H and H (No.2)
[2003] FMCAfam 98
•9 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H (No.2) | [2003] FMCAfam 98 |
| PROPERTY – Supplementary reasons and orders. |
| Applicant: | J M H |
| Respondent: | S-A M H |
| File No: | DNM 2065 of 2002 |
| Delivered on: | 9 May 2003 |
| Delivered at: | Darwin |
| Hearing date: | 7 May 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M Biesse |
| Solicitors for the Applicant: | Povey Stirk |
| Counsel for the Respondent: | Ms S Gearin |
| Solicitors for the Respondent: | Collier Deane |
ORDERS
That within 30 days of today’s date the husband pay to the wife the sum of $145,906.62.
That contemporaneously with order 1 hereof:
(a)The wife do all such acts and things, and sign all such documents as may be required to transfer to the husband at his expense all of her right title and interest in the real property situated at and known as 5 C C, A S and the husband indemnify the wife against all payments and liabilities pursuant to the mortgage and all rates, taxes and outgoings in respect of the real property of whatsoever nature and kind;
(b)The wife do all such acts and things, and sign all such documents as may be required to transfer to the husband at his expense all of her right title and interest in the real property situated at and known as 38 E S, A S and the husband indemnify the wife against all payments and liabilities pursuant to the mortgage and all rates, taxes and outgoings in respect of the real property of whatsoever nature and kind;
(c)The wife do all such acts and things, and sign all such documents as may be required to resign as a director of D D Pty. Ltd.
(d)That the husband do indemnify the wife in respect of all or any liability of her in respect of the said company including any liability of the company to the Commissioner of Taxation, and in particular the husband re-finance the business overdraft with the Westpac Banking Corporation so that he is solely liable for the overdraft;
(e)That all documentation required to be executed by the wife to give effect to these orders be prepared by the husband’s solicitors at his expense.
(f)The husband indemnify the wife in respect of all liability that she may have to pay tax arising from income distributed to her by way of rental arising from 38 E S in the financial year ending
30 June, 2002 and any subsequent year thereafter.That in default of the payment as set out in order 1 hereof, the real property registered in the joint names of the parties be sold and the husband and wife do forthwith do all acts and things and sign all necessary documents to effect the sale of the said property and in order to effect such sale the following provisions apply:
(a)The listing price for the real property shall be as agreed between the parties and if there is no agreement the listing price shall be as advised by a Valuer agreed by the parties or failing agreement as nominated by the President of the Real Estate Institute of the Northern Territory;
(b)The real property shall be listed for sale by private treaty with Ray White Real Estate;
(c)That in the event the real property has not been sold by or before a date three (3) months from the date of default of the payment then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the real property upon the following terms:
(i)The auctioneer shall be as recommended by Ray White Real Estate;
(ii)The auction shall take place by four (4) months after the deadline date for sale by private treaty;
(iii)The reserve price shall unless agreed upon by the parties be as proposed by the auctioneer;
(iv)The husband shall pay and be responsible for payment of the auction expenses payable before the real property is auctioned.
(d)In the event that the property is not so sold by auction or by private negotiation within fourteen (14) days after the said auction then the husband and the wife do all acts and sign all documents and the husband shall pay all moneys necessary to procure a second auction within a further five (5) weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
(e)That pending the completion of the sale, the husband have the sole right to occupy the real property and during such right of occupation pay all instalments pursuant to the mortgage and all rates and taxes and outgoings of the real property as they fall due.
That upon completion of the sale the proceeds be applied as follows:
(a)Firstly, to pay the wife a sum of monies which is the difference between whatever the husband has paid from re-financing pursuant to order 2 and $145,906.62 together with any additional interest payable such interest to be calculated to the day the monies are available for payment;
(b)Secondly, to pay all costs, commissions and expenses of the sale;
(c)Thirdly, to discharge the mortgage and other encumbrances affecting the real property.
That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the position of such party as at this date;
(b)Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)All insurance policies to become the sole property of the beneficiary named thereunder;
(d)Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)The husband and wife each pay all credit card debts standing in their respective names and indemnify the other in respect of such debts.
That pending the wife’s relocation to A S that she have telephone contact to the children of the marriage each Wednesday and Sunday between the hours of 6.30pm and 8.00pm (Central Standard Time).
That all applications be otherwise dismissed.
That the time for the parties to lodge an appeal in respect of these orders and the orders made on the 4th of April, 2003 be extended to the 6th of June 2003.
That all documents tendered to the Court be returned to the solicitor for the party that tendered such document when 28 days from today’s date has expired and in the event that no appeal has been lodged by either party.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2065 of 2002
| J M H |
Applicant
And
| S-A M H |
Respondent
SUPPLEMENTARY REASONS FOR JUDGMENT
On the 4th of April 2003, I delivered judgment in this matter. On that date the proceedings were adjourned until the 7th of May 2003, in order to allow the husband time to consider how he would meet the judgment of the Court and pay to the wife the sum of $145,906.62, which he had been ordered to pay in settlement of the parties’ competing claims for property settlement.
When the matter came before the Court on the 7th of May, 2003, the husband’s solicitor advised the Court that his client was able to raise the required sum and it would not be necessary for him to sell any of the parties’ matrimonial assets. However, it is still necessary for consequential orders to be made to finalise the proceedings between the parties. It will be necessary for formal orders to be made dividing responsibility for various debts between them and for the formal transfer of the various properties, which have been the subject of these proceedings.
As a result of the determination made by me on the 4th of April 2003, the wife retains responsibility for 5 credit card debts standing in her name. Through her counsel, the wife seeks to receive a sum equivalent to the interest that has accrued on these debts between the date of the orders and now. The wife is not able to quantify the amount of the additional interest that has accrued. In my view, given the circumstances that gave rise to those debts, it is not appropriate to make such an order.
The wife also seeks an order that the husband indemnify her in respect of taxation liabilities that will accrue to her as a result of rental income nominally distributed to her, from the parties’ commercial premises in E S. The wife has received none of this income, which was used by the husband to reduce the parties’ joint liability in respect of mortgages that related to this property. In my view, given this debt related to the parties business, which the husband has been running since the parties separated and the wife has received none of the income from the property, it is appropriate that the order that the wife seeks should be made.
As might be expected, the orders that were made on the 4th of April, 2003 have exacerbated existing tensions between the parties. I am advised that the wife plans to return to A S as soon as she has been paid the monies due to her under these orders. This is likely to be within 30 days. She complains that she has had difficulty having telephone contact with the children concerned. In my reasons for judgment, I found that she had gone to some lengths to stay in contact with the children by telephone, whilst she was living in Q. The husband complains that the wife’s daily and lengthy telephone conversations with the children are disruptive. He does not believe that it is therefore appropriate that an order be made for daily telephone contact in the period until the wife returns to A S. I agree with this submission. I will make orders that the wife have telephone contact with the two children concerned pending her return to A S on each Wednesday and Sunday between the hours of 6.30pm and 8.00pm. The orders will apply to a short period of time.
The wife also seeks that I make an order restraining the husband from making denigratory comments to the children about her regarding the consequences of the orders in this matter for him. This was not the result of any formal application by the wife and as a result has not been formally responded to by the husband. In all the circumstances of this case, I decline to make such an order.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Brown FM
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