MACARTHUR & BROGDEN

[2015] FCCA 1544

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACARTHUR & BROGDEN [2015] FCCA 1544

Catchwords:
FAMILY LAW – Property – interim orders – application for extension of current mortgage to obtain further amount – exclusive occupation of former matrimonial home – whether parties should place former matrimonial home on the market for sale.

Legislation:
Family Law Act 1975 (Cth), ss.79, 106A

Applicant: MR MACARTHUR

Respondent: MS BROGDEN

File Number: SYC 5006 of 2014

Judgment of: Judge Scarlett

Hearing date: 11 May 2015

Date of Last Submission: 11 May 2015

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Ms O’Donnell

Solicitors for the Respondent: O’Donnell and Associates Family Lawyers

ORDERS

1. Within fourteen (14) days of the date of these Orders the Applicant Husband and the Respondent wife must sign all documents and do all acts and things necessary to authorise each party to obtain an extension of the current mortgage account Loan Number (omitted) with (omitted) Bank in the amount of $28,000.00 to each of the parties and each of the parties must repay such amount obtained under the loan to the (omitted) Bank on final settlement of the sale of the property at Property C in the State of New South Wales being the whole of the land contained in folio identifier (omitted).

2. The parties are otherwise restrained from further encumbering the said property at Property C except as set out in the immediately preceding Order.

3. The Respondent wife is to be entitled to the sole use and occupation of the said property at Property C aforesaid and the Applicant husband must not enter upon the said property except with the consent of the Respondent wife.

4. In order for the Applicant to obtain the consent of the Respondent to enter upon the said property at Property C aforesaid he is to give the Respondent not less than two (2) days’ notice in writing which may include by email or SMS message stating the time at which he wishes to attend the said property and the purpose for which he needs to attend the property and such consent of the Respondent must not be unreasonably withheld.

5. The Respondent is to be liable for the following costs and expenses in respect of the said property at Property C aforesaid as and when they fall due:

   (a)the costs of electricity, gas and telephone services in respect of the said property;

   (b)the repayments of the mortgage encumbering the said property;

   (c)all council and water rates and building insurance premiums.

6. The Respondent must:

   (a)keep the said property at Property C and all fixtures and fittings in the said property in good order and repair;

   (b)co-operate in all reasonable ways with requests by real estate agents and/or prospective purchasers including but not limited to providing keys to obtain access to the said property and doing all things necessary to facilitate access to the property by real estate agents and prospective purchasers at all reasonable times; and

   (c)maintain the property in a neat and tidy order whilst she resides in the said property and upon settlement of the sale of the said property must yield up the property in the same state of repair and condition as at the date the applicant husband left the property excluding fair wear and tear arising from the reasonable use of the property by the Respondent.

7. On or before 1 February 2016 the Applicant and the Respondent must do all acts and things and sign all documents necessary to place the said property at Property C in the State of New South Wales being the whole of the land in folio identifier (omitted) upon the market for sale by private treaty.

8. For the purpose of the above Order, the parties must:

   (a)do all things and sign all documents necessary to agree upon a real estate agent and appoint the real estate agent to act upon the sale of the property;

   (b)do all things and sign all documents necessary to agree upon a solicitor to prepare a Contact of Sale of the said property and act on the conveyancing of the said property once a sale has been agreed;

   (c)execute all such contracts, transfers, discharges of mortgage and other necessary documents in order to complete the sale of the said property.

9. Upon settlement of the sale of the said property the parties must cause the proceeds of sale to be paid in the following manner and priority:

   (a)as to payment of all costs and expenses of sale including legal costs and disbursements and real estate agent’s commission;

   (b)in payment of all outstanding council and water rates in respect of the said property;

   (c)in payment of the amount owing under any mortgage secured over the said property;

   (d)the balance to be held in a controlled monies account by the solicitor acting on the sale of the said property in the names of the parties until further Order of the Court.

10. In the event that the parties fail to agree on a real estate agent to act on the sale of the said property then the President of the Real Estate Institute of New South Wales is to nominate a real estate agent to act on the sale.

11. In the event that the parties fail to agree on a solicitor to act on the conveyancing of the sale of the said property then the President of the Law Society of New South Wales is to nominate a solicitor to act on the conveyancing of the sale.

12. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders within fourteen (14) days of having been requested to do so then the Registrar or a Deputy Registrar of the Sydney Registry of the Court is to be appointed in accordance with section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar or Deputy Registrar being provided with verification of the refusal or failure by a party by way of affidavit.

13. The Application is adjourned to 7 September 2015 at 10am for callover before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.

IT IS NOTED that publication of this judgment under the pseudonym MacArthur & Brogden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 5006 of 2014

MR MACARTHUR

Applicant

And

MS BROGDEN

Respondent

REASONS FOR JUDGMENT

1. This is an interim application where the applicant in the substantive proceedings is the husband and the wife is the respondent.  The wife has brought an Application in a Case seeking interim property orders and these orders include an order for the distribution of funds from the asset pool.  The orders are opposed by the husband who has filed a Response seeking dismissal of the Application in a Case.  The orders sought by wife would allow her to draw against the mortgage on the former matrimonial home to obtain a further amount of $28,000 which would be regarded as an interim distribution to her and the property proceedings and would need to be repaid by her on the final settlement.

2. The wife seeks an order that neither party should further encumber the property and, pending the auction and final settlement, she should be entitled to the sole use and occupation of the property, but she should be responsible for costs of gas, electricity, telephone services and half of the mortgage on condition, too, that she kept the property in good repair and cooperated, in all reasonable ways, with requests by real estate agents and prospective purchasers.  Apart from a dismissal of the application the husband, by his Amended Response to an Application in a Case filed on 16 April, seeks orders the parties should cooperate to submit the property, Property C, for sale by private treaty and that from the balance of purchase money there should be paid costs and expenses of sale, any amounts owing for rates, an amount to discharge the mortgage with the balance to be held in the controlled moneys account.

3. The husband seeks an order appointing a Registrar or a Deputy Registrar under the provisions of section 106A of the Family Law Act 1975 to execute any deed or document or instrument in the place of the party who fails to do so.  Further, he seeks an order that the wife should sign documents to authorise him to obtain an extension of the current mortgage account in the sum of $27,000, again, as an interim distribution.  He is also seeking a final hearing date to be set, as he said, to avoid prolonged stress on all parties.  It is difficult not to sympathise with that request.

Submissions

1. The mother’s case is that she needs an order for exclusive occupation of the home as the father has come into the home without notice and, at times, in her absence.  This has been unsettling and disruptive to her.  She complains the husband has not been paying the mortgage.  She claims that there are financial difficulties, as the husband is in arrears of child support.  There is an interim arrangement of the children to spend time with their parents on a week about basis she appears to be the one who has to meet more of the expenses for the parties’ children.

2. She needs the money, she says, to continue her living expenses for herself and the children until property proceedings are finalised and the former matrimonial home is sold. The husband opposes the orders.  He is particularly opposed to the order for exclusive occupation.  He fears that such an order will damage his professional reputation.  He is a (occupation omitted) by profession.  He has a number of musical instruments at the former matrimonial home and he would need access to them from time to time.  He also has some machinery.  He denies any violence towards the wife and when the parties were separated under the one roof he said he lived in the laundry for almost a year.  He confirmed that there is a shared care arrangement for the children and, in case of emergency, he said that he would need access to the former matrimonial home.

3. The husband is of the belief that the parties can resolve the parenting issues without the need of a final hearing.  He does not wish to delay the final hearing and expressed the fear that the wife was using the law against him.  He claims that she has already drawn down a sum of $27,000 from the mortgage and he is opposed to a further draw-down.  He fears that she would use the money as an excuse not to seek employment.  He denies her allegations about child support being in arrears and said it is all paid in full as of the day before the hearing.  As it is, the parties are a long way apart.

Conclusions

1. In view of the history between the parties, I am satisfied there should be an order for exclusive occupation and there should be some restriction on the husband entering the property without the consent of the wife and he should be in a position to give her no less than two days’ notice in writing to seek her consent.  That consent should not be unreasonably withheld.  I am also of a belief that both parties should be able to draw an amount of $28,000 each to carry over their living and other expenses.  The husband was previously legally represented, but could not afford to continue with that representation.  It might assist him to obtain representation.  Apart from that the parties should be restrained from further encumbering the property. From 1 February next year, and that date has been chosen because it is highly unlikely that property proceedings could be heard prior to that date, the parties must do all acts and things necessary to place the former matrimonial home on the market.

2. Whilst the wife remains in the home she should meet all outgoings, including making the mortgage payments. The sale proceeds should go towards sale costs paying off the mortgage and rate adjustments and then should be held in a controlled moneys account until the proceedings between the parties can be settled or further order of the court. I will order that a Registrar or Deputy Registrar to be appointed in accordance with section 106A of the Family Law Act 1975 (Cth) to execute deeds, documents or instruments in the name of a defaulting party.

3. At this stage I am not in a position to give the proceedings a hearing date.  The matters in my docket are such that I have no hearing dates left.  I propose to place this matter in a call over list on 7 September by which stage it is hoped that the Court will have received a further appointment to replace a judge who retired some months ago, and a hearing date can be allocated after or as a result of the call over. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  5 June 2015