MEDRANO & MEDRANO

[2013] FamCA 97

FAMILY COURT OF AUSTRALIA

MEDRANO & MEDRANO [2013] FamCA 97

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Bests interests

FAMILY LAW – PROPERTY – Value of property

APPLICANT: Mr Medrano

RESPONDENT: Ms Medrano

FILE NUMBER: TVC 720 of 2012

DATE DELIVERED: 07 February 2013

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 06 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows

SOLICITOR FOR THE APPLICANT: Giudes & Elliott Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Lee & Co

Orders

1. That except as otherwise provided for in these orders, the parties are to have equal shared parental responsibility for the major long term parenting issues of the children J born … May 1999 and B born … September 2001 (“the children”) including decisions regarding the children’s:-

   (a)education, both current and future;

   (b)religious and cultural upbringing;

   (c)health;

   (d)names;

   (e)living arrangements in terms of any changes thereto that would make it significantly more difficult for the children to spend time with the other party

2. That the children live with the Mother.

3. That the Father spend time with the children each and every alternate weekend commencing the weekend after these orders, from 8.30pm on Friday until 5.30pm on the following Sunday, the Father to collect the children from Location A at Town T and the Mother to collect the children from the roadside stop at Town C on the Sunday afternoon.

4. That the Father spend time with the children one half of each of the gazetted school holidays, being the first half in 2013 and the second half in 2014 and alternatively thereafter.

5. That pursuant to s.62G(2) of the Family Law Act, the Director of Court Counselling organise the preparation of a Family Report and each of the parties are directed to comply with all reasonable requests as the Reporter may make of them in connection with the preparation of the Report.

6. That the Mother forthwith enrol the child B at the Town T State School and cause him to commence schooling there on and from Monday 11 February 2013 and thereafter.

7. That neither parent shall permanently relocate the children outside the Town L district without the written consent of the other parent or by order of the Court first obtained.

8. That the parties shall:-

   (a)communicate with each other in relation to the welfare of the children by telephone call, mobile phone, text message or e-mail;

   (b)keep each other informed at all times as to their residential address and landline phone numbers and mobile phone number and e-mail contact address;

   (c)keep each other informed as the names and addresses of any treating medical practitioners, health care practitioners or similar who may come into any contact with the children and this Order shall serve as sufficient authority to any such practitioner to provide to the other party any information that they may lawfully provide about the children;

   (d)inform the other party as soon as reasonably practicable of any injury or illness effecting the children that requires any medical or hospital attention.

9. The Mother shall give the Father reasonable notice of any school, social or sporting event in which the children are involved so that the Father may have the opportunity to attend any such event.

10. That in the event that either parent wishes to travel with the children outside of the Town L district, the parent who proposes such travel shall provide the other parent with the following information not less than seven days prior to the date of departure:-

    (a)details of itinerary of intended travel;

    (b)list of contact telephone numbers and addresses at which the children may be contacted in a case of emergency

11. During the time that the children are with either party, that parent shall:-

    (a)respect the privacy of the other party and not question the children unduly about the personal life of the other party;

    (b)speak of the other respectfully;

    (c)not denigrate or insult the other party or the party’s family in the presence or hearing of the children and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the other party’s family in the hearing or presence of the children.

12. That the parties do not use illicit drugs when the children are in their respective care or 12 hours before the children are to enter into their respective care, or expose the children to drug use.

13. That the parties remain under the legal limit of alcohol for driving purposes while the children are in their respective care.

14. That within two months of the date or this Order the parties cause the former matrimonial property being Lot … on RP …, County of …, Parish of …, being more particularly described as Certificate of title reference … (“the property”) to be listed for sale with:-

    (a)Ms W of Real Estate Agent E;

    (b)Real Estate Agent F;

    (c)Real Estate Agent G; and

    (d)such other real estate agent as may be agreed upon between the parties

15. That within three months of the date of this Order the wife cause the property to be prepared to an appropriate marketable condition to the reasonable satisfaction of Ms W of Real Estate Agent E, with the uninsured component of the cost of those works to be borne equally between the parties.

16. In the event that the property is not sold by private treaty within six months of the date of these Orders, that the property be listed for sale by public auction by an auctioneer agreed by the parties, or failing agreement, as may be chosen by the President of the Real Estate Institute of Queensland for the time being, at a reserve price representing the median price as determined by the three Real Estate Agents specified in Order 14 hereof.

17. If the property is not sold by auction or by private negotiations within 14 days of the first auction, then the parties shall do all acts and sign all necessary documents to procure a second auction within seven weeks of the date of the first auction, upon the same terms and conditions as applied to the first auction.

18. That each party be at liberty to bid at any auction of the property.

19. That until the property is sold:-

    (a)neither party is to encumber the property without the written consent of the other party;

    (b)the wife is not to remove, destroy, damage or in any way deal with any item attached to or part of the matrimonial home including the property itself; and

    (c)that the wife have the sole right to occupy the property and that during such occupation the wife shall be responsible for the payment of all mortgages, rates and other imposts in respect of the matrimonial home.

20. That upon sale of the property, the proceeds of sale are to be distributed as follows:

    (a)payment of all costs commissions and expenses of the sale of the property;

    (b)in discharge of any mortgage or encumbrance over the land including but not limited to rates and water levies against the property; and

    (c)that any balance sale proceeds be paid to the trust account of Lee & Co Solicitors with such funds to be invested in the name of both parties and such funds only to be released either by written consent of both parties or by Order of this Court.

21. That within three months of the date of this Order the applicant’s business known as “Business H” or such other subsequent name as it may be trading under from time to time, be valued by a business valuer to be agreed upon between the parties and failing agreement by the parties, a valuer as appointed by the President of the Society of Certified Practising Accountants.

22. That each party have liberty to apply upon 48 hours notice to the other.

23. That costs be reserved.

24. That the matter be certified as appropriate for the attendance of Counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medrano & Medrano 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 TOWNSVILLE

FILE NUMBER: TVC 720/2012

Mr Medrano

Applicant

And

Ms Medrano

Respondent

REASONS FOR JUDGMENT

introduction

Before me are competing applications for interim parenting and property orders as set out in the father’s initiating application filed 11 December 2012 and the respondent mother’s response filed 21 December 2012.

CHILDREN’S MATTERS

Background

1. There are three children of the marriage, namely K born in January 1993, J born in May 1999 and B born in September 2001.  These proceedings only relate to J and B, who hereafter in these reasons, will be collectively referred to as “the children”.

2. The parties separated in November 2010.  The Mother continued to reside with the children in the former matrimonial home at Town I near Town T in North Queensland.  After separation, the father initially moved to Town M to live with his parents, but later took rented accommodation in Town L.

3. In 2011, both children attended Town T State School; in 2012, B remained in Town T State School, however J commenced in Town T High School.

4. There are no extant parenting orders.

Parental Responsibility

1. It is agreed between the parties, and I accept, that it is in the childrens’ best interests that there should be equal shared parental responsibility.

Interim Residence

1. The father seeks that the children live week about with each parent.  The mother seeks that the children live with her. 

2. As already noted, since separation, the children have resided with the mother, however since the introduction s.65DAA, the status quo is now a subordinate consideration, to the extent that it reflects, or is reflected in, the child’s best interests. [1]  Rather the Court’s task now is to consider firstly[2], whether the child spending equal time would be in the child’s best interests, secondly, whether that is reasonably practicable[3], and if so, to then consider making an equal time order.[4]  In the event that an equal time order is not made, the Court in then obliged to undertake the same process, save that instead of equal time, the enquiry is directed toward substantial and significant time[5], as that concept is articulated  in s. 65DAA(3). 

   i)[1] The status quo can be an additional consideration under s.60CC(3) – see for instance Goode v Goode (2007) 36 FamLR 422 at [73] and Mortimer v Grealy [2009] FamCAFC at [23]

   ii)[2] FLA s.65DAA(1)(b)

   iii)[3] FLA s.65DAA(1)(b)

   iv)[4] FLA s.65DAA(1)(c)

   v)[5] FLA s.65DAA(2)

3. Although strictly speaking, the task imposed upon the Court by section 65DAA ought be undertaken in respect of each child, the parties are agreed that this was not a case where splitting the children would be appropriate.

4. The father’s case is essentially that he enjoys a good relationship with both boys, and the children enjoy spending time not only with him, but also with his partner, Ms R.  He and Ms R reside in a three bedroom home in Town L with excellent accommodation for the children.  Assuming that both children were to continue to be educated in Town T, there is apparently a daily school bus from Town L which they could catch.  It appears as though the commuting time would be about 50 minutes each way. 

5. The father says that he has some concerns about the lack of supervision of the children by the mother, and to the extent that they may be supervised by her partner, Mr N, concerns as to his fitness for that role.  He also has concerns as to the hygiene regime maintained by the mother at the Town I home.  These concerns are not admitted by the mother, and I am not in a position to make any finding in relation to them on an interim basis. 

6. The mother’s position is that the children have resided with her since separation and wish to continue to do so.  She further says that the commuting distance between Town L and Town T is too much for the children to travel daily, and could adversely effect their schooling.  She does seem to accept that there would be some additional activities which the children could engage in at Town L, but says that those can be adequately met in holiday time and/or weekends.

7. The mother in her affidavit of 21 December 2012, expressed concerns about Ms R’s ability to care for the children, and particularly whether she has sufficient insight or experience to acknowledge their children’s needs.  She pointed to an example of Ms R encouraging the children to engage in a potentially dangerous race to illustrate her concerns. 

8. After this matter was before me on 29 January 2013, pursuant to leave I then granted, the mother filed additional material.  In her affidavit of 4 February 2013, the mother focussed particularly upon B’s resistance to a shared care arrangement.  She specifically said in relation to B “he does not want to live week and week about in [Town L].”  “[B] certainly does not want to live with his father each alternate week as stated above….”  “Even though I say that I think [J]  could live with a shared-care arrangement I am sure [B]  could not.  It would be very difficult for the children to cope individually and I believe they would not handle separation from each other well.”

9. In paragraph 25 of her 4 February affidavit, the mother further said as follows:

   I have further concerns about [Ms R] particularly in relation to [B]….She had told me that when we were friends that she had no time for children and that she is too busy for them.  I am concerned that there are relationship issues with [B] and [Ms R] that will have an adverse effect on [B] should a shared-care arrangement be ordered by the Honourable Court.  Annexed and marked “DJM6” is a copy of a page marked “Rules”.  It was written by [B] and handed to me in or about September 2012 after a weekend spent with [the father] and [Ms R]….

10. Exhibit DJM6 is a handwritten note which provides as follows :

“Rules”

1.        Don’t say bad things about mum when I am around

2.        [Ms R] is not to baby site me and [J] etcra

3.Wen dad is at worck I want to be with dady and [J] without [Ms R]

4.        And you didn’t meet [Ms R] 18 months after you and mum split up

5.        And please don’t lie to me dad

By [B]

Ps I riped the page in disgust (?) trying to think of the rules

1. In these reasons I will refer to this document as “the rules document”.

2. The mother explained that she had not previously disclosed the rules document in her December affidavit, because, although she had showed it to her solicitor at the time of preparing the December affidavit, she had been advised that it would be better to be placed before a Family Reporter at the time of preparing a Family Report, or to “give it” to an Independent Child Lawyer should one be appointed.  She went on to say:-

   I am now concerned in the event that there be no Family Report ordered or that there is no Independent Child Lawyer, that the Court be aware as much as possible of [B’s] desire not to be left alone with [Ms R].

   She also explained that she did not show the rules document to the father because she thought “that would make him mad with [B] and I”.

3. It appears as though B has a very close relationship with his mother.  It may be the case that he feels protective towards her.  I say that particularly in light of another document which he authored which is exhibit 2 to the affidavit of the father affirmed on the 5^th December 2012.  Whilst it is not necessary to set out the text of that document, assuming for the purposes of this interim application that it was the unprompted writing of B, it appears to suggest that B’s sympathies lie strongly with his mother vis-à-vis his father in relation to the separation.  Further material on a similar theme is contained in paragraph 57(b) of the father’s December affidavit.  Whilst the genuineness of B’s feelings, the reasons for them, and how they came to be so poignantly expressed, are matters that need to be explored at trial, in interim proceedings, the authenticity of the notes do not appear to be seriously challenged, and the fact that B has written them causes me concern as the to effect interim shared care may have upon him. 

4. I am conscious pursuant to section 60CC(2)(a), one of the primary considerations that a Court needs to take into account in determining what the child’s best interests are, is the benefit to a child of having a meaningful relationship with both of the child’s parents.  I do take that into account, however, I also take into account additional considerations as listed in sections 60CC(3).  Particularly, I take into account the views expressed by B in the two notes and I think that he is of a sufficient age and intellect that I ought give them some weight.[6]  I also note that there are concerns in relation to the nature of the relationship of him with Ms R which is a matter relevant under s.60CC(3)(b).  Further I take into account the potential likely effect of changes in B’s circumstances, including the likely effect of separation from his mother.[7]  Against that background, at this stage I am unable to conclude that it is in B’s best interests to spend equal time with each of the parents, nor can I conclude that it would be in his best interests to spend substantial and significant time with each of the parents.  In so concluding, I acknowledge I am being cautious, which caution is warranted in the circumstances, not least of which being that B has resided with the mother since separation.

   vi)[6] FLA s.60CC(3)(a)

   vii)[7] FLA s.60CC(3)(d)(i)

5. Whilst there does not seem to be any real dispute that J would not suffer any adverse effect from a shared care arrangement, and whilst it is my provisional view that it would be in his best interests to have a shared care arrangement with both parents, I do not think that it would be in his best interests to be split from his sibling on a week about basis[8], and in fairness, that was not urged upon me by counsel for the father.

   viii)[8] see FLA s.60CC(3)(d)(ii)

6. It follows that on an interim basis, it is my view that the children should live with the mother.

Interim Contact

1. I have already indicated that I am unable to conclude on the material that, on an interim basis, it is in B’s best interests to spend substantial and significant time with each of his parents.  The only other contact regime which is feasible in the circumstances is that proposed by the mother in paragraph 3 of her response, namely alternate weekend contact and one half of the gazetted school holidays being spent with the father.

B’s School

1. Perhaps the most significant matter argued before me was in relation to B’s schooling for 2013.  Indeed it appears that the mother’s unilateral decision to change his school from Town T State School to Town I State School precipitated the father’s application.

2. B’s schooling has been somewhat mixed.  He attended Town I Primary School for 2006, 2007 and 2008 but then went to Town O State School for the year 2009.  In an agreed decision, in light of the fact that J and B were fighting, in 2010 B went to live with his maternal grandparents at Town L, and in consequence attended Town L Primary School.  He then returned to live with the mother and attended Town T State School in 2011 and 2012.  The evidence before me did not disclose why Town T State School was preferred over Town I State School from years 2011 and 2012.  The closest the material comes to any explanation is paragraph 54 of the mother’s affidavit of 21 December 2012 where she said:-

   The [Town L] school took him and allowed him to repeat grade 3.  There was still no remedial teaching available in [Town L].  I became concerned and re-enrolled him in [Town T] by agreement with [the father] in 2011. 

3. Her affidavit continued:-

   There was still no remedial teaching available in [Town T] but I became aware in the latter part of this year that there is remedial teaching available at the [Town I] school in 2013.  It is for this reason and for this reason only that I re-enrolled [B] at the [Town I] school for the 2013 academic year as I believe it to be in his best educational interests.  [B’s] [Town T] teacher, [Ms S] recommended that I re-enroll [B] in [Town I] in 2013.

1. At the initial hearing of this matter before me on 29 January, it became apparent that there was little, if any, material to support the mother’s contention that Town I represented a better educational option for B than town T.  I therefore permitted the mother to file further material and adjourned the matter for further hearing before me on 6 February.  In the interim, her solicitor made written enquiry of both the Town I State School and Town T State School.  In his response, the principal of Town I identified that there are 33 students enrolled in the school in 2013, that there are 13 children in years 5-7, however B is the only child in year 6.  He identified that B has not been enrolled as a child experiencing learning difficulties and he has no information or documentation in relation to any learning difficulties.  He further declined to comment on any possible advantages/disadvantages of the student/teacher ratio that applies at his school as opposed to the Town T State School.  The response from Town T State School did not address the questions posed of it. 

2. The father’s case did not support the assertions of the mother as to either the circumstances which saw her change B’s enrolment, or the benefits of Town I over Town T.  Exhibit 3 to his affidavit sworn 22 January 2013 was an e-mail communication from Ms P of Town T State School in which she advised the father in part:-

   I have been in contact with [B’s] former teacher [Ms S].  She was his teacher for first semester 2012 and during that time only had one parent meeting with [the mother].  She informed [the mother] that she was happy with his progress at [Town T] State School.  At no time did [Ms S] recommend that [B] should return to [Town I].  [Ms S] has had no professional contact with [the mother] regarding [B’s] schooling at all during semester 2…. (Original emphasis)

3. In his subsequent affidavit of 6 February 2013, the father exhibited e-mail correspondence from Ms S herself.  She said:-

   I was [B’s] teacher for semester 1, 2012, when he was in year 5 at [Town T] State School.

   Socially, he had settled well at this school, had made friends and was well liked and respected by his peers.  He had previously attended several schools and did have some issues with some areas of his learning.  He was motivated to learn and worked very hard in the class room setting. 

   I had one parent/teacher meeting with his mother early in term 1 where she conveyed concerns regarding his learning.  At another meeting early term 2, I was able to assure her that he was showing progress, however, he (sic) attendance records made things difficult for him and he often had to catch up on tasks on his return to school.  I enjoyed teaching [B] and found him to be a compliant, willing student with a creative mind. 

   …From the commencement of semester 2, I no longer had any dealings with [B] or his mother in a professional capacity.  His new teacher was [Ms Q].  At no time did I make a professional recommendation that he be moved from [Town T] State School to attend [Town I] State School so he would receive more “one on one” attention. 

   However, in December, I recall having a conversation at IGA with [B’s] mother who told me, in his presence, that she was transferring him to [Town I] State School in 2013.  I commented to [B] that he would be missed at [town T].  I believe his mother said it was easier for her to get him to school and mentioned the buses.  She asked me what [Town I] was like and I did tell her that the principal who had been (sic) for the previous 12 months was well respected.  These comments were conveyed in a positive, reassuring way as [B] was listening.

   I do not consider this conversation, held at the local supermarket, to be any type of professional recommendation, nor would I ever presume to make such a recommendation when my professional contact with the student had ceased 6 months earlier.

4. I have in evidence before me both the semester 1 and semester 2 reports for B’s last year at Town T.  The semester 1 report identifies generally good effort however noted “he needs to continue working hard on basic skills in the areas of maths and writing.”  The semester 2 report tended to suggest an increase in effort, noted that he tries very hard in class and is always focussed, and specifically reported “[B’s] writing skills have improved this semester, and he should be very proud of his efforts.”

5. Moreover the father annexed to his affidavit of 22 January 2013 two items of correspondence with the principal of Town I State School, Mr U.   From those it is clear that at Town I, B would be in a joint class room of 13 children comprising the total enrolments for years 5, 6 and 7.  The class is taught by Mr U four days with another teacher taking it for one day a week, and further there is a teacher aide that would be present in the room for four days a week.  In that class of 13, there are four children who experience some learning difficulties.  The teacher aide utilises her time with those children who are experiencing difficulty, particularly in reading and maths.  She would divide her time evenly amongst those experiencing difficulties.  Mr U was unable to be more specific than to say that the teacher aide would share her time with the children who require it. 

6. Whilst no doubt the circumstances and reasons for B’s enrolment in Town I will be a matter to be explored at trial, on the material that is before me on an interim basis, I cannot conclude that there was any soundly based educational imperative for the move from Town T to Town I School.  To the extent that the material allows me to conclude either way, it appears as though Town T – a much larger school – was proving to be good for B, who was, at least in relation to English, improving.  True it is that in the mother’s material there are other reasons identified which might justify B’s going to school at Town I – including his enthusiasm for it, the fact that it is closer to his home, and the fact that his attendance at Town T would cost $20.00 per week – but in both her affidavits, the mother expressly identified that the sole reason for her move of B’s enrolment was not those, but rather the educational advantages which Town I was said to have.  As I have indicated, at least on an interim basis, I cannot conclude that those advantages in fact exist.

7. In his outline of argument, Mr Fellows, counsel for the father, sought to draw an analogy between the mother’s unilateral decision in relation to B’s school enrolment, with an unauthorised relocation.  He relied upon the Full Court Decision of C and S [1998] FamCA66 which identified that the interests of any child should be determined by a Court without the impediment of the situation of recent development.  On the other hand, the mother’s solicitor, Mr Lee, urged upon me that since B has now commenced at Town I, and is in his second week, he ought to at least wait to the end of term 1 before any change of school.  Whilst in other circumstances that submission may carry weight, here, not only did the mother make the decision to enrol B in Town I without any consultation with the father, but since December 2012 she has been aware of his opposition, to the point where proceedings were initiated in this Court seeking its assistance to resolve the impasse.  Notwithstanding that, and her knowledge that the Court would resolve the issue one way or the other in January or early February, the mother persisted with the enrolment in Town I.  Whilst I must, and do, remain focussed upon the consideration of what is in B’s best interests, I do say that the mother appears to be seeking to obtain a forensic advantage by virtue of her unilateral action.

8. I am conscious that there may be some dislocation in B’s life if he returns to Town T State School.  However I am of the view that any such dislocation will be minimal and of short duration.  He was doing well at Town T, and indeed improving.  I am of the view, on the material before me, that it is in his best interests that he continues schooling at Town T, and I will so order.

Independent Representation

1. The mother sought an order that an Independent Children’s Lawyer be appointed.  I invited her solicitor to identify which criteria of re K (1994)FLC 92-461 he relied upon.  Although initially relying upon the allegations of poor parenting mounted by the father against the mother, by further written submissions dated 5 February 2013, Mr Lee relied upon 3 additional matters, namely the intractable conflict between the parties, the alienation of B from the father and his new partner, and the strong views being expressed by B.  Not only do these matters – individually or collectively – not meet the re K criteria, even if I was not bound by re K, I would not hold that they are of such moment as to justify the appointment of an Independent Children’s Lawyer. I decline to make any such order. On the other hand it does seem appropriate that the wishes of B, and the general family dynamics, be the subject of a Family Report under section 62G(2) of the Family Law Act.

PROPERTY MATTERS

1. The father seeks orders for the sale of the former matrimonial home at Town I.  The mother seeks an order that the property be listed for sale no later than two months from the date of order, and that within three months of order she, in essence, gets it to a marketable condition.

2. In the event that the property does not sell by private treaty within three months from the date of orders, the father seeks orders that it be auctioned within six months of the date of orders, with, if necessary, a further auction seven weeks later.  The mother on the other hand seeks orders for auction of the property if it does not sell within six months of being listed (ie. eight months from the date of order) but has no set of orders proposed in the event that it is passed in.  There is a further minor dispute between the parties as to whether it should be listed with one or three real estate agents, and how the reserve price ought to be set for the auction.  Finally, the father seeks an order that any sale by private treaty cannot be for less than the amount required to pay out the mortgage, all other encumbrances and the expenses of sale.

3. It appears to be common ground that the gardens and surrounds of the former matrimonial home were substantially affected by cyclone Yasi.  There is a slight dispute as to the size of the garden, but it is clear that it is approximately two hectares.  The father deposes to the fact that he was responsible for the garden’s upkeep prior to separation, and initially continued to mow the lawns.  However that ceased and it seems clear that without that effort, and with the impact of cyclone Yasi, the gardens have deteriorated.  Exhibit 11 to the applicant father’s affidavit of 5 December 2012 are some “drive-by” photos taken on 19 October 2012.  They tend to show a property in great need of maintenance and tidying.  Additionally, at paragraph 100 of that affidavit, the father refers to insurance documents which he has obtained as evidencing the lack of cleanliness and maintenance of the property.  He identified that in order for the home to become saleable it will need to have the following done:-

   (i)       removal of hoarded rubbish, junk and dirt from home

   (ii)thoroughly clean home including internal and external walls, oven, window, ceilings, bathrooms

   (iii)     complete garden overhaul and remove dilapidated bus

   (iv)replace carpet, wallpaper, broken kitchen cupboards and bedroom door

   (v)      replace wiring in roof due to damage by rodents

   (vi)     clean gutters, empty garage, clean and hose patio

   (vii)may have to replace perspex in bathrooms if impossible to remove years of soap scum

4. The father went on to say that it was his view that the mother “will not be able to clean the property up to make it marketable to a third party” in consequence of which he seeks an order that the parties be entitled to bid at the auction of the property.  None of this appears to be contradicted by the mother.  In her affidavit of 21 December 2012 the mother did say that as at the date of swearing her affidavit all the work associated with recovering from cyclone Yasi was “not quite complete.” She went on to say “I have had enormous difficulties trying to co-ordinate builders and tradesman, insurance assessors and the like with no assistance from [the father].  I have been successful to the extent that the house in almost ready to market.”

5. The mother also deposed as follows in that affidavit of:-

   60 I am very concerned at the extremely depressed nature of the market and that is why I seek a period of grace from the making of these orders to finalise the work necessary to get the house into a properly marketable state to maximise the resale value.

   61I am aware from discussions in the community that the region is extremely depressed and market values are low… 

   This was not traversed in the father’s affidavit of 22 January 2013, and I therefore accept it.

6. Both parties accept that the property needs to be sold.  The issue for my determination is to how the coercive powers of this Court ought be used to effect that sale, in a way which is fair and just to both parties.  In the end, I am of the view that, in broad terms, the wife’s interim property orders reflect a fairer outcome for both parties, in that they provide a realistic opportunity for the wife to undertake the necessary repairs and maintenance, and indeed obliges her to do that work within three months.  On the other hand, given the concession of both parties that the property must be sold, and the mounting arrears in mortgage payments and rates, I think that a period of eight months in which a private sale could be effected is simply too long.  I think that if the property is not sold by private treaty within six months from the date of these Orders (therefore allowing it to be marketed over the winter or dry season) the property should be sold by auction.  Because the mother’s application is silent as to any orders that should follow in the event that the auction is unsuccessful, I therefore propose to make a further order as proposed in the amended interim orders handed up by the counsel for the father at paragraph (1)(e)(iv).  I further propose to order that either party be at liberty to bid at any auction.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 7 February 2013.

Associate: 

Date: 25 February 2013.