HURRELL & HURRELL

[2017] FamCA 1006

FAMILY COURT OF AUSTRALIA

HURRELL & HURRELL [2017] FamCA 1006

FAMILY LAW – PROPERTY – SALE

FAMILY LAW – CHILDREN – PARENTING – whom a child shall live with

APPLICANT:

Ms Hurrell

RESPONDENT: Mr Hurrell

FILE NUMBER: CAC 1616 of 2017

DATE DELIVERED: 4 December 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: No attendance

Orders

1. That, within 14 days of the date of these Orders, the property at B Street, Suburb C in the State of New South Wales be listed for sale (“the sale”).

2. That for the purposes of Order 1 above the Wife be appointed as trustee for the sale of the property and is authorised to do all acts and sign all such documents as may be necessary to effect the sale of the Suburb C property;

3. That the property be marketed for sale by Mr D (Suburb E) on whatever conditions necessary as determined by the Trustee for sale.

4. That the property be sold by private treaty and if not sold within three months or such other time as the Trustee may determine, that there be an auction of the said property;

5. That the Trustee for the sale shall determine the listing price and the selling price after considering the marketing valuation of the property and the advice of the listing agent;

6. That the Trustee determine the conveyancing solicitor to be appointed to act upon the sale;

7. Upon completion of the sale, the proceeds of the sale be applied as follows:

   (a)Firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the real property;

   (b)Secondly to discharge the mortgage and any other encumbrances affecting the real property; and

   (c)Thirdly, the balance to be paid to an interest bearing account in the name of the parties or, in the event that this is not possible, the name of Infinity Legal Pty Limited.

8. That both parties are prohibited from dealing with the funds in the interest bearing account unless as agreed between the parties in writing or by further Order of this Court.

9. That the mother have sole parental responsibility for the children B (born … 2005), C (born … 2007) and D (born … 2009).

10. That the children live with the mother.

11. That the father be restrained and injunctions be granted restraining him from:

    (a)Contacting the children my any means either personally or through a third party; and

    (b)Being within 100 metres of the children, their school or any home in which they may reside.

    (c)These orders are made for the personal protection of B, born … 2005, C, born … 2007, and D, born … 2009.

12. This matter is designated as a Magellan matter.

13. The matter is otherwise adjourned to 12 February 2018 for further hearing or directions and it is noted that if the father takes no further steps in the proceedings prior to that day the matter may be dealt with to completion with final orders issued on the next occasion.

IT IS NOTED THAT

1. The solicitor for the mother will write to the father drawing his specific attention to the final term of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurrell & Hurrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1616 of 2017

Ms Hurrell

Applicant

And

Mr Hurrell

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The circumstances of this case are that the husband is currently in custody on remand in New South Wales for serious sex offences alleged to have been committed against a child of the relationship.  He has been served with the initiating process in these proceedings and the wife has notified him of the ongoing conduct of the proceedings in accordance with the directions previously made for her to do so by Registrar Payget.  Today’s proceedings involve two aspects, one involving the children and the second involving the major non-superannuation part of the property of the parties.

2. Dealing firstly with the question of the children as I have noted, the father is currently charged with serious child sex offences against one of the children.  The circumstances of the current proceedings are such that the primary consideration concerning the protection of a child from the consequences of family violence must take precedence in these proceedings.  They as currently alleged are sufficient to justify that there should be no contact between the father and the children under circumstances where given the nature of the allegations, which include sexual penetration of one of the children, there must be serious concerns as to the effect of even the father having minor contact with any of the children.  Despite the fact that this will result in a current displacement of any meaningful relationship between the father and the children that consequence is called for due to the gravity of the allegations currently made against him.

3. Orders will be made in respect of the children in accordance with the child related orders at exhibit W2 which will provide for the mother to have sole parental responsibility, for the children to live with the mother and the father to be restrained by injunction in relation to contacting or being within hundred metres of the children or their school or their homes.  In making that injunction it will be expressed to be for the personal protection of each of the children.

4. The second aspect of the proceedings involves the property of the parties.  The two most significant aspects of their property are the superannuation held by each and a property at B Street, Suburb C, New South Wales.  That property is subject to a mortgage that constitutes a significant proportion of the value of the property.  As the father is currently in custody he is not making payments towards that mortgage.  Payments towards the mortgage are currently being made by the mother on the basis of a moratorium that she has received from the Westpac Group in relation to the size of the payments.  Exhibit W1 shows that her loan repayments have been reduced by the bank until February 2018 without there being any expectation of a continuing reduction being available following that date.  From there on the payments will be at $1,958 per month. 

5. The circumstances disclosed in the mother’s Financial Statement are such that she does not have the capacity to make those mortgage payments.  That incapacity may result in either a forced sale of the property or at least a significant erosion of the limited equity that the parties hold in that property.  As a remedy to these circumstances the mother seeks to be appointed as the trustee for sale on the basis that the proceeds from the sale will be held pending further order of the Court or agreement of the parties.  This is a proper and necessary step for the preservation of the property of the parties pending the resolution of the matter and I will make orders in accordance with Exhibit W2 in relation to the property.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 December 2017

Associate: 

Date:  11 December 2017