Hillman & Hillman (No. 3)

[2021] FamCA 145

FAMILY COURT OF AUSTRALIA

Hillman & Hillman (No. 3) [2021] FamCA 145

File number(s):

BRC 1750 of 2016

Judgment of:

BAUMANN J

Date of judgment:

23 March 2021

Catchwords:

FAMILY LAW – PROPERTY – Application for enforcement of Orders – where both parties seek to be appointed as sole trustee for the sale of the property – Orders varied now that the property is to be sold.

Legislation:

Family Law Act 1975 (Cth) ss 105, 106A

Cases cited:

Hillman & Hillman [2020] FamCA 630

Hillman & Hillman (No. 2) [2020] FamCA 893

Number of paragraphs:

11

Date of hearing:

16 March 2021

Place:

Brisbane

Solicitor for the Applicant:

Mr L Brandon
Evans Brandon Family Lawyers

Respondent:

Self-represented

ORDERS

BRC 1750 of 2016

BETWEEN:

MS HILLMAN

Applicant

AND:

MR HILLMAN

Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	23 MARCH 2021

THE COURT ORDERS:

1.That Order 3(b) of the Orders made 23 October 2020 be varied to read as follows:

“The Suburb VV property shall be listed for sale by private treaty with a registered real estate agent chosen by the husband.”

2.That Order 3(c) of the Orders made 23 October 2020 be varied to replace the date “31 March 2021” with the date “30 April 2021”.

3.That Order 4 of the Orders made 23 October 2020 be varied to include the following further Order:

“(f)     The balance of the proceeds of sale are to be paid to the husband.”

4.That Order 15 of the Orders made 23 October 2020 remains in full force and effect.

5.That Order 17 of the Orders made 23 October 2020 remains in full force and effect.

6.That the Application in a Case filed 4 February 2021 be adjourned for Case Management Hearing at 9.30am on … May 2021 in the Family Court of Australia at Brisbane.

7.That the costs of the Application in a Case filed 4 February 2021 and the hearing before the Honourable Justice Baumann on 16 March 2021 be reserved.

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 Hillman & Hillman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

1. On 23 October 2020 Orders (“the said Orders”) were made to give effect to the Reasons for Judgment published in respect of the property dispute between the parties (see both Hillman & Hillman [2020] FamCA 630 and Hillman & Hillman (No. 2) [2020] FamCA 893).

2. On or about 5 February 2021, the wife Ms Hillman filed an Application for Orders pursuant to s 105 of the Family Law Act 1975 (Cth) (“the Act”) to give effect to Order 3 made 23 October 2020. By a Response filed 12 March 2021 the unrepresented husband Mr Hillman, seeks to also enforce the Order but in a different way.

3. Having heard submissions by telephone on 16 March 2021 and having read and considered the affidavits relied upon by the parties, I make the following findings:

   (a)the intent of the said Orders so far as the former matrimonial home at UU Street, Suburb VV (“the Suburb VV property”) jointly owned by the parties is concerned, was that the husband have an opportunity to retain ownership provided he:

   (i)paid the wife the sum of $160,000 by 22 January 2021; and

   (ii)discharged the mortgage over the Suburb VV property by 22 January 2021 thereby “extinguishing the wife’s liability”;

   (b)both parties in readiness for a settlement, signed a transfer of the legal interest to the husband solely in December 2020;

   (c)on or about 7 January 2021, the husband produced and the wife (through her solicitors) accepted a bank cheque for $160,000, although the “receipt” signed by the wife’s solicitor Mr Brandon included a hand written notation as follows: “noting that Order 1(b) of the Orders made 23/10/2020 is yet to be complied with”;

   (d)the husband acknowledges he has been unable to either extinguish the wife’s liability under the current mortgage to Westpac Banking Corporation or to refinance the current liability, which he says amounts to approximately $310,000, so as to discharge the mortgage. He offers reasons for being, he says, unable to do so which I discuss below;

   (e)the husband says, although he is confident he can sell the Suburb VV property and as a consequence is able to then discharge the current mortgage, difficulties with listing the property and conducting any negotiations with the wife and/or her solicitors create problems;

   (f)the husband’s “solution” to overcoming these problems is that he seeks to be appointed as “sole trustee” for sale of the Suburb VV property. In his Response, at paragraphs 2 to 8 (inclusive) he seeks a range of consequential orders;

   (g)the wife’s “solution” to overcoming these problems is that she seeks to be appointed as “sole trustee” for sale of the Suburb VV property. The consequential orders she seeks include:

   (i)requiring the husband to vacate the property within 30 days and thereafter restraining the husband from coming within 500 metres of the Suburb VV property or engaging in any way with the sale process; and

   (ii)giving the wife, as trustee, the sole right to choose the agent and solicitor to act on the sale, but at all times in accordance with Order 3 made 23 October 2020;

   (h)both parties seek costs orders against the other party.

   DISCUSSION

4. Although the husband says the orders sought by the wife are not machinery or enforcement orders (in circumstances where Order 17 gave liberty to apply), but in fact substantive property alteration orders, I disagree.

5. I accept that the husband, as he states, is not able to refinance the current mortgage so as to extinguish the wife’s liability (contingent as it is with the Suburb VV home being more than ample primary security).

6. However as Mr Brandon for the wife contends, even though he could not really argue that the wife is at risk of having to contribute to the principal debt (and the mortgagee bank is not demanding payment because repayments on the mortgage are well in advance), the contingent liability upon the wife could be affecting her capacity to borrow.

7. In the ultimate analysis, I do not at this stage propose to give either party the sole “control” of the sale process as each seeks through their application to be appointed as “the trustee”. The Orders made 23 October 2020 have, relevantly in my view, been substantially performed with the husband having paid to the wife the sum of $160,000 under Order 1(a). As a result, the husband has greater risks now in respect of the sale, particularly:

   (a)he resides in the property with his mother and, I infer, one of the children of the marriage;

   (b)he says he has allegedly incurred further expenses on maintenance and improvements; and

   (c)he is the party who is most affected by the delay because of the continued increase in the mortgage debt which he will need to discharge on a settlement.

8. The power to enforce under s 105 of the Act is a discretionary power, and in my view, the need to sell the property is no longer in dispute.

9. I accept the communication between the parties has revealed its ineffectiveness yet again. I will Order that:

   (a)Order 3(b) be varied to make it clear that the husband may now choose an agent (if there was any doubt that was the intent of Order3(b)(iii);

   (b)if the agent chosen by the husband requires a document (e.g. Agency to Sell) to be signed by the wife then, after this length of dispute, a Registrar will be empowered to sign the authority on her behalf. I note, in this respect, that Order 15 already provides for the exercise of that power under s 106A;

   (c)I will vary Order 3(c) to provide that if the property is not sold by private treaty by 30 April 2021, the property shall be sold by auction with a consequential variation to Order 3(c); and

   (d)to avoid any doubt, Order 4 will be varied to include the following further Order:

   (i)“(f)     The balance of the proceeds of sale are to be paid to the husband”.

10. The liberty to apply Order (Order 17) remains available should a further issue arise, however, I intend to adjourn the Application in a Case until 9.30am on 11 May 2021 by which time the home will have been under contract or, the auction process commenced.

11. I will order the costs of the Application in a Case and the hearing before me on 16 March 2021, be reserved.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       23 March 2021