Macarthur & Macarthur
[2021] FamCA 362
•26 May 2021
FAMILY COURT OF AUSTRALIA
Macarthur & Macarthur [2021] FamCA 362
File number(s): BRC 6154 of 2020 Judgment of: ALTOBELLI J Date of judgment: 26 May 2021 Catchwords: FAMILY LAW – PROPERTY – Interim spousal maintenance – Orders made for periodic spousal maintenance.
Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75 Cases cited: Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 588
Number of paragraphs: 30 Date of last submission/s: 24 May 2021 Date of hearing: 24 May 2021 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: The Norton Law Group Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Ramsden Lawyers ORDERS
BRC 6154 of 2020 BETWEEN: MS MACARTHUR
Applicant
AND: MR MACARTHUR
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
26 MAY 2021
THE COURT ORDERS THAT:
1.Within seven (7) days, the husband shall provide to the wife:
(a)Copies of all mortgage statements relating to the property known as B Street Suburb C in the State of Queensland (‘Suburb C property’) for the last 12 months.
(b)Copies of all rental statements relating to the Suburb C property for the last 12 months.
(c)Copies of all invoices and receipts relating to levies, utilities and outgoings for the Suburb C property for the last 12 months.
(d)Copies of all documents, records and information relating to termite damage and/or repair relating to the Suburb C property.
2.Both parties comply with their obligations to make full and frank disclosure during these proceedings including provision of information or documents within 14 days of any requests made of him or her until further order.
3.Within 14 days from the date of the making of this order, the parties shall do all things to forthwith list the Suburb C property for sale by public auction at the earliest possible date nominated by the real estate agent acting on the sale of the property.
4.For the purposes of order 3, the following shall apply:
(a)The real estate agent to act in respect of the sale shall be as agreed by the parties and, failing agreement, the parties shall forthwith do all acts and things for a real estate agent to be appointed by the President of the Real Estate Institute of Queensland or his/her nominee;
(b)The solicitor to act in respect of the sale shall be as agreed by the parties and, failing agreement, the parties shall forthwith do all acts and things for a solicitor to be appointed by the President of the Queensland Law Society or his/her nominee; and
(i)The fee of any such appointment of the real estate agent and/or the solicitor shall be met by the parties equally and each party to pay 50% of such fee as and when it falls due.
5.Upon completion of the sale of the Suburb C property pursuant to the above orders 3 and 4, both parties do all acts and things including signing all documents as may be necessary to cause the proceeds of sale to be disbursed in the following manner and priority:
(a)Payment of costs and expenses associated with the sale including agent commission, marketing fees, solicitor fees and disbursements;
(b)Payment in the sum necessary to discharge all mortgages secured against the title of the Suburb C property;
(c)Payment in adjustment of any outstanding council rates or water rates to complete the sale;
(d)Payment of $80,000 to the wife;
(e)Payment of the balance to be held in the conveyancer’s trust account pending further order or an agreement in writing between the parties.
6.Pending sale of the Suburb C property, both parties to do all acts and things including signing any documents as may be necessary to cause the disbursement of any rental income receivable in respect of the Suburb C property as follows:
(a)Payment of the managing agent’s fees;
(b)Payment of the outgoings including council rates, water rates, strata levies and repairs;
(c)Payment in the required monthly amounts for the Advantage bank loans associated with the mortgages secured on title of the Suburb C property; and
(d)Payment of the remaining balance to the parties in equal shares, if any.
7.The husband forthwith pay to the wife by way of spousal maintenance the sum of $1,348 per week, with such amount to increase to $2,037 per week upon settlement of the Suburb C property.
8.Leave be granted to the parties to file consent orders in Chambers.
IT IS NOTED THAT
A.The sum of $80,000 referred to in order 5d above is to be characterised by the trial judge.
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 Macarthur & Macarthur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from the transcript)ALTOBELLI J:
This matter came before me as duty judge in Sydney on Monday. The dispute between the parties is relatively narrow. The wife sought spousal maintenance in the sum of $2,037 weekly. The husband offered to continue to pay the sum of $200 each week. The wife sought an order for lump sum spousal maintenance in the sum of $80,000, with such amount to be paid from the sale proceeds of their jointly owned property at Suburb C in Queensland. The husband opposed the making of any lump sum spousal maintenance order, but submitted that if the Court were to make such an order, it should not be characterised as lump sum spousal maintenance, but rather the payment be made on the basis that the characterisation be left to the trial judge. There did not appear to be much contention about this particular issue from the wife's perspective, and an order will be made to reflect this if that is where the Court goes.
Both parties sought orders in relation to disclosure. Whilst both parties agreed that the Suburb C property should be sold, the major point of contention appeared to be whether it be sold by public auction as the husband proposed, or by private treaty as the wife proposed. The precise orders sought by the wife were contained in a document entitled ‘Minute of Orders Proposed by the Applicant Wife’ provided to the Court by her counsel, Mr O'Reilly. Likewise, the orders sought by the husband were contained in a minute of order provided by his counsel, Mr Gardiner. These two documents are produced in the first and second schedules to these reasons respectively.
The material relied on by each of the parties is set out in their respective case outline documents.
In support of her case, the wife relied on the following documents:
(a)Her Amended Initiating Application filed 27 April 2021;
(b)Her Financial Statement filed 13 May 2021;
(c)Her Affidavit filed 13 May 2021; and
(d)Notice to Produce.
In support of his case, the husband relied on the following documents:
(a)His Further Amended Response to Initiating Application filed 13 May 2021;
(b)His Affidavit filed 13 May 2021;
(c)His Financial Statement filed 13 May 2021;
(d)Documents in his Tender Bundle, which were tendered and marked as exhibits; and
(e)Notice to Produce filed 10 May 2021.
In addition, a considerable volume of documents provided electronically as tender bundles were relied on. Specific documents were tendered out of those documents and marked as Exhibits A1 to A3 and R1 to R4.
By way of background, the wife is 39 years old, the husband 34. They commenced living together in Australia in July 2013, married in 2014, and their daughter X was born in 2017. They separated in December 2019. In May 2020, the wife commenced the present proceedings in the Brisbane registry of the Federal Circuit Court. The matter was then transferred to the Federal Circuit Court in Sydney, and ultimately transferred to the Family Court. On 27 July 2020, Judge Purdon-Sully in the Federal Circuit Court made interim orders for the husband to pay to the wife $200 per week by way of spousal maintenance. The proceedings also involve competing property applications. The wife and children are in the United States, and the husband is in Australia, but he is a professional who travels in the course of his work-related duties.
THE APPLICABLE LAW
The applicable law relating to the matters before the Court was not in contention between the parties. In this regard, the Court adopts paragraphs 1 to 4 of the Applicant wife's case outline document as a statement of the applicable law, set out in the paragraphs that follow.
In respect of the wife’s claim for spousal maintenance, the operation of a spousal maintenance application in governed by s 72 of the Family Law Act 1975 (Cth) (‘the Act’). In Hall v Hall (2016) 257 CLR 490 at [3], the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, which provides:
Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason.
having regard to any relevant matter referred to in subsection 75(2).
As noted by the High Court in Hall v Hall, the wife carries the onus of satisfying the Court on the balance of probabilities that she has satisfied the gateway requirement of s 72(1) of the Act.
In Saxena v Saxena (2006) FLC 93-268, Coleman J explained at [39] that in determining whether to make an order for spousal maintenance, the Court should follow a four-step process, as follows:
(a)Can the Applicant support themselves adequately?
(b)If not, what are the applicant’s reasonable needs?
(c)What capacity does the respondent have to meet those needs?
(d)What order is reasonable, having regard to s75(2) of the Act.
There are some discrete issues that can be dealt with succinctly before dealing with the more substantive issues. The orders for disclosure proposed by both parties are not mutually exclusive. Thus, order 2 proposed by the wife will be made and order 13 proposed by the husband will be made.
The difference between the parties about whether the Suburb C property be sold by auction or private treaty is determined by making the order for sale by auction. The wife's opposition to this was difficult to understand. On the one hand, she was contending that she was in urgent need of lump sum spousal maintenance with its source being the sale proceeds of the Suburb C property, but on the other hand, her proposal, at least according to her counsel's submissions, seemed to prefer the sale by private treaty, which could, conceivably, take longer. Ultimately, the minute proposed by the wife referred to the property being listed for either sale by auction or private treaty in accordance with the recommendation of the selling agent. The wife seemed to suggest that because she was in the United States, she felt less able to influence the ultimate sale of the property. The husband seemed to suggest that the wife had been exceedingly tardy in ultimately agreeing to the sale of the Suburb C property. In reality, the differences between the parties are probably attributable to a lack of trust. The Court will order that the property be sold by auction in accordance with the minute proposed by the husband, save for the issue of lump sum spousal maintenance, which will be dealt with shortly.
A more direct pathway to sale will facilitate the wife receiving the lump sum that she seeks, if that is what the Court so orders. It will also ensure the sale of the property that both parties seem to want.
The spousal maintenance application falls to be decided by following a well-established pathway. The first question is whether the Applicant wife can support herself adequately. The Respondent husband made a concession in this regard, but the Court accepts it was a limited one. He certainly conceded that the wife was unable to support herself adequately to the extent that he agreed to pay her $200 per week. He was not prepared to make the concession in relation to the total amount sought by her. The Court regards this as an appropriate way to deal with the issue. The wife's case was clear. She was not in paid employment and had full-time care of the child. She contended that she had been unemployed and out of the workforce for a long time. She was dependent on credit cards in order to make ends meet, particularly in the circumstances of what she contended was both the limited child support and spousal maintenance paid by the husband.
Only one of these factual issues was put in contention by the husband, who sought by reference to documents tendered in evidence to establish that the wife had made prior representations as to her income and earning capacity in loan and credit applications that she had made whilst in the United States. His case was, in effect, a contention that the wife was either actually working but not disclosing her income, or at the very least had the capacity to work and, indeed, earn significant income. The documents that the husband took the Court to, however, do not establish that the wife's current income or earning capacity is other than as she contends in her sworn Financial Statement. It is unclear from the credit applications in question whether they are recent ones in a chronological sense. Moreover, the bank statements that were also tendered in evidence seem to reflect financial transactions that took place before separation, not recently. In short, the husband could not establish by way of any corroborative documents that the wife was earning the other income contended by him. The Court therefore finds on an interim basis that the wife cannot support herself adequately. This finding is, of course, on an interim basis and made by reference to her Financial Statement.
The next question to be determined is what are the Applicant wife's reasonable needs? The starting point in this regard is to examine her Financial Statement. Her only declared income is $8 per week by way of child support from the husband and $200 per week paid by way of spousal maintenance from the husband. The Court is satisfied from the documentary evidence that this is correct, and despite the husband's protestations that he is paying more child support at the moment, that certainly does not seem to be the case based on the documents before the Court. The child support will soon increase, but at the time of the wife's Financial Statement, it appears as if he was only assessed to pay the equivalent of $8 per week. I note that nothing ultimately turns on this, as the present focus is the wife's needs, not the child's.
The wife claims total personal expenditure of $3,237 per week. The largest items are for rent and utilities, amounting to $895 per week, and credit card payments of $800 per week. Her Part N expenses total $1,198 per week, of which $765 is attributable to her. Focusing on the expenses relating to her only, and notwithstanding the submissions made on behalf of the husband, none of the Part N personal expenditure relating to the wife presents as being excessive or unreasonable. It is noticeable, for example, and by way of comparison, that the husband's Part N expenses total $744 per week, and his work takes him overseas in a context where, the Court assumes, many of his living expenses are covered whilst he is away from home. It is to be remembered that the wife is only claiming $2,037 per week by way of spousal maintenance. Thus, even if the Court were to be critical of individual items of her claimed personal expenditure, over $1,000 worth of expenses would have to be disallowed. The only contentious item, from the Court's perspective, is item 30, the credit card repayments which the wife claims at $800 per week. The wife's case is that she is basically living off her credit card. A reasonable inference to be drawn is that the difference between the minimum payment, $403 per week, and the amount she actually pays, $800 per week, reflects expenditure for past periods, as well as the present. In any event, the discussion is academic because the wife's claim is only for $2,037. The Court is satisfied that the Applicant wife's reasonable needs amount to $2,037 per week.
The next question is what capacity the husband has to meet those needs. Once again, the starting point is his Financial Statement. He discloses a surplus of $226 per week. His counsel could not cavil with this. Counsel for the wife submitted that the husband had not properly disclosed his income as a professional, by failing to disclose a casual loading as to 20 per cent of his income. It is clear from the husband's Financial Statement filed 16 July 2020 that the casual loading of 20 per cent was included there, but there is no reference to a casual loading in his current Financial Statement, even though, it would appear on the evidence, he was engaged in a casual capacity at both of the times in question. Counsel for the husband referred the Court to, and tendered, documents from the husband's past employer, which confirmed the existence of the 20 per cent casual loading. Counsel also referred the Court to documents that the husband himself produced from his current employer confirming that he was employed on a casual basis in accordance with an enterprise agreement, and then produced past payslips from previous employment with the same employer which clearly indicated a 20 per cent casual loading. The totality of the documents produced to the Court creates a very strong impression that the husband's actual salary is 20 per cent more than what he discloses. In this case, his actual weekly income would probably be about $4,227.60 each week. The husband may well have minimised his income to the tune of nearly $705 per week. Based on this, therefore, and even before scrutinising expenditure, the husband's surplus of income over expenditure is $931 per week.
The focus then turns to his expenditure. The Court accepts that a logical result of the Court's impression formed above is that taxation must have been understated. The Court is prepared to give the benefit of the doubt in this regard to the husband and allow him a further $200 per week for taxation, namely, a 20 per cent increase. This reduces his surplus to $731 per week. The largest item of expenditure claimed by the husband represents mortgage payments on the Suburb C property totalling $636 per week. It must be noted that once the Suburb C property is sold, the mortgage payments will fall away.
Counsel for the wife submitted that the evidence established that the husband was not paying the mortgage as he alleges. This submission is at least in part borne out by reference to the bank statements in respect of the period of 1 January 2021 to 26 April 2021. The interest payments noted in the statement have in each case been reversed. These are documents produced by the husband himself. The husband's Affidavit was filed on 13 May 2021. Commencing from paragraph 101, he deposes to presently paying $636 per week by way of mortgage payments.
The impression created from the totality of the documents to which the Court was referred is that the husband was receiving a period of hardship assistance in relation to loan repayments, and this is consistent with the mortgage not having been repaid, rather than perhaps what was the husband's implied assertion that he was paying the mortgage at the relevant time. The documentation does suggest that the mortgage is in arrears, but this could be attributable to the hardship assistance or non-payment by the husband, or, indeed, both. Whilst the situation is not free from doubt, I think the husband again needs to be given the benefit of the doubt here. The evidence is quite clear that the hardship assistance has ceased, and accordingly, it is more likely than not that he is, in fact, liable to meet the mortgage, and accordingly, the Court cannot accept the submission of the counsel for the wife that, in effect, this expense should be disregarded. The Court notes that if it is the case that the husband has not paid the mortgage at a time when he had capacity to do so, this is a matter that may ultimately be taken up as part of the final property settlement between the parties.
At item 21 of his Financial Statement, the husband claims to pay board of $200 per week to Ms D, who, at paragraph 106 of his Affidavit, he explains to be his mother, but he himself acknowledges that this is a payment he makes to live there when he is not working. It is acknowledged that his work takes him overseas for extended periods of time. In the circumstances, the Court cannot allow the claim at item 21 in its present form. This means that the husband's capacity to pay is increased by $200.
Counsel for the wife was also critical of items 29 and 30, weekly credit card expenditure totalling $113 per week, on the basis that it represented double-counting of the expenses. This is a plausible conclusion to reach, and accordingly, this amount will also be added to his earning capacity.
As foreshadowed, the husband claims $744 per week in expenses at Part N. Counsel's broad submission was to cast doubt on these claimed expenses in their entirety on the basis that when the husband works offshore, most of his needs are provided. There is some substance to this submission. For example, it is highly unlikely that the husband is consuming electricity of $71 per week when he is overseas. The same could be said of petrol, $65 per week, cleaning, $30 per week, and gym membership of $28 per week. Moreover, car hire of $110 per week is implausible when he is overseas. The claim for $110 per week car hire was attacked by counsel for the wife on the basis that what the husband was doing was, in effect, hiring a car that was actually his but which he had given to his mother.
It must be remembered that at all relevant times the duty of disclosure was on the husband to properly disclose to the Court his income and expenses so that the question of his capacity to pay could be realistically assessed by reference to evidence before the Court. The duty is not rendered less arduous by the complexity of financial circumstances that he might have, such as the work arrangements that he has. The Court would have been assisted by much clearer evidence, but it was the husband's responsibility to provide this, and perhaps he could have been more helpful in this regard. In all the circumstances, all the Court can do is to adopt a robust approach and thus disallow his claimed expenses pertaining to car hire, gym membership, cleaning, petrol and electricity. This thus increases the husband's capacity by a further $304 per week.
The Court thus finds that until the sale of the Suburb C property, with the consequential discharge of the mortgages, the husband's capacity to pay the wife maintenance is $1,348 per week. After the sale of the property, his capacity to pay increases, according to the husband's own evidence, by $636 per week for the mortgage, $21 per week for home insurance and $120 per week for rates and levies. This makes his total paying capacity on settlement of the sale of the Suburb C property to be $2,125 per week.
The last stage of the exercise is to consider what order is reasonable, having regard to s 75(2) of the Act. Having regard to the evidence and the Court's discussion of it as set out above, the Court is satisfied that in all the circumstances it is proper for the husband to forthwith commence paying to the wife spousal maintenance in the sum of $1,348 per week, with such amount to increase to $2,037 per week on settlement of the sale of the Suburb C property.
The Court acknowledges, however, that the husband's current employment is expressed to be as a first engineer for five weeks from 14 May 2021. The husband is, in effect, a casual employee. That does not, of course, preclude the possibility of further casual employment, and indeed, there seems to be a history of that. Should his financial circumstances alter, there may be grounds for him to revisit the arrangement imposed by these orders.
The final issue relates to the claim for $80,000 for the wife to, in effect, discharge credit card debt out of the sale proceeds of the Suburb C property, and with the payment to be characterised by the trial judge. The credit card debt appears prima facie to be a substantial financial burden on the wife. It is a drain on her cash flow of $800 per week. Given the matters to which I have referred earlier in these reasons, it is in order for the $80,000 to be paid as she proposes, and the order will thus be made.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 26 May 2021
SCHEDULE A
MACARTHUR & MACARTHUR MINUTE OF ORDERS PROPOSED BY THE APPLICANT WIFE
1.That the Husband make payment to the Wife in the amount of $2037 per week by way of spousal maintenance, to be paid on the first Monday after the making of these orders and each Monday thereafter pending further order.
2.Within 7 days, the husband shall provide to the wife:
a.Copies of all mortgage statements relating to the property known as B Street Suburb C in the State of Queensland (Suburb C property) for the last 12 months.
b.Copies of all rental statements relating to the Suburb C property for the last 12 months.
c.Copies of all invoices and receipts relating to levies, utilities and outgoings for the Suburb C property for the last 12 months.
d.Copies of all documents, records and information relating to termite damage and/or repair relating to the Suburb C property.
3.Within 28 days from the provision of documents and information in order 1 above, the Respondent and the Applicant (“the parties”) shall do all acts and sign all documents as are necessary to cause for the property situate and known as B Street Suburb C in the State of Queensland (Suburb C property) and more particularly described as Lot … on Registered Plan … to be listed on market for sale and the following shall apply:
a.The property shall be listed with such real estate agent as is agreed between the parties and failing agreement within 28 of the husband’s compliance with order 1, the real estate agent will be as nominated by the then president of the Real Estate Institute of Queensland at the request of the parties or either of them.
b.The parties shall execute all documents requested by the selling agent.
c.The property shall be listed for either sale by auction or private treaty, in accordance with the recommendation of the selling agent.
d.The reserve and/or listing price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction or 7 days prior to the property being listed by private treaty, then the reserve/listing price shall be nominated by the selling agent.
e.The parties shall each pay to the selling agent one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties.
f. The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer. To this intent, the wife shall propose the names of three conveyancing solicitors and the husband shall select one from that list.
g.The parties agree to co-operate in every way with the selling agent in relation to the sale including allowing inspection of the property at all times reasonably requested by the selling agent and ensuring that the property is clean, neat and in good order at the time of any inspection and any auction.
h.If the property is to be sold by auction the parties or their agents shall attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.
i.If being sold by auction, the sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be listed for sale by private treaty at a listing price agreed between the parties or failing agreement as determined by the selling agent.
j.The husband shall meet the cost of staging/styling the Suburb C property for sale as recommended by the selling agent.
4.If, in the first instance the property is to be sold by private treaty on recommendation of the selling agent, and in the event the property is not sold within 90 days of being listed for sale, the parties shall do all acts and things to cause auction of the property.
5.Upon completion of sale of the Suburb C property pursuant to the above Orders 1 to 2, both parties do all acts and things including signing all documents as may be necessary to cause the proceeds of sale to be disbursed in the following manner and priority:
a. Payment of costs and expenses associated with the sale including agent commission, marketing fees solicitor fees and disbursements;
b.Payment in the sum necessary to discharge all mortgages secured against the title of the Suburb C property;
c.Payment in adjustment of any outstanding council rates or water rates to complete the sale;
d.Payment of $80,000 to the Wife to be paid to the Wife as lump sum spousal maintenance which the Wife is to apply to credit card debt.
e.The remainder of the sale proceeds to be held in the conveyancing lawyer’s trust account pending further agreement or an Order of the Court.
SCHEDULE B
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
File No. BRC6154/2020
BETWEEN
MS MACARTHUR
(Applicant)
AND
MR MACARTHUR
(Respondent)
BEFORE: Justice Altobelli
DATE: 24/05/2021
MADE AT: SYDNEY
UPON APPLICATION made to the Court by way of Minute of Consent duly signed by the Applicant AND the Respondent
IT IS ORDERED THAT:
1.Within 14 days from the date of the making of this Order, the parties shall do all things to forthwith list the property situated at and known as B Street Suburb C in the state of Queensland (Suburb C property) for sale by public auction at the earliest possible date nominated by the real estate agent acting on the sale of the property.
2.For the purposes of Orders 1, the following shall apply:
(a)The real estate agent to act in respect of the sale shall be as agreed by the parties and, failing agreement, the parties shall forthwith do all acts and things for a real estate agent to be appointed by the President of the Real Estate Institute of Queensland or his/her nominee;
(b)The solicitor to act in respect of the sale shall be as agreed by the parties and, failing agreement, the parties shall forthwith do all acts and things for a solicitor to be appointed by the President of the Queensland Law Society or his/her nominee; and
a.The fee of any such appointment of the real estate agent and/or the solicitor shall be met by the parties equally and each party to pay 50% of such fee as and when it falls due.
3.Upon completion of sale the Suburb C property pursuant to the above Orders 1 and 2, both parties do all acts and things including signing all documents as may be necessary to cause the proceeds of sale to be disbursed in the following manner and priority:
(a)Payment of costs and expenses associated with the sale including agent commission, marketing fees solicitor fees and disbursements;
(b)Payment in the sum necessary to discharge all mortgages secured against the title of the Suburb C property;
(c)Payment in adjustment of any outstanding council rates or water rates to complete the sale;
(d)Payment of the balance to be held in the conveyancer’s trust account pending further Order or an agreement in writing between the parties.
4.Pending sale of the Suburb C property, both parties to do all acts and things including signing any documents as may be necessary to cause the disbursement of any rental income receivable in respect of the Suburb C property as follows:
(a)Payment of the managing agent’s fees;
(b)Payment of the outgoings including council rates, water rates, strata levies and repairs;
(c)Payment in the required monthly amounts for the Advantage bank loans associated with the mortgages secured on title of the Suburb C property; and
(d)Payment of the remaining balance to the parties in equal shares, if any.
Spousal maintenance
5.That the mother’s application for spousal maintenance contained in her Amended Initiating Application filed 27 April 2021 be dismissed.
6.That Order 1 of Orders made on 7 August 2020 for payment of $200 per week by way of urgent spousal maintenance by the Husband to the Wife be discharged effective from the date of this Order.
Disclosure
13.That both parties comply with their obligations to make full and frank disclosure during these proceedings including provision of information or documents within 14 days of any requests made of him or her until further Order.
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Family Law
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Property Law
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