During their relationship the family lived in both England and Australia and acquired real estate in both jurisdictions. The former matrimonial home is located in Suburb E and is currently occupied by the wife and the children.
Litigation History
There is a long litigation history between the parties, some of which is necessary to traverse.
On 6 September 2017 Le Poer Trench J made orders by consent that provided for the wife to have exclusive use and occupation of the home at Suburb E and for the husband to pay by way of spouse maintenance all mortgage repayments, utility accounts, house and contents insurance premiums, and council rates. In addition, the husband was to pay all premiums on the family health insurance policy at the current level of that policy.
On 7 May 2018, Rees J made further orders by consent. Monies from a named investment account was to be used as the source for the payment of $50,000 to the wife to be characterised by the trial Judge, as well as the amount necessary to pay in full the outstanding school fees for the children.
On 19 October 2018, McClelland DCJ made a number of orders after an interim hearing. A named investment was to be the source for the payment of $185,000 into the C Account. Out of the Offset Account, the wife was to receive up to $40,000 to reimburse her for medical expenses, and $145,000 was to be paid to the wife’s solicitors for legal costs. The husband was to pay to the wife periodic spousal maintenance in the sum of $931 per week but such payment was to, in effect, emanate from the said named investment until these funds were exhausted. The parties were to join in an application to require their bank to reduce the current repayments in respect of the mortgage to interest only. The husband was to pay for private health insurance for the children as well as any gap medical expenses. The husband was also to pay any costs of and incidental to the children attending their current schools, together with a number of additional school-related expenses. There was a specific order dealing with the interaction of the payments required with liability for child support. The Court observes that the evidence indicates that the parties’ bank would not agree to converting payments to interest only but subsequently did agree to grant hardship relief for a relatively short period.
On 19 December 2018, McClelland DCJ made orders by consent relating to the parties mortgage offset account. As and from 21 December 2018, the offset account was to be used as the source of funds to meet the wife’s spousal maintenance in the sum of $931 per week, for as long as there were sufficient funds in that account to meet the obligation. In addition, the wife was to receive $3,591 from the offset account in relation to the husband’s spousal maintenance obligation between 17 October 2018 and 14 November 2018. The Court observes that it is clear that there must have been issues with the husband’s capacity to pay the spousal maintenance out of his income as at 19 December 2018 because the parties agreed, in effect, that the offset account was to be the source of payment. The 19 December 2018 orders merely highlight this. This confirms that, by consent, capital was being applied to the payment of periodic expenses relating to the wife and children, as well as her legal fees.
On 2 April 2019, McClelland DCJ made further orders. The husband was to release to the wife $18,932.50 from the Suburb E, with this appearing to relate to medical expenses. In addition, $50,000 was to be paid by the husband to the wife’s solicitors on account of her legal costs and an amount of up to $45,000 be paid to the wife’s solicitors from the offset account. Moreover there was an order to the effect that as the husband had not already paid what would appear to be the balance in the sum of $2298 of the lump sum of $50,000 ordered to be paid on 7 May 2018, such was to be paid forthwith.
On 11 October 2019 (and amended on 17 December 2020), Henderson J made final parenting and property orders as between the parties. In short, the children were to spend time with their father for five out of 14 nights each fortnight, for half of the Christmas school holidays, and on special days. The orders for alteration of property interests reflected a split of 60% to the wife, and 40% to the husband, with the wife being granted the opportunity to retain the family home at Suburb E and to buy out the husband. There was no order for further spousal maintenance. All previous orders with respect to the children were discharged including in relation to school fees, though the Court noted that the husband would continue to pay for private health insurance for the children.
On 20 December 2019, Henderson J made further orders, in the context of a stay application pending an appeal against her orders made 11 October 2019. As will be seen, the appeal against the orders made on 11 October 2019 was allowed by consent, and those orders were set aside. As the orders made 20 December 2019 cannot stand independently of the orders made 11 October 2019, they are no longer valid. It follows that the husband’s legal obligations reverted to the situation that existed before the orders made by Henderson J on 11 October 2019.
On 4 June 2020 the Full Court ordered the husband to pay the wife’s costs of and incidental to the Appeal fixed in the sum of $37,178.41 within 42 days of the date of the orders, meaning payment was due on 16 July 2020. It is common ground that the costs have not been paid in full.
The orders sought
The orders sought by the wife are found on the last page of her Case Outline document, an amended version of which the wife provided to the Court at the interim hearing on 20 January 2021. This document is reproduced in the first schedule to these reasons. In short, and in descriptive terms, the wife seeks payment to her by the husband of an outstanding costs order made by the Full Court of the Family Court in an Appeal. She also seeks interest on the costs. The wife seeks an order that the husband pay spousal maintenance, as well as all arrears of mortgage payments that arose as a result of his failure to pay the mortgage on the former matrimonial between March and December 2019, contrary to orders of this Court to do so. The wife also sought orders in relation to disclosure, investments, the parties’ property in City H known as G Street and joint bank accounts. Finally, the wife sought an order for a date to be fixed for a final hearing. The wife was representing herself in the present application, though she was legally represented earlier in the proceedings, and indicated to the Court that she would, once again, become represented for the final hearing.
The orders sought by the husband were contained in a short minute of orders attached to his Case Outline document filed on 19 January 2021, which were amended during oral submissions by senior counsel for the husband, Mr Lethbridge. A copy of these orders is reproduced in the second schedule to these reasons. By way of short description of the orders, he sought that the wife file a fully compliant Financial Statement, that she provide disclosure of certain documents, and that any order that required the husband to pay the mortgage or costs of maintaining the former matrimonial home be discharged from the date to which they have been paid by the husband. The husband sought a similar order in relation to the orders for him to pay spousal maintenance for the wife—that is, that those orders be discharged from the date to which they stand paid.
The husband sought an order for sale in relation to the former matrimonial home at Suburb E. He also sought orders for sale of the parties’ property in City H known as G Street and a number of ancillary orders about health insurance, a taxation return, and in relation to his obligation to pay school fees.
At the interim hearing, during submissions, Mr Lethbridge SC indicated to the Court that the husband made a number of concessions. Firstly, he conceded that the wife was entitled to be paid the outstanding costs arising out of the appeal, amounting to $17,178.41, including interest if that is what was required by s 117B of the Family Law Act 1975 (Cth) (‘the Act’), but that this amount should come out of the sale proceeds of the former matrimonial home. He made no alternative proposal, however, should the Court not order the sale of the former matrimonial home. Mr Lethbridge SC also conceded order 4 sought by the wife in relation to the husband’s taxation returns.
The wife also made a number of concessions. She did not oppose the orders sought by the husband for the sale of the G Street property in City H. She also did not oppose the order the husband proposed in relation to the possible sale of a property he co-owns at J Street, City H. The wife conceded that insofar as she sought an order enforcing the orders for the husband to pay the mortgage when he failed to do so, she did not press this in respect of the period when she had vacated the former matrimonial home, rented it out, and paid the mortgage out of the rental payments. In respect of this period, however, the wife was anxious for the Court to characterise the rent that she received as spousal maintenance, rather than as income which would then affect her child support entitlement. The wife strenuously opposed the husband’s application to seek a discharge of orders requiring him to pay maintenance and the mortgage on the former matrimonial home.
The husband concedes that there were orders for him to pay spousal maintenance, as well as the mortgage and outgoings on the former matrimonial home. In addition, he concedes he was liable to pay school fees, health insurance, and child support. The husband contends that when he became unable to meet these obligations from his income, he liquidated assets held by the parties and, in effect, used capital to meet his obligations. The wife concedes that she was aware of, and consented to, some of these capital disposals. The husband concedes that he stopped paying maintenance on 13 December 2019. He also concedes that he did not meet all mortgage payments and pay school fees in full when due, but does not give a date of last payment.
The wife, in her submissions, conceded that her parents, Mr & Mrs YY, currently assist her with the payment of the mortgage over the former matrimonial home ($9176 per month) as well as with electricity, telephone, gas, water rates, council rates, pool cleaning, home and contents insurance, and motor vehicle insurance. In item 18 of the wife’s Financial Statement filed 19 January 2021, she quantified the expenses paid by her parents for her benefit at $2613.54 weekly. The wife conceded that if the expenses were being paid for by her parents, they were not expenses that she was herself paying. She explained that her parents were providing assistance pending the final hearing to keep a roof over the head of the wife and the children so that they could have as much stability as possible. If it was not an express part of the wife’s case, it was certainly strongly implicit, that her parents could assist her to retain the former matrimonial home as part of a final property settlement with the husband.
As will be seen, a multitude of potentially complex issues arise in this interim application, not all of which could be determined without further evidence and cross-exanimation.
The Court will proceed by dealing with each of the orders and issues sought by the parties, commencing with the wife.
The evidence before the Court
In support of her case, the wife sought to rely on the following documents:
(a)Her Affidavit filed 23 November 2020 and corresponding tender bundle;
(b)Her Affidavit filed 19 January 2021 and corresponding tender bundle;
(c)Her Financial Statement filed 19 January 2021;
(d)Her Case Outline document filed 19 January 2021;
(e)Minute of orders handed to the Court on 20 January 2021, marked as exhibit R1.
In support of his case, the husband sought to rely on the following documents:
(a)His Application filed 23 November 2020;
(b)His Affidavit filed 23 December 2020 and corresponding exhibit bundle;
(c)His Financial Statement filed 23 December 2020;
(d)His Case Outline document filed 19 January 2021;
(e)A document on the letterhead of AC Finance, marked as exhibit A1;
(f)A document on the letterhead of AD Group, marked as exhibit A2;
(g)Financial balance sheet, marked as exhibit A3 (to be used as an aide-memoire);
(h)Orders of McClelland DCJ made 19 October 2018, marked as exhibit A4.
The orders sought by the wife
The first order sought by the wife seeks that the matter be listed urgently, making reference to the unpaid costs awarded by the Full Court. Order 2 specifically seeks that the husband pay to the wife the unpaid costs awarded by the Full Court together with interest. The husband’s response to this was to agree, in principle, that the wife was entitled to this, but to assert that due to his lack of capacity, this money could only come from the sale proceeds of the former matrimonial home. No submission was made that interest was not payable under section 117B of the Act. There can be no doubt that s 117B applies. The Court does not accept the husband’s contention and will, for reasons articulated below, decline to order the sale of the former matrimonial home. In circumstances where the wife’s parents are now paying the mortgage and outgoings on the former matrimonial home, the Court will discharge his obligation to do so and will ultimately conclude that he does have the capacity to pay the costs plus interest. An order in terms of that proposed by the wife will be made, and the husband is asked to seriously consider his position if the Court finds that he declines, or continues to decline, to pay the same.
Order 3 sought by the wife was that the husband pay the arrears on the mortgage over the former matrimonial home between March 2019 and December 2019, a sum she asserted to be $32,491. This amount is established by the evidence in the form of a letter from ANZ Bank, contained in exhibit G to the wife’s Affidavit filed 23 November 2020. There is no dispute that between March and December 2019 the husband was liable to pay the mortgage, and lapsed in those payments. He contends that he did not have the capacity to pay. The wife’s evidence is that she moved out of the former matrimonial home at Suburb E to smaller accommodation because the husband was not paying the mortgage. In oral submissions, the wife told the Court that the tenants moved into the former matrimonial home on 18 October 2019 and she and the children then moved to a smaller property in Suburb E in November 2019.The wife and the children moved back in to the former matrimonial home on 13 November 2020. Thus, the former matrimonial home was rented out with the wife collecting all of the rental for one year between November 2019 and November 2020. The wife seeks arrears for the period of March 2019 to December 2019.
Whether the husband should be required to pay the arrears in respect of the closed period sought by the wife is dependent on the view the Court forms about his assertion that he did not have capacity to pay the mortgage in relation to this period. This question is the fundamental question to be answered in the context of his applications for various orders to be discharged as at the date that they are paid. A forensic assessment will need to take place in due course if the evidence allows. This will be discussed below.
Order 4 sought by the wife related to the husband providing copies of tax returns. Whilst his senior counsel contended that tax returns had in fact been provided up until the date of the previous hearing before Henderson J, his instructions were that more current tax returns were available and would be provided. Accordingly, the orders that the Court will make in this regard is that within seven days of the making of this order, the husband provide to the wife complete copies of his tax returns submitted, and tax assessment issued, by the Australian Taxation Office since 2015, as well as equivalent documents for the Internal Revenue Service of the United Kingdom in respect of the same period.
Order 5 sought by the wife related to what she described as group certificates from the husband’s employer. The Court’s impression is that in the exchange between bench and bar table the wife may have become reassured that the creature formerly known as a group certificate no longer exists. All information relating to the husband’s income is otherwise properly disclosable pursuant to Part 13.1 of the Family Law Rules 2004 (Cth). There is no need to make this further order.
Order 6 sought by the wife is that any money received as a result of the renting out of the former matrimonial home be classified as spousal maintenance. The husband opposed this, principally on the basis that the wife’s Financial Statement was filed late, and in any event, incomplete. Senior counsel submitted that it was not possible to accurately and retrospectively recharacterise payments in the way of rent received exclusively by the wife as something which is actually in the character of maintenance. This Court disagrees. The fact of the husband ceasing to pay the mortgage as from April 2019 is not a fact in issue. The fact that in so doing the husband was acting contrary to a clear order to this effect is also not a fact in issue. The wife’s assertion that she rented out the property because the husband wasn’t paying the mortgage is entirely plausible in the circumstances. In the wife’s Affidavit filed 23 November 2020, at paragraph 21, she sets out how she applied the rental payments from the former matrimonial home. She paid rent on alternative accommodation for the children and herself in the sum of $8,255 per month. Despite the husband’s contention that this rent was excessive, the Court believes it was not unreasonable in the circumstances given that the wife was living in the former matrimonial home which was rented out for over $19,000 a month. The wife deposes to paying the mortgage, about $10,000 per calendar month, property management fees in relation to the rental, and outgoings on both properties. In the husband’s own evidence (for example, his Affidavit of 23 December 2020 at paragraph 19) he himself acknowledges that he was responsible for paying a mortgage in the amount of about $10,000 per month, a payment that he himself describes as maintenance. Mortgage repayments can constitute spousal maintenance: see, eg. Riley & Riley (No. 2) [2014] FamCA 956; Holbert & Holbert (No.2) [2020] FamCA 601, and in the present circumstances, where the mortgage is for the former matrimonial home in which the wife and children continued to reside post-separation, the payments certainly have the character of maintenance. In the circumstances, the wife’s request is by no means inappropriate, and a declaration will be made to the effect that during the period that the former matrimonial home at Suburb E was rented out, and the wife received monthly rental, such rental be characterised as maintenance to her paid by the husband.
Order 7 sought by the wife relates to the P Pty Ltd stock option that vested to the benefit of the husband in November 2020. The wife contends that the husband received $80,000 and, doing the best the Court can to understand the wife’s order, that it should be the principal source of the funds to meet the husband’s obligation to her in relation to costs and mortgage arrears. The husband deals with this at paragraph 46 and 47 of his evidence. In short, he agrees that he received about $87,000 as a result of the vesting of 316 P Pty Ltd shares. He explains that all of this money was spent including on taxation (part of which was attributable to the shares vesting), school fees and textbooks, car service and green slip insurance, medical and dental, birthday presents for the children, general expenses including health insurance, groceries, Christmas presents and the children’s physiotherapy, and partial payment of $20,000 towards the outstanding costs order of $37,718 made by the Full Court. It was implicit in the wife’s case, and the Court accepts legitimately so, that at the time the husband received the $87,000, he prioritised a number of other payments over that of meeting his obligations to the wife pursuant to an outstanding costs order, as well as complying with orders to pay the mortgage. The issue of reasonable priorities is one in respect of which reasonable minds will differ. The question raised in the wife’s case is whether the husband had the capacity to meet these payments, or some of them, from his income, rather than having to apply capital in a way which meant the wife was not able to receive that which she was ordered to receive from him. Subject to the evidence, the assessment of the husband’s income and expenditure for this period will be examined below.
Order 8 sought by the wife was that the net sale proceeds of G Street be applied to the offset account on the mortgage over the former matrimonial home. The order proposed by the husband in relation to the sale proceeds of this property provides that, firstly, the mortgage over that property be paid, the sale expenses be paid, that money be set aside for provision for capital gains tax, and that the remaining funds are to be divided equally between the parties. The wife consents to the sale, but has a slightly different proposal in relation to the application of the net sale proceeds. It is by no means clear to the Court what amount, if any, is likely to be realised by way of net sale proceeds from this property. In the circumstances, the order that the Court will make will be, in effect, that unless the parties otherwise agree the net sale proceeds shall be held in a controlled monies trust account for the benefit of the parties, pending further order.
Order 9 proposed by the wife was that enforcement orders be set up relating to the payment of spousal maintenance. It is unclear what the wife meant by this order. It is not an order that the Court can make in its present terms without further particularisation as to the sum outstanding. One can understand the wife’s frustration about the husband’s non-compliance. Nonetheless, the order is not one that can be made.
Order 10 sought by the wife related to joint bank accounts held. The wife would like to know where they are, and would like the accounts closed. Senior counsel for the husband indicated that there was no objection in principle to such an order, provided there was an exception for a joint AG Bank account in the United Kingdom which was used to pay a mortgage, presumably on the G Street property. The order will therefore be to the effect that within 14 days the husband provide to the wife a list of all joint accounts held irrespective of location, and that both parties are to do all such things to close such accounts, with the exception of any account linked to and needed for the purposes of any mortgage liability of the parties. The parties are to divide between them as agreed the net proceeds upon the closure of any said joint account and failing agreement such amounts are to be paid, pending further order of the Court, into a controlled monies trust account.
Order 11 proposed by the wife in effect related to trial directions for a final hearing. Trial directions are of course necessary, but in circumstances where the wife foreshadowed that she would return to legal representation for the purposes of preparing for and conducting the hearing, it would be better if her lawyers could be involved in the formulation of such directions. That is the Court’s preference, but if that is not practicable from the wife’s perspective, given that directions should be made well in advance, other options may need to be explored.
The orders sought by the husband
Order 1 proposed by the husband is that the final hearing be expedited. The Court has done the best it can to achieve this.
Order 2 in effect required the wife to file a fully compliant Financial Statement within 14 days. The wife was representing herself in a complex matter. Whilst she presented to the Court as highly intelligent and articulate, and with a commanding grasp of the relevant assertions and facts, her Financial Statement was not compliant with the Family Law Rules, particularly regarding property disposed of. The wife would benefit from legal assistance in providing a further Financial Statement, but there seems little benefit in requiring her to file one in the near future. The Court would prefer to defer this issue until the making of trial directions.
Order 3 proposed by the husband required disclosure by the wife in relation to a number of specified matters. In submissions, the wife focused her concerns on order 3(c), requiring her to produce copies of all applications for employment made by her from 1 June 2016 to date. She regards this as intrusive and as facilitating the husband’s continued control of her life after separation. Whilst the Court understands the wife’s concerns, the failure to produce this evidence is ultimately counterproductive as the husband disputes her need for any form of spousal maintenance on the basis of her capacity to work. Order 3(c) will be made as sought by the husband, though the husband should be not be under misapprehension about the potential consequences for him if any information gleaned as a result of this litigation is misused outside the context of the litigation. The balance of order 3 will be made.
Order 4 was described as an order made out of abundant caution and only in the event that the former matrimonial home is once again rented out. In circumstances where the wife’s evidence is that her parents are paying the mortgage pending the final hearing, the possibility of the home being rented out is unlikely. Nonetheless, the order will be made out of abundant caution.
Order 5 is to the effect that any order that requires the husband to pay any mortgage or costs of maintaining the former matrimonial home be discharged from the date to which such have been paid by the husband. It is convenient to deal with order 8 in the present context as well. In order 8 the husband seeks an order to a similar effect in relation to spousal maintenance—that is, that such order be discharged from the date to which spousal maintenance is paid. Both orders require a detailed consideration of the husband’s evidence and contentions, and the wife’s evidence and counter-contention about his capacity to meet the obligations imposed upon him by various Court orders. The question of his capacity must necessarily commence from the time that these orders were last complied with, and thereafter continue to date. In this regard, the onus was on the husband, as the party seeking relief, to provide to the Court the financial information needed in order to make such an assessment. This will be discussed below.
Orders 6 and 7 were not pressed by the husband.
Order 9 is the husband’s proposed order for sale of the Suburb E property, and order 10 relates to the proceeds of the sale. As foreshadowed, the Court declines to make these orders.
The Full Court’s decision in Strahan & Strahan (interim property orders) [2009] FamCAFC 166 indicates that in making an interim property order the “overarching consideration” is the interests of justice: at [132]. The Court must be satisfied that in the circumstances it is appropriate to exercise the powers the Court undoubtedly has. Nonetheless, restraint and caution needs to be exercised in making an interim order relating to the sale of a property where one party seeks to retain the home: Furtado & Furtado [2011] FamCA 1018.
For their own reasons, the wife’s parents appear to have agreed to pay the mortgage of the former matrimonial home on an interim basis. The nature of this arrangement as between the wife and her parents is not clear. She contends that there is a loan arrangement, and that the monies provided must be paid back. How the provision of these funds by the wife’s parents should be characterised at a final hearing is unknown. The fact is that the husband is not having to pay the mortgage, and he asks the Court to discharge this order as at the date at which it stands paid.
In effect, it is the husband’s case that in no scenario would it be possible for the wife to retain the property, as part of her property settlement. The Court does not agree. With the provision of financial assistance from the wife’s parents it may well be possible for her to retain the property for the benefit of the children and herself. She should be given the opportunity to do so. There is no discernible prejudice to the husband in the circumstances that have emerged as a result of the payment of the mortgage from sources beyond the husband and wife. In any event, when the Court pressed Mr Lethbridge SC to explain the sum of $250,000 referred to at order 10(d), he could not explain the same. It was, with respect, a figure that seems to have been chosen on the basis that it is a “fair amount”. Notwithstanding this, that is not the basis for declining the husband’s order. Based on all the evidence, there is simply no need to sell the former matrimonial home at this time. The mortgage is being paid. Neither the husband nor wife are paying it. Whether or not there should be some form of adjustment, or impact on the alteration of property interests at a final hearing, is a matter to be determined at a final hearing.
Order 11 relates to the sale proceeds of G Street, and this has been discussed above. Order 12 also relates to G Street.
Order 13 deals with the sale of the husband’s interest in J Street, City H. The wife did not object to this order.
Order 14 requires the wife to provide to the husband an authority to renegotiate the private health insurance coverage with the existing provider, or an alternative provider in respect of both the wife and the children, provided the cover be at the same level or higher, but allowing for coverage changes to be more appropriate to the family’s circumstances. The wife has submitted that she found this order intrusive in the context of a longstanding health insurance policy that she has owned which included both the husband and the children. The husband deposes to paying this health insurance policy in the sum of $5,688 annually, currently. The husband believes that he can, in effect, “get a better deal”. Given that he is paying, the Court can see no reason why he should not be able to provide the wife a suitable alternative for her consideration. Apart from this, this is not an order that the Court is prepared to make on an interim basis, and it is unnecessary at this stage of the proceedings.
Order 15 requires the wife to file her taxation return for the 2019-20 financial year. She has agreed to do so within 28 days of receiving these reasons for judgment, on the basis of her expectation that the judgment will clarify whether the Court regards the rental payments that she received as income, or as spousal maintenance. The Court has already explained that it will order that it be treated as spousal maintenance. Order 15 will be made in its terms, but on the basis that the tax return be filed within 28 days of this judgment and the making of orders.
Order 16 proposes that any obligation or order requiring the husband to pay school fees and incidental costs of schooling stand discharged to the date to which such expenses, have been paid by the husband. This issue, like the similar issue of whether the husband should pay maintenance and mortgage payments, is ultimately decided by reference to his capacity to pay at the relevant time. The Court makes this observation. On one view, and possibly the view adopted by the wife in this case, the husband was seeking to absolve himself of all financial obligations towards the wife and children. From his perspective this order may have been predicated on the basis of the Court making the orders for sale that he proposed, with an interim distribution to the wife of $250,000. The wife can only receive this money once she and the children move out of the former matrimonial home. It is, with respect to the husband and those representing him, hardly surprising that the wife would so trenchantly oppose the orders that he has sought. The Court acknowledges that his evidence does contain representations to the effect that he would probably pay the school fees even if he were not required to do so. The basis, therefore, for the orders sought is unclear. The order will not be made.
The husband’s capacity to pay at relevant times
A number of broad impressions are formed from the material before the court. Between 2016 and 2020 the husband’s salary from his employment has consistently been about $330,000 per annum. There was a period when his income was reduced due to COVID-19, but this was reversed a short time later so that his income reduction is not relevant in the present context.
During the same period his bonuses have ranged from $63,000 to $79,000 per annum. The impact of taxation on his bonuses means that, in effect, he received about half of the gross sum.
The husband has, at least in notional terms, received the rent from the properties in England, but the material before the court suggests that after all expenses are paid, the surplus was used to pay premiums on certain life and critical illness insurance policies. This meant that the husband was not the beneficiary of any net rental income. The court observes that payment of these insurance policy premiums (approximately £10,000 per annum) was prioritised by the husband for as long as rent was being received. The husband’s evidence indicates that once the rent no longer covered the other expenses relating to the property, the insurance premiums were no longer paid, and allowed to lapse. The court infers that the husband re-prioritised payment of the insurance premiums. The wife was critical of the husband in prioritising the insurance premiums over his other commitments, including maintenance.
The only other source of income for the husband was by way of capital received through the divestment of P Pty Ltd shares received as part of his employment and then sold. It is not easy to calculate the total quantity of shares received and sold. In his Affidavit the husband accounts for each tranche of shares received and sold. He explains how, for example, the funds were used to pay school fees, taxation, his legal costs, the Suburb E mortgage, his own rental, Suburb E utilities and outgoings, and child support.
It is his case, in effect, that not only was all of his income from all sources applied in payment of his obligations pursuant to the orders made against him but, further, it was necessary to liquidate a range of assets in order to do so. The orders made by the Court, and concessions made by the wife, tend to indicate that this is correct. The very difficult issue for the Court is to quantify the arrears, and then conduct what is in effect a retrospective assessment of his capacity to pay, as well as assess the reasonableness of payments that could be argued by the wife to have been prioritised by the husband over his obligations to her, all without the benefit of cross-examination.
Unsurprisingly the wife has a completely different approach to that of the husband in assessing his capacity to pay. There are some methodological problems with the evidence that the wife gives in her affidavits on this issue. For example, she looks at the husband’s taxable income without taking into account income tax payable, as well as the tax on bonuses and his vested share options. She treats the husband as receiving all of the rental income from the properties in England, without taking into account mortgages, or other property related expenses. She is critical of the husband’s expenditure on legal fees, including, for example, for senior counsel, but ignores the husband’s evidence that he owes at least $119,000 by way of outstanding legal fees because he has not been able to pay the same out of income. The wife ignores the reality that some orders provide for liquidation of assets and use of capital in order to fund the living expenses of the family and herself.
Nonetheless, some of the concerns raised by the wife about the husband’s income and expenditure are legitimate. The issue of prioritisation of some expenses, including potentially his own legal expenses, over court-ordered maintenance obligations, is an important issue. In relation to taxation she quite legitimately raises concerns about not just the quantification of his alleged taxation liabilities, but the timing of when such payments are due. What can only be established at a final hearing, however, is whether at certain specified points of time the husband had, for example, income in respect of which taxation was notionally payable, but had not been assessed and was therefore not payable in fact until a later time.
Indeed, this exemplifies one of the great issues that the Court has in undertaking the present exercise. To simply assess the husband’s income and expenses on either a monthly or yearly basis does not properly account for the cashflow effect on his capacity to make the payments that he was ordered to make as at certain times.
Even if the evidence before the Court were complete, it still needs to be tested in order to form a conclusion about whether the obligations of the husband should be discharged as at the date they stand paid. In any event, one wonders about the utility of such an exercise, pending the final hearing when, amongst many other anticipated issues, there will be questions of add-backs of expenditure on legal fees, contribution-based arguments based on who-did-what-or-failed-to-do, as well as a more considered examination of the issue of prioritisation of certain payments over court ordered obligations.
Section 83 of the Act states:
(1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a)made by the court; or
(b)made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c)discharge the order if there is any just cause for so doing;
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e)revive wholly or in part an order suspended under paragraph (d); or
(f)subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court’s jurisdiction under subsection (1) may be exercised:
(a)in any case—in proceedings with respect to the maintenance of a party to the marriage; or
(b)if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or
(c)if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.
(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii)the circumstances of the person liable to make payments under the order have so changed; or
(iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;
as to justify its so doing;
(b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba)in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;
(c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3)Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.
(4)In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5)The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A)In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(6A)Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B)Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7)For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
Before the Court can modify the spousal maintenance orders it must be satisfied, amongst other things, that there is just cause for doing so, or circumstances have changed, or it is no longer proper or adequate. Even then, the Court’s power is discretionary. It would be unwise to do this on an interim basis. It would be unfair to the wife to, for example, discharge an obligation on the basis of untested and highly contested evidence. She should not be denied this opportunity. Conversely, from the husband’s perspective, he should not be left vulnerable to enforcement applications pending a final hearing.
The Court therefore will suspend but not discharge the husband’s obligations to pay maintenance and maintenance-type payments to the wife, and the wife will be restrained from commencing or continuing enforcement proceedings in this regard, pending final hearing. This will not affect the husband’s obligations to pay court ordered costs as well as financial obligations to, or for the benefit of his children.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 12 March 2021
SCHEDULE A
THE COURT ORDERS:
PROPERTY
1.That this application be listed urgently due to property sale and unpaid orders awarded by the full court which is now in default by almost 6 months
2.That within 7 days of making these orders that the husband pay the cost award of $37,100 determined by the appeal board – EEA…/2019 held 21st May 2020 which defaulted on 16th July 2020.
2.1.That the husband also pay interest on outstanding balance from unpaid cost award. Interest charges on loan to be provided to the court by the wife from the period June 2020 – date the outstanding balance has been paid.
3.That within 7 days of making these orders the husband pay the arrears caused on the arrears mortgage of the matrimonial property at D Street between March 2019 – December 2019 ($32,491), while the husband was under order to pay the mortgage.
4.That within 48 hours of these orders the husband provides the wife with complete copies of the tax returns for the ATO and inland revenue since 2015.
5.That within 48 hours of these orders the husband shall provide the wife wth copies of the group certificates which were not supplied either by his employer (P Pty Ltd – Ms UU) nor himself, both persons were requested this information under subpoena.
6.That any money received as a result of the renting out of D Street be classified as spouse maintenance.
7.The $80,000 AUD P Pty Ltd stock options that vested in November 2020 be applied per judges determination. Set up as a 3rd Party debt notice for payment. a/c # …52, bsb …
Outstanding cost award - $37,100
Arrears from mortgage from 2019 - $32,4918.G Street property – Mr Gresham will have 98,010 pound sterling ($176,000) from the sale. To be applied to offset account of the mortgage on the matrimonial property
9.Enforcement orders set up relating to the payment of spouse maintenance
10.That within 5 days of the orders, a list of all joint bank accounts from around the world are to be provided to the wife so they can be closed.
11.For a date to be set for the final hearing, # of days required, size of affidavits and tender bundles to be agreed
SCHEDULE B
SCHEDULE "1"
FAMILY COURT OF AUSTRALIA
SYC 7914/2016
Gresham and Gresham
HUSBAND'S SHORT MINUTE OF ORDERS SOUGHT
Applicant Wife: Ms Gresham
Respondent Husband: Mr Gresham
1. That the final hearing of the Application and Response be expedited.
2 . That in the event that the Applicant Wife does not file a Financial Statement as part of her Response to this Application then within 14 days of the date of these Orders the Applicant Wife file a Financial Statement setting out her income, expenditure, assets and liabilities.
3. That within 14 days of the date of these Orders the Applicant Wife provide to the Respondent Husband the following:
a. Copy of all rental statements and receipts for rent received in respect of the property at D Street, Suburb E from the date of the commencement of the Lease in respect of the property at D Street, Suburb E and to date;
b. Copies of all Notices for rates, utilities, insurance and other outgoings in respect of D Street, Suburb E from the date of the commencement of the lease in respect of the property at D Street, Suburb E and to date any and all proof of payment;
c. Copy of all Applications for Employment made by the Applicant Wife from 1 June 2016 to date;
d. Copy of all Applications for finance or re-finance made by the Applicant Wife in respect of the property at D Street, Suburb E made by the Applicant Wife from 1 June 2016 and to date;
e. Copy of all statements in respect of bank accounts held and or operated by the Applicant Wife from 1 July 2019 to date including but not limited to the following bank account statements:
i. Westpac Bank Choice Account ending ...64.
ii. Westpac Bank Choice Account ending ...38.
iii. Westpac Bank eSaver Account ending ...82 .
iv. WW Bank Cheque Account ending ...36 .
v. ANZ Access Account (BSB ...).
vi. XX Bank (City H) Account- ...34
vii. Account or accounts into which rent received for D Street Suburb E is deposited.
4 . That within 14 days of the date of these Orders the Applicant Wife direct the managing agent for the rental of the property at D Street, Suburb E to provide to the Respondent Husband and continue to provide to the Respondent Husband for the duration of any lease of the said property or an extension of the existing lease of the said property all communications in relation to payment of rent, rent receipts and management of the property.
5. That to the extent that any Order requires the Husband to pay any mortgage payment or costs of maintaining the property at D Street, Suburb E that those Orders be discharged from the date to which they have been paid by the Husband.
6. That any Order of the Orders of 11 October 2019 requiring the Husband to make any contribution to payment of the cost of compliance in respect of the swimming pool at D Street, Suburb E be discharged.
7. That the Applicant Wife be restrained and is hereby restrained from reoccupying the property at D Street, Suburb E without the consent of the Husband in writing or Order of the Court.
8. To the extent that the Orders made by Justice McLelland on 20 December 2018 provide for payment by the husband to the wife of spousal maintenance that those Orders be discharged from the date to which they stand paid.
9. That within 14 days of the date of these Orders the parties do all acts and things and sign all documents necessary so as to effect a sale of the Suburb E property, in the State of New South Wales being the land comprised in Certificate of Title Folio Identifier … ("the Property") for the best price reasonably available in the following manner:
a. List the property for sale by public auction within two (2) months from the date of these Orders or at such later time as the parties may agree in writing with such agent as the parties may agree to appoint and in default of agreement as to Agent within fourteen (14) days of the date of these Orders then such agent as the President of the Real Estate Institute of New South Wales shall appoint ("the Agent") the costs of and incidental to such appointment be borne equally by the parties as and when same fall due;
b. The reserve price for the purposes of such auction shall be $6,850,000 or such price as may be mutually agreed upon by the parties or, in the absence of an agreement reached within fourteen (14) days of the date of these Orders shall be the price nominated as the fair market value thereof by AB Pty Ltd the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when same fall due;
c. In the event that the bidding at the auction does not reach the reserve price the parties or such of them as attended the auction may negotiate with the highest bidder or any other interested person and effect a sale of the Property at a price which is not more than 15% below the reserve price or at such other price as the parties agree upon writing.
d. If the Property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the Property for sale by public auction again, on a date nominated by the said Agent and at such auction there shall be no reserve price unless otherwise agreed by the parties in writing;
e . The parties shall cooperate in every way with the Agent including (without limiting the generality of the forgoing):
i. Making the key available to the Agent;
ii. Allowing inspection of the Property at all reasonable times requested by the Agent;
iii. Doing or saying nothing to hinder or prevent a sale being effected;
iv. Ensuring the property including the grounds are in neat and clean condition at the time of inspection by the Agent and prospective purchasers;
v. Signing all documents requested by the Agents in relation to the listing for sale of the Property except a Contract or Agreement for sale which has not been authorised by the parties' solicitors.
f. The parties shall instruct ZZ Lawyers as solicitor to act on the conveyance of the property or alternative as mutually agreed by the parties. Failing agreement within a period of seven (7) days the parties shall accept the nomination of a solicitor as appointed by the President for the time being of the Law Society of New South Wales;
g. The parties shall each execute a Contract for Sale in the form prepared by solicitors having the conduct of the sale at the sale price;
h. Neither party may confer on any Agent without the consent of the other party any right to any sole or exclusive agency in respect of the Property or to any commission;
i. If one party is occupying the property pursuant to the consent of the other party or by Order of the Court the party not in occupation shall be entitled upon reasonable notice once per fortnight to enter review the state of repair of the Property ;
j. If the Agent shall certify in writing to the parties' solicitors it is reasonably necessary for work specified in such notice to be carried out to the Property so as to assist in effecting sale and provided the costs of any such work is less than $1,000 either party may cause such work to be carried out and the costs thereof shall be borne by the party who elects to proceed with the work.
10. That the proceeds of sale of the property at D Street, Suburb E NSW be applied as follows:
a. In payment of any mortgage over the property;
b. In payment of the costs of sale including agents commission;
c. In payment to the Applicant Wife the sum of $37,178.41;
d. The sum of $250,000 to each party by way of interim partial property settlement;
e. The balance to be invested in an interest earning account in the name of both parties pending final determination of the matter by the Court or upon settlement of the matter and or approval by the Court of Consent Orders.
11. That within 14 days of the date of these Orders the parties do all acts and things and sign all documents necessary so as to effect a sale of G Street property ("the Property") for the best price reasonably available in the following manner:
a. Both parties having already signed a document of appointment of TT Agents as selling agent, the Wife Applicant provide TT Agents with the required documentation of proof of identity to enable the listing of the property;
b. The reserve price for the purposes of sale shall be GBP 420,000 or such price as may be mutually agreed upon by the parties;
c. The parties shall cooperate in every way with the Agent;
d. Authority is granted for the agent to negotiate with a potential purchaser at a price not less than 85% of the reserve price. Or at such other price as the parties agree upon writing;
e. The parties shall each execute a Contract for Sale in the form prepared by solicitors having the conduct of the sale at the sale price;
f. ·The parties shall instruct VV Pty Ltd as solicitor to act on the conveyance of the property or alternative as mutually agreed by the parties;
g. Neither party may confer on any Agent without the consent of the other party any right to any sole or exclusive agency in respect of the Property or to any commission;
h. If the Agent shall certify in writing to the parties' solicitors it is reasonably necessary for work specified in such notice to be carried out to the Property so as to assist in effecting sale and provided the costs of any such work is less than GBP1,000 either party may cause such work to be carried out and the costs thereof shall be borne by the party who elects to proceed with the work.
12. That the proceeds of sale of the G Street, City H be applied as follows:
a. In payment of any mortgage over the property;
b. In payment of the costs of sale including agents commission;
c. As at 50% nett of the payments required by (a) and (b) above to be paid into a Joint UK bank account, and to be used for payment of any capital gains tax that may be payable by either or both of the parties both parties and in payment of any costs of the determination of the amount of Capital Gains Tax payable and of any costs incurred in the making of that payment and upon payment of any Capital Gains Tax and for payment of any other costs associated with the property as may be at that time outstanding any surplus shall be paid to the parties in equal shares;
d. As to 50% nett of (a) and (b) are to be divided equally divided between the parties.
13. That in the event that the husband and his co-owner sell the property at J Street, City H then the husband's share of the proceeds of sale of the J Street property be applied as follows:
a. In payment of the husband's share of costs of sale including agent's commission;
b. As at 50% nett of the payment required by (a) above to be to be paid into a Joint UK bank account, and to be used for payment of any capital gains tax that may be payable by the husband and in payment of any costs of the determination of the amount of Capital Gains Tax payable and of any costs incurred in the making of that payment and upon payment of any Capital Gains Tax and for payment of any other costs associated with the property as may be at that time outstanding any surplus shall be paid to the parties in equal shares;
c. As to 50% to be divided equally divided between the parties.
14. That the Wife provide the Husband with all authority to renegotiate the private health insurance coverage, with the existing provider AF Insurance or another alternative provider, in respect of the Applicant Wife and the children. Cover to be to the same level or a higher level as the current policy, but allowing coverage changes to be more appropriate to the family circumstances/ages.
15. That the Applicant Wife, if she has not already done so, file her Individual Income Tax Return for the 2019-2020 year within 28 days of the date of these Orders.
16. That to the extent that any Order requires the Husband to pay school fees and any incidental costs of schooling, including but not limited to uniforms, extracurricular activities and equipment, that the Order be discharged to the date to which the fees and other expenses have been paid by the Husband.
17. That the Applicant Wife pay the Respondent Husband's costs of and incidental to this Application.
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