Hale & Mara
[2021] FedCFamC2F 385
•16 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hale & Mara [2021] FedCFamC2F 385
File number(s): BRC 5438 of 2020 Judgment of: JUDGE L TURNER Date of judgment: 16 November 2021 Catchwords: FAMILY LAW – property – interim – issue over property, valuations and exclusive use – held valuations be conducted prior to final hearing, parties have exclusive use of properties in which they currently reside – wife not to sell property in her name – matter to proceed to a final hearing Cases cited: Baghti & Baghti [2015] Fam CAFC 71 Division: Division 2 Family Law Number of paragraphs: 29 Date of last submission/s: 11 November 2021 Date of hearing: 9 November 2021 Place: Brisbane Solicitor for the Applicant: Mr Hunter of Darren Hunter Solicitor Solicitor for the Respondent: Mr Hunter of David Hunter Solicitor ORDERS
BRC 5438 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALE
Applicant
AND: MS MARA
Respondent
ORDER MADE BY:
JUDGE L. TURNER
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS BY WAY OF PROPERTY ORDER THAT:
1.Pursuant to Division 7.1.2 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that by August 2022 a Court Expert be appointed in this matter to inspect and to report as to the current market value of the real properties are situated at:
(a)B Street, Town C in the State of New South Wales.
(b)D Street, Town C in the State of New South Wales.
2.The Court Expert is to be a person to be agreed upon between the parties and failing agreement as appointed by the President of the Real Estate Institute of New South Wales.
3.The parties share equally in the costs of the valuation.
4.By August 2022 the parties obtain an updated valuation of the business interests including trusts held by the parties with the parties to share equally in the costs of the updated valuation.
5.Ms Mara have sole and exclusive occupation of the granny flat at D Street, Town C.
6.Mr Hale have sole and exclusive occupation of B Street, Town C.
7.Mr Hale not be permitted, without the written consent of Ms Mara, to rent or let B Street, Town C during his time overseas in November/December 2021.
8.In the event that B Street, Town C is rented or let during Mr Hale’s time overseas then all rental is to applied to the mortgage over B Street, Town C.
9.Ms Mara is hereby restrained by injunction from:
(a)Entering the property at B Street, Town C during Mr Hale’s time overseas in November/December 2021 unless otherwise agreed to in writing by Mr Hale.
(b)Taking any steps or signing any documents to transfer, list for sale, encumber, sell or otherwise dispose of B Street, Town C.
10.Leave of the court is required before any further interim applications are filed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hale & Mara has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE L. TURNER:
INTRODUCTION
The parties are in dispute as to a de facto property division after a relationship of some 12 years.
For the sake of convenience only in delivering this judgment on interim issues the applicant is referred to as the husband and the respondent is referred to as the wife.
An interim hearing has already occurred in this matter where after delivery of judgment, interim orders were made in June 2021 as to the parties contributing equally to the mortgage repayments for B Street, Town C (B Street, Town C) and D Street, Town C (D Street, Town C), the wife receiving the rental from D Street, Town C and being responsible for insurance and outgoing on D Street, Town C and the husband being responsible for the insurance any outgoings on B Street, Town C).
In November 2021 the husband filed an application in a case seeking orders whereby:
(a)The matter be heard urgently.
(b)The wife be restrained from transferring selling or otherwise disposing of B Street, Town C.
(c)The husband have sole and exclusive occupation of B Street, Town C with the wife being restrained from entering B Street, Town C.
(d)Valuations with costs to be shared equally take place of B Street, Town C and D Street, Town C.
(e)An updated valuation be obtained for the business interests of the parties.
On 9 November 2021 the matter proceeded to interim hearing.
PROPOSALS
Husband
The husband seeks the following by way of interim orders:
(a)The wife be restrained from transferring selling or otherwise disposing of B Street, Town C.
(b)The husband have sole and exclusive occupation of B Street, Town C with the wife being restrained from entering B Street, Town C.
(c)Valuations with costs to be shared equally take place of B Street, Town C and D Street, Town C.
(d)An updated valuation be obtained for the business interests of the parties.
Wife
The wife seeks the following by way of interim orders:
(a)The husband’s application be dismissed.
ISSUES
The issues for determination are whether any orders are to be made in accordance with the husband’s application in a case.
EVIDENCE
In considering the issues regard has been had to:
(a)The relevant filed material on the digital file.
(b)The previous judgment.
(c)The previous orders.
(d)The written submissions of the parties.
(e)Relevant legislation.
(f)Relevant authorities.
Regard has not been had to the husband’s affidavit filed on 11 November 2021 which was filed after the interim hearing was conducted.
The parties are legally represented.
Cross-examination did not occur with the matter being determined on written material only.
The submissions of the parties have been properly considered in reaching a determination although each submission may not have been specifically addressed or responded to in the judgment (Baghti & Baghti [2015] Fam CAFC 71).
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Before considering the issues is useful to capture what is happened since June 2021 which has brought about the urgent application filed by the husband
BRIEF BACKGROUND
As of June 2021:
(a)The parties had been in a de facto relationship for approximately 12 years where during the relationship:
(i)X and Y were born.
(ii)The parties acquired B Street, Town C in the name of the wife and D Street, Town C in the joint names of the husband and wife.
(b)The parties had been separated since October 2018.
(c)Initially the wife and children remained at B Street, Town C but after 6 months the wife moved into the granny flat at D Street, Town C and the husband moved into B Street, Town C.
(d)Since separation the husband has had exclusive occupation of B Street, Town C with the wife living in a granny flat attached to D Street, Town C.
(e)Property proceedings were commenced by the wife in May 2020.
(f)In July 2020 comprehensive interim property orders were made by consent as to the valuation of assets with costs to be shared equally and for disclosure.
(g)In August 2020 a valuation was obtained of the business and trust.
Pursuant to the interim orders made on 4 June 2021 the parties were directed to attend a conciliation conference before a Registrar on 2 September 2021.
The conciliation conference was unsuccessful and on 15 September 2021 the matter was set down for a final hearing for not more than 2 days.
The matter has now been set down for a reserve two-day final hearing on 7 and 8 September 2022.
The husband in his supporting affidavit to the application in a case states:
(a)The husband has received a threat from the wife that she will sell B Street, Town C [2].
(b)The husband intends to travel overseas for 7 weeks from 15 November 2021 [3].
(c)The husband has concerns about the wife moving into B Street, Town C whilst the husband is away [4].
(d)The wife has indicated to the husband via her solicitor’s letter on 4 November 2021 that the wife will arrange for B Street, Town C to be sold during the husband’s absence overseas [Annexure].
(e)It is the husband’s intention to retain B Street, Town C in the property settlement and obtain any necessary loans [9] to [12].
(f)The husband has advertised B Street, Town C for let during his time overseas [13].
(g)The parties had previously agreed to the values of B Street, Town C and D Street, Town C [18].
(h)Just prior to the conciliation conference the wife informed the husband that she no longer agreed to the values [21].
(i)The husband has sought to have the property is valued and for an updated valuation of the businesses but with no success [24].
The wife did not file a response.
In an affidavit filed the day prior to the interim hearing the wife states:
(a)The wife requested of the husband that she would like to live at B Street, Town C during his time overseas and that she would like to return to live at B Street, Town C pending the final hearing [13].
(b)The husband has no proprietary rights to B Street, Town C which is only in the wife’s name [14].
(c)The wife has asked the husband to silently list both properties to ascertain the true current value [18].
(d)A sale will not be made without the husband’s consent [19].
(e)To obtain a valuation now would be a waste as it would need to be redone closer to the trial date [30].
(f)The wife had not been consulted about the husband renting out B Street, Town C whilst the husband was overseas [32].
WHAT INTERIM ORDERS ARE TO BE MADE?
I made comment in my last judgment that “it appears that the parties have not tried to sort this matter out” ([21] Reasons for Judgment).
Nothing much has changed.
The continued animosity, fuelled by legal representatives, is only achieving one thing - the incurring of significant legal costs by both parties.
It is a shame that the parties choose not to better utilise their funds to try and achieve a settlement of this matter rather than continue in this ongoing toxicity and gameplay.
The matter now has a final hearing date.
In order to preserve the property pool and to ensure that the matter is ready for final hearing in September 2022, I find that it is appropriate, and in the absence of any formal application otherwise by the wife, for the following orders to be made on an interim basis:
(a)The husband have exclusive occupation of B Street, Town C.
(b)The wife not be permitted to occupy B Street, Town C during the husband’s overseas trip in November/December 2021.
(c)The husband not be permitted to let or rent B Street, Town C during the husband’s overseas trip in November/December 2021 unless otherwise agreed to in writing between the parties in which case all of the rental is to be applied to the mortgage over B Street, Town C.
(d)The wife have exclusive occupation of the granny flat at D Street, Town C.
(e)The wife be restrained from transferring selling or otherwise disposing of B Street, Town C unless otherwise agreed to in writing between the parties or by way of court order.
(f)The parties obtain by August 2022 for the purpose of the final hearing updated valuations, with costs to be shared equally, of the business and trust.
(g)The parties obtain by August 2022 for the purposes of the final hearing valuations, with a cost to be shared equally, of B Street, Town C and D Street, Town C.
(h)Leave of the court is required before any further interim applications are made.
As to the issue of costs, this is an issue which can be determined over all should the matter proceed to a final hearing and a costs application is made.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge L. Turner. Associate:
Dated: 16 November 2021
0
0
0