Hawkins and Hawkins (No. 2)

[2014] FamCA 1128

FAMILY COURT OF AUSTRALIA

HAWKINS & HAWKINS (NO. 2) [2014] FamCA 1128

FAMILY LAW – PROPERTY – Interim – Where Reasons for Judgment recently delivered on a range of interim issues and orders sought – Where the Wife has filed several Applications in a Case seeking interim orders with respect to use of the parties’ real property and disclosure – Where orders are made for the Husband to vacate the parties’ real property and for the Wife to take over mortgage repayments – Where orders are made with respect to disclosure of documents and for the parties to file and serve affidavits detailing how much they have each spent on legal fees and the sources of those funds

Family Law Rules 2004 (Cth)

APPLICANT: Mr Hawkins

RESPONDENT: Ms Hawkins

FILE NUMBER: BRC 6561 of 2007

DATE DELIVERED: 9 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 9 December 2014

REPRESENTATION

FOR THE APPLICANT: Wrightway Legal

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

It is ordered until further order that:

14 B Street, Suburb C (“the B Street property”)

1. The Husband shall forthwith make payment of any outstanding monthly mortgage repayments to the Commonwealth Bank of Australia for the property at B Street, Suburb C (“the B Street property”) which he has not paid in respect of the period between the Orders of 24 March 2014 and the date of these Orders.

1. On or before 10 January 2015, the Husband is to vacate the B Street property, with the Husband to be responsible for payment of the mortgage repayments to the Commonwealth Bank of Australia up to and including the 10 January 2015.

1. Upon the Husband vacating the B Street property and on and from 11 January 2015, and conditional upon the Wife maintaining repayments of the mortgage as referred to in these Orders, the Wife is to have the sole use and occupation of the said property with the Wife from the time of such occupation to be responsible for payment of mortgage repayments to the Commonwealth Bank of Australia in respect of the mortgage debt secured on the property.

1. Commencing from 11 January 2015 the Wife is to provide on a monthly basis to the Husband documentary evidence from the Commonwealth Bank of Australia evidencing her payment of the monthly mortgage repayments to the Commonwealth Bank of Australia for the B Street property as and when each such monthly payment is due.

1. If the Wife is unable or fails to meet any monthly mortgage repayment to the Commonwealth Bank of Australia for the B Street property when such payment is due, the said property is to be sold in the following manner:

a.   by the Husband and Wife doing all acts and things necessary and executing all such documents necessary to market the said property for sale by private treaty for a period of two (2) months at the agreed sale price of $800,000, and for the purpose of listing and marketing the property for sale the Wife shall nominate and provide to the Husband the names of three (3) real estate agents to effect such sale, with the Husband to select and nominate from that list the real estate agent to market and list the property for sale; and

b.   with the Wife to cooperate in every way with the nominated real estate agent and without limiting the generality of such cooperation it shall include:

i.making the keys to the property available for the agent;

ii.allowing inspection of the said property at all reasonable times requested by the agent;

iii.doing or saying nothing to hinder or prevent the sale being effected;

iv.ensuring that the property, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

v.signing all documents by the agent in relation to the listing for sale by private treaty of the said property except a contract or agreement for sale which has not been authorised by the parties.

1. If the B Street property is not sold by private treaty within two (2) months of being listed for sale by private treaty then the said property is to be sold by public auction in the following manner:

a.   by the Husband and Wife doing all acts and things necessary and executing all such documents necessary to sell the said property by public auction with the Wife to nominate and provide to the Husband the names of three (3) real estate agents to effect such auction and with the Husband to select and nominate the real estate agent to carry out the auction (“the auctioning agent”); and

b.   with the Wife to cooperate in every way with the auctioning agent and without limiting the generality of such cooperation it shall include:

i.making the keys to the property available for the auctioning agent;

ii.allowing inspection of the said property at all reasonable times requested by the auctioning agent;

iii.doing or saying nothing to hinder or prevent the sale being effected;

iv.ensuring that the property, including the grounds, are in a neat and clean condition at the time of inspection by the auctioning agent and prospective purchasers; and

v.signing all documents by the auctioning agent in relation to the listing for auction of the said property except a contract or agreement for sale which has not been authorised by the parties.

1. Commencing from 1 January 2015, the Husband shall permit inspections (of no more than three (3) per week) by the nominated real estate agent for the purpose of the Wife securing a tenancy of the B Street property on a furnished basis, with the Husband to be given reasonable advance notice of such inspections and the Wife not to be present at such inspections.

1. Whatever furniture and chattels the parties owned as at July 2006 and which remains in situ at the B Street property, is to remain at the B Street property, with the Husband to be permitted to remove only his own personal possessions when he vacates the said property.

1. U Auctions is appointed as the single expert within the meaning of the Family Law Rules 2004 for the purpose of carrying out a valuation of the furniture and chattels at the B Street property, upon a letter of instruction in the usual terms by the Husband’s legal representative with a copy to be provided to the Wife.

1. The Husband, in the first instance, is to be responsible for payment of the fees for such valuation, with the determination of ultimate responsibility for such payment to be reserved to the trial of these proceedings.

It is ordered that:

Disclosure

1. Within fourteen (14) days of the date of these Orders, the Wife is to provide to the Husband’s legal representative a list identifying all of the documents the Wife contends have not been disclosed by the Husband to the Wife, but ought to have been, pursuant to the orders for disclosure made on 19 June 2014.

1. Within fourteen (14) days thereafter, the Husband is to file and serve an affidavit disclosing any documents in his possession, power or control identified in the list supplied by the Wife, that have not been earlier disclosed.

Mr S

1. Both parties shall forthwith instruct Mr S Chartered Accountants, the single expert, to complete and make available their report as soon as practicable on the material currently available to Mr S.

Spousal maintenance

1. UNTIL FURTHER ORDER By way of interim spousal maintenance on and from 11 January 2015, the Husband shall pay to the Wife the amount of $500 per week.

It is further ordered that:

1. Within fourteen (14) days of the date of these Orders, the Wife is to file and serve an affidavit detailing:

a.    the total amount she has spent on legal fees and outlays for the Supreme Court (trial and appeal) proceedings and shall annexe to that affidavit all invoices for any such legal fees and outlays; and

b.   the source or sources of funds used by her or on her account to meet payment of any such legal fees and outlays.

1. Within fourteen (14) days of the date of these Orders, the Husband is to file and serve an affidavit:

a.annexing relevant trust account records, statements and receipts evidencing the payment by him or on his account of any legal fees and outlays with respect to the Supreme Court (trial and appeal) proceedings and the current proceedings in the Family Court of Australia being file number BRC6561/2007;

b.detailing the evidence of repayments he has made towards the mortgage to the Commonwealth Bank of Australia for the B Street property between the Orders of 24 March 2014 and to date; and

c.providing particulars of the taxation incurred including the specific amount or amounts, and by whom or which entity or entities such taxation is incurred as a consequence of the monthly payments received from F (or any associated entity) by the Husband (or any associated entity).

1. Pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth) the Wife have leave to publish this Order to the Commonwealth Bank of Australia.

1. Paragraphs 5.1, 9 and 10 of the Wife’s Amended Application in a Case filed on 8 September 2014 be dismissed.

1. Paragraph 4 of the Wife’s Amended Application in a Case filed on 8 September 2014 be adjourned to the trial of these proceedings.

1. All other outstanding orders sought not otherwise dealt with contained in the Wife’s Amended Application in a Case filed on 8 September 2014 be adjourned for further hearing at 10.00 am on 16 February 2015 at the Family Court of Australia, Brisbane Registry.

1. Save for the orders sought in applications as specifically identified in these Orders and adjourned for further hearing, all other outstanding interim applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawkins & Hawkins (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6561 of 2007

Mr Hawkins

Applicant

And

Ms Hawkins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Recently, on 2 December 2014, I made some orders and delivered fairly extensive reasons for judgment in relation to the outstanding interim applications in this case.  I will not repeat what is recorded in those reasons for judgment but reference to them is necessarily for an understanding of the reasons I now deliver in relation to the further deliberations concerning outstanding interim issues.  I will address the issues by reference to each of the numbered orders sought in the wife’s Amended Application in a Case filed 8 September 2014.

Disclosure

1. On 19 June 2014 I made a number of orders with the consent of the parties.  Relevantly, those orders included paragraphs 4, 5 and 6, being the orders relating to relevant disclosure, as drawn and agreed to by the parties and made by me with their consent. 

2. The wife agitates issues of disclosure in paragraphs 1 and 2 of her Amended Application in a Case. 

3. In the course of argument this morning, it seemed to be resolved as a matter of consent that if the wife is given an opportunity within 14 days to provide a list of documents to the husband’s solicitor as to the documents she contends are outstanding, in the sense that they are yet to be disclosed, and the husband has an opportunity within 14 days after receipt of that list to address by affidavit the further disclosure sought, that is a means of resolution of this issue. 

4. I will therefore make orders to give effect to that, which then deals with paragraphs 1 and 2 of the orders sought in the Amended Application in a Case. 

Court appointed expert Mr S

1. As is set out in my 2 December 2014 reasons, there are difficulties for the Court dealing on an interim basis with a range of issues in the absence of evidence of at least a preliminary kind as to the worth of the major assets.  In particular, in this case, the likely value of any interest of the parties or either of them in what is referred to in my earlier reasons as F.  There is evidence from Mr S, who were appointed by an Order made in March 2014 to prepare an expert report or valuation of any relevant interests of the parties or either of them, that that report is largely complete and can be provided within about 14 days, subject only to them being instructed to complete the report.

2. The wife raises a number of what might be termed “forensic issues” that she has historically agitated concerning the information and instructions relied upon by Mr S for completion of the report. The Court has explained to the wife this morning that under Division 15 of the Family Law Rules 2004 (Cth) (“the Rules”), there are a number of things that a litigant might do upon receipt of an expert report. For example, a litigant can request a conference with the expert. Further, a litigant can ask specific questions of an expert.

3. The priority, as it seems to me, as explained in my reasons of 2 December 2014, is to obtain the report of Mr S so that some assessment can be made of the prospective value of the assets of the parties or either of them. The provision of that report at this stage would not otherwise limit the wife from pursuing further inquiries or steps she might take under Division 15 of the Rules, subject to issues of cost. Obviously, if Mr S were involved in further forensic exercises to complete the report, the cost of so doing might be visited upon both parties.

4. As I have explained to the wife, the Court is not prepared to allow the expert report process to become a repeat of any exercise that was engaged in by the wife in the Supreme Court proceedings which were agitated by the wife as referred to in my earlier reasons.  On that basis, during the hearing the wife agreed, and the husband seeks, that both parties now should instruct Mr S to complete the report and the wife can thereafter take whatever steps she considers are necessary to be taken once that report has been received.

5. I will therefore make orders to give effect to that so that each party does provide instructions to Mr S to complete and provide the report on the information that is currently available to them.

6. That would seem to dispose of paragraph 3 of the Amended Application in a Case. 

Return of superannuation moneys

1. I have dealt with this topic at some length in my reasons delivered on 2 December 2014.  I have explained again today to the wife that some issues cannot be conveniently or even reasonably dealt with on an interim hearing within the confines that attend an interim hearing as compared to a trial.  In my judgment, there are two reasons at least why the Court is not in a position to make an order for the husband to return a sum of money to any superannuation fund. 

2. First, it is a disputed issue of fact as to any use the husband made of withdrawn superannuation.  He says that it was in relation to payment of legal fees.  The wife contends that there is a lack of contemporaneity between his evidence about payments for legal fees given orally at an earlier hearing; and matters contained in his affidavit. 

3. In the course of today’s hearing it has been agreed by the husband, via his solicitor, that he will include in an affidavit he is to file, details of the amounts he has paid by way of legal fees (with supporting documentation) in relation to the Supreme Court proceedings and in relation to these proceedings. 

4. By Supreme Court proceedings, it incorporates reference to the trial proceedings which concluded in orders in December 2012 and the appeal proceedings that were pursued in 2013 in the Supreme Court of Queensland.  By these proceedings is meant the obvious; that is, the proceedings by this Court number BRC6561/2007, from their commencement in 2007 until to date. 

5. On that basis, it did not seem that the wife pursued this aspect further, as set out in paragraph 4 of her Amended Application in a Case, but if I am mistaken about that, I have determined that such an order cannot be made at this stage for the reasons I have advanced. 

6. I have also referred the wife to the feature that there would be inherent unfairness and injustice on the face of it if the husband was ordered to restore superannuation funds and there was no commensurate order for the wife to restore funds arising out of the losses from the Supreme Court proceedings.  The wife is obviously not in a financial position to so do. 

14 B Street, Suburb C (“the B Street property”)

1. The wife sought an order in paragraph 8 of her Amended Application in a Case for sole use and occupancy of B Street, Suburb C.  She contends that if she is given occupation of that property, she will be able to arrange for tenancies of that property sufficient to enable her to meet the ongoing mortgage obligation to the Commonwealth Bank in respect of the mortgage held by that bank over that property. 

2. As earlier noted in my reasons of 2 December 2014, it has been the husband’s position for some time that the property should be sold so that the debt to the Commonwealth Bank can be extinguished from the sale proceeds.  That is in circumstances where it seems the property has a value of about $800,000 on each party’s estimate and the mortgage debt is in the order of about $720,000. 

3. It is acknowledged on behalf of the husband that if he is relieved of the obligation to meet the monthly mortgage payment, he suffers no prejudice or detriment if the wife assumes occupation of the property and meets the mortgage payment.  Payment of the mortgage, though, is an important condition.  The husband’s obvious concern is that if the wife assumes occupation but does not achieve her ambition of paying the mortgage from rental, then there is the potential for the limited equity remaining in this property, namely about $80,000, to be diminished. 

4. On that basis, the husband is prepared to consent to an order that the wife assume occupancy within about 30 days of today’s date; and on and from the date of her assumption of occupation the wife is responsible for payments of the Commonwealth Bank mortgage.  The wife needs to provide evidence on a monthly basis of payment of the mortgage so that in the event she is unable or fails to make the monthly payment that should trigger orders for sale of the B Street property.   The wife accepted that condition.

5. An issue agitated associated with this, is the question of whether or not the husband has been making the mortgage payments to the Commonwealth Bank in the period since the orders were made in March 2014 and to date.  It is acknowledged by Mr Wright on behalf of the husband that it may well be that the husband has only made three such payments in total over the period since the March 2014 orders to date.

6. I confirmed with Mr Wright on behalf of the husband that he could not meaningfully oppose an order that the husband forthwith bring the mortgage payments up to date.  Mr Wright acknowledged on behalf of the husband that such an order should be made.  Without knowing whether or not the March 2014 payment was made, up until now obviously if March is included, there are some nine months, including November, and it may well be that the husband has only paid three of those months, leaving an outstanding six months.  Alternatively, if he paid the March payment, which is unclear to me, there would be five monthly payments necessarily to be made. 

7. Given the acknowledgment by the husband by his solicitor, I will order that the husband forthwith make payments of any outstanding monthly mortgage payments to the Commonwealth Bank that he has not met between the orders of 24 March 2014 to date and that he make the monthly mortgage payment up until the wife assumes occupation or sole occupation of the B Street property. 

8. The husband contends that the changeover date should be 10 January 2015 and that seems reasonable and I will adopt that date for the purpose of the formal orders I make.

9. I will further order that the husband be permitted to remove his personal belongings, but that otherwise, the furniture and chattels which remain from separation in the B Street property should remain there.

1. The husband seeks a formal valuation with respect to that property and has historically sought such a valuation which, for one reason or another, has not occurred by reason of the wife’s non-agreement to a valuation being obtained.  The husband proposes by his solicitor that U Auctions, who are valuers for the purpose of furniture and chattels, undertake that valuation and the husband is prepared in the first instance to meet the costs of such a valuation. 

2. I will therefore make orders for U Auctions to be appointed the single expert with respect to valuation of the furniture and chattels in the B Street property and that the husband be responsible in the first instance for payment of the valuation with the issue of payment for that valuation ultimately to be a trial issue.

3. I will order, in relation to the instructions to the valuer, that these be drafted in the usual terms by the husband’s solicitor and that they make a copy of that letter of instructions available to the wife.

4. To remove any doubt given the changeover date of 10 January 2015 I will order that each party be pro rata responsible for the mortgage payment.  That is, the husband is to be responsible – and I will make an order to this effect – that apart from the arrears of mortgage payments he is to make, that he is to be responsible for the mortgage payment attributable up until and including 10 January 2015.  Further, I will order that the wife be responsible for the mortgage payment on and from 11 January 2015.

5. In circumstances where the husband is relieved of the obligation to pay the mortgage, given the findings I made in the earlier reasons referred to, the husband is prepared to consent to an order that the wife receive, as and by way of interim spousal maintenance, the sum of $500 per week.  That order should take effect likewise on and from 11 January 2015.  Those proposed orders deal with paragraph 8 of the Amended Application in a Case and likewise absorb paragraphs 6 and 7 of the orders earlier sought, albeit that these were not pressed today. 

6. In the face of my earlier reasons delivered, the wife no longer presses paragraph 9 of the orders sought and that can be dismissed.  That is so also with respect to order 10 sought in the Amended Application in a Case. 

7. The wife otherwise seeks an adjournment of other orders sought pending the receipt of the Mr S report.  The question agitated by the wife was whether or not she should be provided with funds to make a payment to American Express in circumstances where that credit provider has made an offer to her in respect of its outstanding debt owed by the wife, to reduce the liability by way of a settlement by some $25,000.  That is an issue, if it remains an issue that will need to be addressed subsequent to the receipt of the Mr S report, on the basis that that report will enable the Court to at least undertake the preliminary kind of assessment that is required for an interim property order as referred to in my earlier reasons.  On that basis paragraphs 5.2 and 5.3 of the Amended Application in the Case are adjourned.  Otherwise paragraph 5 of the Amended Application in a Case has been dealt with and, in particular, 5.1 can be dismissed.

8. Otherwise the wife sought to adjourn paragraphs 11 and 12 of the Amended Application in a Case.  However, in the course of the hearing, I have addressed the material, by way of affidavit, the husband is to provide.  I have referred to his affidavit dealing with legal costs that would, in effect, take up it seems, much of what he says about withdrawals from superannuation for the purpose of funding his legal costs.

9. In the course of argument I have highlighted to the wife the need for her to address the total amount of money she has spent by way of legal fees and outlays concerning the Supreme Court proceedings.  The wife consents to an order that she provide within 14 days an affidavit setting out the amounts paid by way of legal fees by her or on her account with respect to the Supreme Court proceedings both in relation to the trial and the appeal.  That affidavit necessarily must contain sufficient details as to the source of the funds to meet those legal fees and outlays so that some assessment can be made in due course of the wife’s use of a share of funds she received via F/E in the period between July 2006 and the end of 2012 and also in an attempt to assess how it comes to be that the wife owes what she does in terms of total credit card debt currently.

10. To remove any doubt, Mr Wright has confirmed that he has historically made offers to Ms Hawkins that she can attend at his office and inspect relevant trust account entries to satisfy herself in relation to the husband’s payment of legal costs.  In the event Mr Wright confirmed on behalf of the husband, that there is no issue about the husband providing an affidavit with respect to his legal costs, as I have already referred to earlier, to include the documentary records concerning trust account entries relevant to any payments or to any payments made.  Mr Wright confirms that he will provide, for the purpose of the husband’s affidavit, relevant trust account receipts confirming the dates and amounts of payments.  These will appear as annexures to the husband’s affidavit.

11. In the course of argument it was also agreed that, as from 1 January 2015, the husband would not oppose inspections of the B Street property to be carried out by agents for the purpose of prospective tenants organised by the wife to carry out inspections on the basis that such inspections be limited to no more than three per week in the period from 1 January 2015 and that the wife herself not be present at any such inspection.

12. Mr Wright confirms, on behalf of the husband, the husband’s preparedness to take some photographs of the B Street property externally and internally so that these may be provided to the wife for the purpose of her pursuing some advertising of the property for rental on and from 11 January 2015.

13. As discussed during argument, in the event that the wife fails to meet the condition in respect of paying the mortgage on and from when she commences occupation of the property, both parties agree that sale of the property must proceed. 

14. The orders that I formally make will include orders whereby the wife nominates to the husband three suitable real estate agents for the purpose of selling the B Street property and from that panel the husband can select the real estate agent he chooses to be the marketing agent for sale of the property.  I will make orders facilitating there being a listing of the property for sale at the price of $800,000, in the first instance, for a period of two months by way of private treaty.  Thereafter, I will make the usual orders in relation to sale of the property by public auction.  The formalities of those orders will appear in the form of orders made. 

15. For these reasons I make the orders set out at the commencement of these reasons.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 December 2014.

Associate:

Date: 9 December 2014