FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harrell & Lowe [2024] FedCFamC2F 1182
File number(s): BRC 13187 of 2022 Judgment of: JUDGE KEARNEY Date of judgment: 2 September 2024 Catchwords: FAMILY LAW – Parenting and Property orders – 9-year-old subject child – where the father has been inconsistent with complying with spend time with orders – history of family violence – where the mother seeks sole parental responsibility and conditions subsequent should the father fail to spend time with child –– where the father seeks to jointly make decisions – where the father seeks to amend child’s name to include his last name – property adjustment orders – where a global approach is taken – where there is a stark financial disparity between the parties – where the mother seeks a property adjustment reflective of the impact of family violence and there being no prospect of the payment of child support – adjustment of 60% of property pool in favour of the mother Legislation:
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) Parts VII and VIIIAB; ss 4AA; 60CC; 90RD; 90SB; 90SF(3); 90SM(3)(e), (4)(d), (e) & (f)
Cases cited:
AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134; (2005) FLC ¶93-219
Benson & Drury [2020] FamCAFC 303
Best & Best [1993] FamCA 107; (1993) 16 Fam LR 937
Bevan & Bevan [2013] FamCAFC 116; (2013) 49 Fam LR 387
Hobson & Hobson [2020] FamCAFC 251; (2020) 61 Fam LR 557
In the Marriage of Robb and Robb [1994] FamCA 136
In the Marriage of Townsend [1994] FamCA 144 at 81,654; (1994) 18 Fam LR 505
In the Marriage of Weir & Weir (1992) 16 Fam LR 154
Jonah v White [2012] FamCAFC 200; (2012) 48 Fam LR 562
Keating & Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158
Kennon & Kennon (1997) FLC ¶92-757; (1997) 22 Fam LR 1
Koch & Kest [2021] FamCA 408
Lotta & Lotta [2017] FamCA 50
Mahoub & Ferrante [2013] FamCA 905
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; (1986) 10 Fam LR 819
Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108; (2012) 47 Fam LR 481
Watson & Ling [2013] FamCA 57 at [35]; (2013) 52 Fam LR 79
Zaruba & Zaruba [2017] FamCAFC 91
Division: Division 2 Family Law Number of paragraphs: 166 Date of hearing: 15-16 July 2024 Place: Brisbane Counsel for the Applicant: Mr Larsen Solicitor for the Applicant: Rosen Lawyers Counsel for the Respondent: Ms Fraser Solicitor for the Respondent: Sambanis Family Law ORDERS
BRC 13187 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HARRELL
Applicant
AND: MS LOWE
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
2 SEPTEMBER 2024
THE COURT DECLARES THAT:
I.Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (‘the Act’):
(a)The applicant, MR HARRELL (‘the father’)…
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CaseChat Overview and Summary
The court found that the mother should have sole decision-making responsibility for major long-term issues concerning the child, with specific requirements for notifying and considering the father’s views. Conditions were set for the nullification of certain parenting orders if the father failed to comply with spending time orders. Regarding property adjustment, the court determined a 60:40 split in favor of the mother, taking into account the father's addback and the mother's argument against future child support payments. The court mandated specific steps for the sale of the family home, B Street, ensuring that the mother's share of the proceeds was prioritized. The father was also required to indemnify the mother for liabilities related to him or his business. The court confirmed final orders made on 15 July 2024 and provided detailed instructions for the sale process and disbursement of sale proceeds.
The court's reasoning emphasized the need for a fair and just outcome considering the unique circumstances of the case, including the history of family violence and the financial implications for both parties. The outcome balanced the need for the mother to have stability and control over major decisions concerning the child with the father's rights to remain involved, subject to his compliance with court-ordered time schedules. The financial disparity and the mother's stance against future child support were pivotal in the property adjustment decision.
Orders
Orders of the court
BRC 13187 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HARRELL
Applicant
AND:
MS LOWE
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
2 SEPTEMBER 2024
THE COURT DECLARES THAT:
I. Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (‘the Act’):
(a) The applicant, MR HARRELL (‘the father’) and the respondent, MS LOWE (‘the mother’) were in a de facto relationship for more than two (2) years for the purposes of s 90SB(a),
(b) The de facto relationship ended in August 2021,
(c) The parties made substantial contributions to their property,
(d) There is a child of the relationship, and
(e) A failure to make an Order pursuant to s 90SM and/or a declaration pursuant to s 90SL would result in serious injustice to the parties.
II. Pursuant to s 90RD(1) of the Act and for the purposes of s 90SK:
(a) The father was ordinarily a resident in a participating jurisdiction (namely the State of Queensland) at the time when the application for orders under s 90SM was made, and
(b) Both parties were ordinarily residents of the State of Queensland during at least one-third of the de facto relationship.
III. The sum of $25,000 drawn down from a loan account secured by mortgage over title to the real property and improvements comprising Lot […] Survey Plan […] on title reference […], being the property known as B Street, Town C in the State of Queensland (‘B Street’) be deemed monies had and received by the father by way of premature distribution (‘the father’s addback’).
THE COURT ORDERS THAT:
PARENTING
Parental responsibility
1. The mother shall have sole decision-making responsibility for all major long-term issues about X born in 2015.
2. In the exercise of her sole decision-making responsibility in relation to X as set out in Order 1, the mother shall:
(a) Notify the father in writing at least fourteen (14) days prior to the making of a decision related to X’s education, health, name and/or living arrangements, and
(b) Invite the father to indicate his views in writing within seven (7) days of such notice being given to him, and
(c) Take the father’s views into account when making such a decision, and
(d) Notify the father of in writing of her decision within seven (7) days of making the decision.
Conditions subsequent should the father fail to spend time with X
3. If the father fails to spend time with X for a period of six months (or more) as is prescribed within Order 9.a. and 10 made by the Court on 15 July 2024 (‘the final consent orders’), THEN those orders will no longer have any force and effect and shall be discharged forthwith.
4. If on any two (2) occasions during the operation of these Orders, the father forfeits the school holiday time that X is otherwise due to spend with him in accordance with Order 10 of the final consent orders, THEN Order 10 will no longer have any force and effect and X shall only spend time with the father as prescribed within Order 9 of the final consent order.
5. In the event of Order 3 and/or 4 being triggered, any future time between the father and X shall be as agreed in writing between the parties.
Confirmation of final orders made 15 July 2024
6. Orders 1, 4 to 8 and 9 to 21 made on 15 July 2024 are confirmed and should be read in conjunction with Orders 1 to 5 above.
PROPERTY ADJUSTMENT
Restraint on the father
7. Until such time as the father complies with Order 9 or B Street is sold pursuant to these Orders, the father is restrained, and an injunction shall issue prohibiting him from taking any steps to sell, transfer, lease, mortgage or in any way encumber, partition, subdivide or otherwise deal with B Street without the mother’s written consent.
8. Until such time as the father complies with Order 9 or B Street is sold pursuant to these Orders, the father is mandated, and an injunction shall issue requiring him to make (and keep up-to-date) all payments for the mortgage, council rates, insurance premiums and utilities failing which, in the first instance such expenses shall be paid at settlement (as may be required) and/or reimbursed to any third party who makes those payments on his behalf PROVIDED THAT ultimately, any such payments shall be deducted from the father’s share of the sale proceeds.
Cash payment to the mother
9. By 4:00pm on Friday 11 October 2024, the father is to pay the mother $736,300 (as may be directed in writing by the mother).
Sale of B Street
By private treaty
10. If the mother does not receive payment in accordance with Order 9, THEN by Friday 25 October 2024, B Street shall be listed for sale by private treaty, with the parties jointly appointed trustees for that purpose.
11. To facilitate the listing for sale by way of private treaty of B Street, and unless otherwise agreed upon in writing by the parties:
(a) By 12 noon Tuesday 15 October 2024, the mother shall electronically provide the father with a panel of three proposed real estate agents and three proposed solicitor/conveyancer including their costs of engagement,
(b) By 12 noon Thursday 17 October 2024, the father shall electronically inform the mother of his preferred nominees FAILING WHICH the mother shall forthwith unilaterally nominate and appoint one of the agents and one of the solicitors/conveyancers from the panel who shall be now be described respectively as ‘the listing agent’ and ‘the conveyancer’,
(c) By Tuesday 22 October 2024, the list/reserve price for B Street shall be as agreed in writing between the parties (‘the list price’) FAILING WHICH the list price shall be as nominated by the listing agent.
12. To facilitate the private treaty sale of B Street -
(a) The parties shall co-operate in every way with the listing agent in relation to the marketing of B Street for sale and in this regard the father shall be solely responsible for communicating with the listing agent as the sole point of contact to always organise inspections of the property reasonably requested by the listing agent,
(b) The father shall ensure B Street is clean, neat and in good order at the time of inspection by any prospective buyer,
(c) Upon the parties accepting an offer to purchase B Street, the father (as registered proprietor) shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the listing agent or the conveyancer,
(d) The contract of sale shall provide for completion within 42 days after the date of the contract,
(e) Upon agreement being reached for the sale of B Street, the father shall cause to be repaired any damage to B Street caused by him after the date of the contract of sale, with such repairs to be rectified at the father’s cost prior to the settlement date (‘cost of repairs’) FAILING WHICH if those costs are paid from the sale proceeds or by a third party (including the mother), THEN such expenses shall be reimbursed to the payee from the father’s share of the sale proceeds, and
(f) Upon completion of the sale of B Street the proceeds of sale shall be paid as follows:
(i) to discharge any mortgage secured over the property,
(ii) to discharge any liabilities attached to the property (such as council rates, water utilities or cost of repairs),
(iii) in payment of the listing agent’s and/or the auctioneer’s commission and advertising or other expenses payable on the sale,
(iv) in payment of the conveyancer’s legal costs and outlays relating to the sale, and
(v) in payment of the balance in accordance with Order 17.
By auction
13. If B Street is not sold by private treaty on or before Tuesday 19 November 2024, THEN the parties are jointly appointed trustees for the sale and unless otherwise agreed in writing between the parties they shall do all acts and sign all documents as necessary to sell the property by public auction and on the following terms:
(a) By Friday 22 November 2024, the auctioneer shall be as agreed in writing between the parties (‘the auctioneer’), FAILING WHICH, the auctioneer shall be as nominated by the listing agent,
(b) By Friday 29 November 2024, the reserve price for B Street shall be as agreed in writing between the parties (‘the reserve price’) FAILING WHICH the reserve price shall be as nominated by the auctioneer,
(c) By Friday 13 December 2024, the auction shall take place unless otherwise agreed in writing by the parties.
14. To facilitate the sale of B Street by auction -
(a) The parties shall execute all documents requested by the auctioneer for the sale of B Street by auction,
(b) The parties shall equally pay to the auctioneer any sums requested for advertising or auction expenses,
(c) The parties shall give such instructions as are necessary to the conveyancer 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,
(d) The parties shall co-operate in every way with the auctioneer in relation to the sale by auction and the father shall be solely responsible for communicating with the auctioneer as the sole point of contact to always organise inspections of the property reasonably requested by the auctioneer,
(e) The father shall ensure B Street is clean, neat and in good order at the time of any inspection and on the day of auction,
(f) The parties shall attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached,
(g) The sale price of B Street shall be any amount more than the reserve price, but should the reserve price not be reached, THEN the sale price of the property shall be such amount as is agreed between the parties or failing agreement, THEN the parties shall accept any offer received after the auction to buy the property at a price that is at least 95% of the reserve price,
(h) Upon agreement being reached for the sale of B Street Orders 12(c) to (f) shall apply.
15. Should B Street not be sold at auction pursuant to Order 13 or within 14 days after the date of the auction by further negotiation, THEN the parties shall cause a further auction of the property to be held within two (2) months after the date of the first auction and for that purpose the provisions of Order 14 shall apply.
16. Should B Street not sell at the second public auction, THEN there be further and subsequent public auctions until the property sells whereupon the reserve price for each further and subsequent auction shall reduce by 5% and otherwise the provisions of Order 14 shall apply.
17. Subject to Orders 8, 9 and 12(e) the remaining proceeds of the sale of B Street (after payments are made in accordance with Order 12(f)(i) to (iv) shall be held in a controlled monies or trust account operated by the conveyancer in the joint names of the parties (‘the controlled monies account’) and shall be disbursed in the following way, so as to achieve a 60:40 adjustment in favour of the mother:
(a) Payment to the mother (‘the mother’s share’) in accordance with their written direction and calculated by reference to the following formula:
(TM + MA + FA) x 60% = the mother’s share
Where
TM = trust monies held by the appointed conveyancer – the remaining proceeds of sale of B Street,
MA = the mother’s assets and superannuation totalling $23,898,
FA = the father’s assets and superannuation, less the encumbered B Street and including the father’s addback of $25,000 totalling $361,785,
PROVIDED THAT
(i) if the father fails to comply with Orders 8, 9 and/or 12(e) or costs were reasonably incurred because of his failure to comply with these Orders and the remaining proceeds of sale were reduced as a result and/or the mother separately incurred the expense or made the payment, THEN to reflect any such failure, the father’s share shall be correspondingly reduced and the mother’s share correspondingly increased.
(b) Payment of the remaining balance to the father (‘the father’s share’) in accordance with his written direction.
D Pty Ltd
18. The father shall indemnify the mother and keep the mother indemnified in respect of all liabilities in the father’s name or in the name of D Pty Ltd or any associated entities.
Miscellaneous
19. Pursuant to s 106A of the Act, in the event that a party neglects or refuses to sign any deed or instrument necessary to give effect to these orders within five (5) days of a written request to do so by the other party, then upon the filing of an Affidavit evidencing such neglect or refusal a Registrar of the Federal Circuit and Family Court of Australia (Division 2) at Brisbane or such other court officer appointed in their stead, is empowered to:
(a) Execute such deed or instrument in lieu of the defaulting party and do all acts and things necessary to give validity and operation to such deed or instrument; and
(b) Make order as it considered just as to the payment of costs and expenses of and incidental to the preparation of such deed or instrument and its execution.
20. Should there be a prospect of the father being the subject of an obligation to pay child support for X, the parties are permitted to provide a copy of these Orders, Declarations and Notations to the Child Support Registrar.
21. All outstanding applications are otherwise dismissed.
THE COURT FURTHER DECLARES THAT:
IV. Unless specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders, pursuant to s 90SL of the Act each party:
(a) Shall be solely entitled to the exclusion of the other, to all property (including choses-in-action) in the name or possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person named as account holder,
(b) Shall be solely liable for and shall indemnify the other against all debts attaching, encumbering, or relating to the property in their respective possession and any items of property to which that party is entitled pursuant to these orders and any debts in their respective sole names, and
(c) Forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.
THE COURT NOTES THAT:
A. Pursuant to s 65DA(2) and s 62B of the Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
B. In exercising its discretion to award the mother 60% of the parties’ property interests, the Court had regard to the mother’s position that she would never apply for an administrative assessment of child support and that, consequently, the father would never have an obligation to pay child support.
C. Should a party file an application for costs that is ancillary to the determination of these proceedings, then at the time of filing such application, they are permitted to contemporaneously notify the chambers of Judge Kearney of this occurrence by email at […@...] in order to ensure that such application is listed for hearing before Judge Kearney.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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