Keogh and Keogh

[2013] FamCA 268

FAMILY COURT OF AUSTRALIA

KEOGH & KEOGH [2013] FamCA 268

FAMILY LAW – PRACTICE AND PROCEDURE – Orders for sale of former matrimonial home and application of the proceeds of sale – Order for the wife to sign documents in the name of the husband – Liberty to apply

Family Law Act 1975 (Cth) s 106A

APPLICANT: Ms Keogh

RESPONDENT: Mr Keogh

FILE NUMBER: HBC 80 of 2013

DATE DELIVERED: 9 April 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 9 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turnbull

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

UNTIL FURTHER ORDER

1. BY WAY OF INTERIM PROPERTY ORDER and pursaunt to s 106A of the Family Law Act, Ms Keogh (born … 1986) (‘the wife”) be appointed to sign a contract for the purpose of the sale of property at … S Street, Suburb M in Tasmania (‘the Suburb M property’).

2. The wife cause the sale of the Suburb M property subject to:-

   (a)the power to enter into the contract on behalf of herself and on behalf of Mr Keogh (‘the husband’) shall operate as and from the later of twenty one (21) days from the date of this order or seven (7) days after the husband is personally served with a copy of this order or such other period as is ordered by a court exercising jurisdiction under the Family Law Act;

   (b)the listing and selling price of the Suburb M property shall be as agreed in writing between the parties or if they are unable to agree as determined by B Valuers. Such sale price shall further not be less than $240,000.00 or such other sum as is determined by a court exercising jurisdiction under the Family Law Act.

3. Pursuant to s 106A of the Family Law Act the court appoints the wife and authorises the wife to sign all documents and do all acts to list the property for sale with C Real Estate Agents and IT IS NOTED this order empowers the wife as and from 9 April 2013.

   IT IS DIRECTED

4. All net rental income in respect of the Suburb M property be paid directly to B & E Loan Account no. …53 as and from the date a copy of these orders are served upon the tenant/s of the Suburb M property.

5. At the completion of the sale of the property, the proceeds of sale be disbursed as follows:-

   (a)payment of legal costs and disbursments associated with the sale, to that end, M+K Dobson Mitchell and Allport, being the solicitors who acted in relation to the acquisition of the property, are to be employed as solicitors for the vendors on the sale;

   (b)payment of real estate agent’s commission and advertising expenses on the sale together with any valuation fees pursaunt to these orders;

   (c)payment of outstanding council rates, water rates and land tax;

   (d)discharge of the mortgage to B & E over the subject property;

   (e)refund to the wife of any monies she has paid since September 2012 with regard to council rates, water rates, land tax, home building insurance and mortgage instalments of principal and interest; and

   (f)the balance of the proceeds of sale to remain in the trust account of M+K Dobson Mitchell Allport pending further order of a court exercising jurisdiction under the Family Law Act.

6. The wife cause a sealed copy of this order to be served upon the husband, as soon as is practicable, together with a letter setting out the stay operating on the exchange of contracts and informing him that the matter is listed for a possible undefended hearing on 15 May 2013 at 9.00am if he does not file a response, affidavit and financial statement on or before that date.

7. The husband attend before the Family Court at 9.00am on 15 May 2013.

8. The husband file and serve a response, financial statement and affidavit in reply before 4.00pm 14 May 2013.

   IT IS FURTHER ORDERED

9. Leave be given to the husband or wife to have the matter re-listed before the Court on the giving of forty eight (48) hours notice to the Court and to the other party.

10. These proceedings be listed for possible undefended hearing at 9.00am on 15 May 2013 at Hobart.

    IT IS FURTHER DIRECTED

11. A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS CERTIFIED

12. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keogh & Keogh 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 HOBART

FILE NUMBER: HBC 80 of 2013

Ms Keogh

Applicant

And

Mr Keogh

Respondent

REASONS FOR JUDGMENT

1. Ms Keogh is an administative officer who has made application to the Federal Magistrates Court for orders relating to an adjustment of property between herself and her husband, Mr Keogh.  Those proceedings came before the Federal Magistrates Court yesterday and there is evidence that the husband was firstly served and, to that end, I note the affidavit of service of Mr D filed 13 March 2013.  There was no appearance by the husband at Court yesterday despite him being called by a court officer, and I note the evidence of the wife in that regard.  The Federal Magistrate transferred the proceeding to the Family Court as there may have been a conflict which could have impacted upon her ability to hear the matter.  I happen to be available today to deal with this matter.

2. The issues relate to property between Mr and Ms Keogh and, in particular, their former matrimonial home at S Street, Suburb M.  Ms Keogh relied upon her affidavit filed 8 February 2013 in the Federal Magistrates Court.  It provides a history of the parties.  Firstly, that they began cohabiting in March 2005, they married in May 2008 and they separated in August of last year.  There are no children of their marriage.  Ms Keogh is employed as an administrative officer with a government entity and has a modest income.  She presently lives with her parents.  The husband, she says, is a self-employed tradesman and he works one day per week with a government entity.

3. The wife asserts that the parties entered into an agreement in September 2012 for a division of their property.  This was an informal agreement which, of course, is not enforceable in this Court.  The wife renounced her interest in the property at Suburb M and the husband’s business and the husband indemnified the wife in relation to the liabilities of the business and agreed to pay the mortgage, council rates, water rates and other expenses in relation to the home.  It’s clear that the wife acted upon that agreement.

4. The husband then decided the Suburb M property ought to be sold and listed it with a local real estate agent, C Real Estate Agents.  The wife says the value of the property was $250,000 and it was subject to a mortgage to B&E Limited of $224,000.  Exhibit 1 today shows that that mortgage is currently in arrears to the extent of $1952.85.  The amount outstanding under the mortgage is quite significant, being about $224,000.  It will take a very short period of time for the mortgage to exceed the value of the home when one considers costs on the sale and real estate agents’ fees. 

5. From the evidence of the wife, the husband has not been making all of the mortgage payments to B&E Limited and has not been paying insurance, nor has he been paying council rates and other expenses.  There is apparently a land tax bill on the property and it has been let by the husband without the wife’s knowledge or consent.  That’s probably not surprising, having regard to the agreement.  The surprising part is that the husband has not insured the property and is not using that rent to pay the mortgages.

6. The wife is concerned about her credit rating and arranged for a letter to be sent to the husband in January 2013.  That letter is annexure D to her affidavit.  There has been no substantive response to that letter.  The wife seeks an order that the property be sold so as to preserve her good financial record and also, no doubt, to protect her income from garnishing or other liabilities that may arise with regard to the building and the house on it.

7. I am inclined in the circumstances to make the order that the wife seeks and I intend to do so today, however, I will stay the application of the exchange of contracts or the entering into a contract for the sale of the property for a period of three weeks and I will direct that a copy of these orders that I propose to make be served upon the husband, so that if he wishes he can come back to this Court, put the finances in order, refinance if need be, and regularise the situation which, it seems to me, is the wife’s primary concern.  If he does not do so then the property can be sold and I propose to list the matter for an undefended hearing at 9.00 am on 15 May 2013.

8. Counsel for the wife has also indicated that there ought to be powers in the orders for her to sign the contract on behalf of the husband to avoid further unnecessary applications to the Court.  I give them leave to make that application but that order will not, of course, take effect until the passing of the three weeks and the husband being served personally with a copy of the order, together with a letter from the wife’s solicitors informing him of, firstly, the power that has now been given to her and the final hearing date, if he does not attend on 15 May 2013.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 9 April 2013.

Associate:     

Date:              9 April 2013