Meadows & Meadows (No. 6)

[2021] FamCA 188

FAMILY COURT OF AUSTRALIA

Meadows & Meadows (No. 6) [2021] FamCA 188

File number(s):	PAC 3509 of 2013
Judgment of:	REES J
Date of judgment:	9 April 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious litigant order – Application for leave to institute proceedings – Dismissal of application without oral hearing.
Legislation:	Family Law Act 1975 (Cth) s 102Q
Number of paragraphs:	20
In Chambers:	9 April 2021
Place:	Sydney
Applicant:	Self-Represented
Respondent:	Self-Represented

ORDERS

PAC 3509 of 2013

BETWEEN:

MS MEADOWS

Applicant

AND:

MR MEADOWS

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	9 APRIL 2021

THE COURT ORDERS:

1.That the amended application of the wife dated 8 April 2021, seeking leave pursuant to s 102QE(2) of the Family Law Act 1975 (Cth) to institute proceedings, is dismissed.

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

REASONS FOR JUDGMENT

Rees J:

1. On 14 October 2020, in proceedings between Ms Meadows (“the wife”) and Mr Meadows (“the husband”) a judge of the Family Court of Australia (“the Family Court”) made an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) to prohibit the wife from instituting proceedings under the Act against or in relation to the husband or the child.

2. The wife now seeks leave to file an Amended Application in a Case, dated 8 April 2021, seeking orders in relation to the forthcoming sale of property. Those proposed orders are set out in the Amended Application in a Case.

3. As required by the Act, the wife has filed an affidavit sworn by her on 8 April 2021, setting out the evidence upon which she relies in relation to her application for leave and the application is dealt with in Chambers and without an oral hearing as is permitted by s 102QF of the Act.

4. She also seeks to rely on an affidavit sworn by her on 17 March 2021 in support of her Application in a Case, which application is replaced by this more recent application. Although the Family Law Rules permit the wife to rely only on the affidavit filed in support of the relevant application, I will read and have regard to this earlier affidavit.

5. In order to put that application in context, some background information is required.

6. On 30 July 2019, a judge of the Family Court made final orders in relation to property settlement. Those orders, relevantly, provide:

   19.That the husband shall pay the wife the sum of $200,000 (“the settlement sum”) within sixty (60) days of the date of this Oder and the husband shall retain as his exclusive property free of claims by the wife, the former matrimonial home at O Street, Suburb P (“the home”), with the husband indemnifying the wife from all claims, demands and actions arising from the home including the Bank PP mortgage.

   20.      That:

   a.Court allocates, as required by s 90MT(4) of the Family Law Act 1975, a base amount of $45,000 to the Applicant wife, Ms Meadows out of the Respondent husband’s, Mr Meadows interest in the WW Superannuation Fund (“the Fund”);

   b.in accordance with s 90MT(1)(a) of the Family Law Act 1975, the Trustee of the Fund:

   i.creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in Order 20; and

   ii.makes a corresponding reduction in the entitlement to the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.

   c.this Order has effect from the operative time and the operative time is four (4) business days after the date of service of a copy of the sealed Orders on the Trustee of the WW Superannuation Fund.

   21.That the operation of Order 20 be stayed until such time as the husband files an Affidavit deposing to:

   a.service of a copy of these Orders on the trustee of the WW Superannuation Fund; and

   b.the response, if any, received from the Trustee.

   22.That in the event that the Affidavit deposes that no response was received from the Trustee within twenty-eight (28) days of service of the Orders, or that the Trustee consents to the terms of the Orders, the stay imposed by Order 21 hereof is automatically discharged upon the filing of the Affidavit, without further order.

   23.      That unless otherwise dealt with in this Order:

   a.the wife shall retain as her sole and exclusive property free from claims by the husband:

   i.her jewellery;

   ii.her household contents;

   iii.her superannuation entitlements; and

   iv.any bank accounts and other personal property in her possession, power and control at the date of this Order.

   b.the husband shall retain as his sole and exclusive property free from claims by the wife:

   i.his motor bike;

   ii.his Vehicle 1;

   iii.his household contents, tools and trailer;

   iv.his remaining superannuation entitlements (after the splitting order at Order 20 takes effect);

   v.any bank accounts and other personal property in his possession, power and control at the date of this Order; and

   vi.his shareholding and other entitlements in L Pty Ltd (save for the Vehicle 3).

   24.That the husband shall, within sixty (60) days of the date of this Order, sign all necessary documents as the sole director of L Pty Ltd to transfer and assign the company’s right, title and interest in the Vehicle 3 (formerly registered …) to the wife.

   25.That if the husband is unable or unwilling to pay to the wife the settlement sum prescribed by Order 19 above, then:

   a.the home shall be sold by public auction and listed for that purpose by the husband, within ninety (90) days of the date of this Order, with a registered real estate agent agreed by the parties, and failing agreement as nominated by the President of the Real Estate Institute of New South Wales;

   b.the reserve price of the auction shall be no less than $620,000 unless agreed to by both parties but may be higher;

   c.the husband, for the purposes of the said auction, shall be required to accept an offer of $620,000 or higher;

   d.upon the settlement of any contract for sale of the home, the proceeds of sale shall be distributed as follows:

   i.payment of all real estate agent commission and marketing expenses;

   ii.payment of proper legal costs associated only to the husband’s sale of the home and proper adjustments on sale for rates and Government levies;

   iii.discharge of the secured Bank PP mortgage liability;

   iv.the balance (“nett sale proceeds”) to be distributed between the parties as set out in the next order.

   26.That the nett proceeds of sale are to be distributed between the parties so as to achieve an overall division of the nett non-superannuation interests found to exist and identified at paragraph 83 of the Reasons for Judgment, in the proportions of 45% to the wife and 55% to the husband.

   27.That pending the payment by the husband under Order 19 above, or the sale of the home under Order 25 above, the husband shall be entitled to remain in exclusive occupation of the home subject to him:

   a.continuing to pay the interest only payments on the Bank PP mortgage;

   b.continuing to pay rates, insurance and Government levies on the home as and when they fall due; and

   c.continuing to maintain the home.

   28.That each party shall be responsible solely for any credit card liabilities, personal loans and other debts and liabilities not otherwise dealt with in these Orders, as may be in their name at the date of this Order and shall indemnify the other party from any claims in respect of such labilities, and without affecting the generality of this Order. The wife shall specifically be solely responsible for her HECS debt.

   29.That the parties shall [sic] liberty to apply or [sic] any orders to enforce the provisions of this Order.

7. Pursuant to those orders, the home is to be sold in order for the wife to receive the funds due to her.

8. In Reasons for Judgment delivered on 31 March 2021, the Full Court of the Family Court noted that both the husband and the wife executed the document appointing the selling agent.

9. The application for leave, currently under consideration, is to seek orders which would postpone the auction of the home, scheduled to take place in April 2021, until such time as proceedings instituted by the wife in the New South Wales Civil and Administrative Tribunal (“NCAT”) in relation to the appointment of the selling agent, have been determined or resolved.  Other machinery orders are also sought.

10. The wife offers no undertaking as to damages.

11. Further orders are sought in relation to:

    ·the payment of the costs of sale by the husband (a matter which has already been dealt with in the substantive orders made 30 July 2019);

    ·possible damage to “items and amenities” in the home;       

    ·disclosure of any prior relationship between the husband and the solicitor instructed to conduct the conveyance;

    ·provision by the conveyancer and the selling agent of documents, photographs, reports and quotes “for the purposes of determination of value of the property in relation to order 27(c) and 25(d)(iv) of the orders dated  30 July 2019 …” based on that information;

    ·provision of quotes for fees and charges by the conveyancer and the selling agent;

    ·evidence of anticipated marketing fees and charges.

12. In so far as I understand the wife’s evidence, as set out in her affidavits sworn 17 March 2021 and 8 April 2021, she asserts that, because the selling agent was the agent when the husband originally purchased the home, and because of the husband’s personal and family connections in the JJJ area, the selling agent is not independent.

13. The wife asserts that she holds concerns that the husband is “colluding with others in the blue mountains” to her detriment and that she is thereby unfairly prejudiced.

14. In relation to the solicitor instructed by the husband to act for the vendor, the wife asserts a number of irregularities in the appointment but does not assert, and provides no evidence, that the solicitor is not competent to conduct the sale.

15. Other than the wife’s suspicions, there is no evidence to support her assertions of prejudice to her.

16. Briefly, in relation to the balance of the orders which would be sought:

    ·The orders made 30 July 2019 provide for the costs of the sale to be paid from the proceeds of sale.

    ·There is no evidence that the husband has caused any damage to “items and amenities”.

    ·There is no evidence that there is any prior relationship between the husband and the conveyancer. Neither is there any assertion of prejudice to the wife if that were so.

    ·The reserve price for the auction has been determined by the orders made 30 July 2019 and therefore there is no issue of value to be determined.

    ·There is no evidence that the fees proposed to be charged by the selling agent and the conveyancer are other than appropriate.

17. The minimum reserve price for the auction is prescribed in the orders made on 30 July 2019.

18. Since the husband is to receive 55 per cent of the value of the parties’ property, there is no advantage to him in diminishing the sale price of the home. Neither is there any reason for the husband to pay either the selling agent or the conveyancer any more by way of fees than he is obliged to pay or any evidence that he would do so to his own disadvantage.

19. The evidence upon which the wife relies does not support the making of orders in terms foreshadowed by the wife and she has not demonstrated that there are reasonable grounds upon which those orders would be made. The wife has failed to demonstrate that the proposed proceedings are not vexatious (s 102QG(4)).

20. Leave will not be granted to file her Amended Application in a Case.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       9 April 2021