Merrick and Merrick

FAMILY COURT OF AUSTRALIA

MERRICK & MERRICK

[2018] FamCA 56

FAMILY LAW – PROPERTY SETTLEMENT –Where there are two children of the marriage – Where the husband is 65 years of age – Where the wife is 45 years of age – where the duration of the relationship is 10 years – where the husband made overwhelming financial contributions – where the wife made overwhelming parenting contributions – where the value of the real property is unlikely to exceed the loan secured by mortgage over it – where the bank has commenced proceedings to repossess the property due to mortgage default – where the real property is to be sold – where the wife resides in the property – where it is ordered that the wife vacates the property – where the husband is appointed as the trustee for the sale of the property

Family Law Act 1975 (Cth)

Bevan v Bevan [2013] FLC 93-545
Hepworth v Hepworth (1963) 110 CLR 309
Mallet and Mallet (1984) 156 CLR 605
Stanford and Stanford (2012) 247 CLR 108

APPLICANT:

Ms Merrick

RESPONDENT:

Mr Merrick

FILE NUMBER:

PAC

1983

2008

DATE DELIVERED:

9 February 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

29 and 30 November 2017 and 1 December 2017

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

SOLICITOR FOR RESPONDENT:

Ms Simone Barbour, Anthony Black Family Law Services

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous orders are discharged.
The Respondent, Mr Merrick, is hereby appointed trustee for sale of real property situated at B Street, Suburb C in the State of Queensland (the Suburb C property) and, by this Order, is authorised to:
(a)take reasonable steps for the purpose of preparing the Suburb C property for sale and facilitating the sale of the Suburb C property; and
(b)obtain quotes for the work nominated by Mr D in writing as being the minimum required to prepare the Suburb C property for re-listing for sale; and
(c)to accept such quotes, up to the amount of $5,000.00 in total, for the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale; and
(d)sell the Suburb C property on such terms and conditions as recommended in writing by Mr D, subject to the consent of the mortgagee as required to obtain the release of the mortgage.
Mr D of E Real Estate Agency, F Town is appointed as the agent for the sale of the Suburb C property.
The Suburb C property shall be listed for sale with Mr D as soon as practicable and upon Mr D’s advice that it is in a state which is suitable for showing to prospective buyers.
If necessary, the parties sign any Listing Authority within seven (7) days of receiving it from E Real Estate Agency.
The Applicant, Ms Merrick, and all of her invitees vacate the Suburb C property within twenty-one (21) days from the date of this Order and, thereafter, the Applicant is restrained and an injunction issue restraining her from returning to live in the Suburb C property pending its sale.
Upon vacating the Suburb C property the Applicant, Ms Merrick, shall:
(a)provide all copies of all keys relating to the Suburb C property (whether in respect of doors or gates) to Mr D; and
(b)provide any access code for the Suburb C property to Mr D; and
(c)leave the Suburb C property and the house on it in clean and tidy condition; and
(d)remove or cause to be removed from the Suburb C property any unregistered motor vehicles or vehicles that are not in working order.
After the Applicant, Ms Merrick, vacates the Suburb C property, the Respondent, Mr Merrick, is authorised to dispose of any property or chattels left by her at the Suburb C property in a manner he considers reasonable and, in the event that any such property or chattels are sold, the Respondent is at liberty to apply the sale proceeds obtained toward the costs of preparing the Suburb C property for sale.
During the time before she and her invitees vacate the Suburb C property, the Applicant, Ms Merrick, shall:
(a)upon receiving no less than 12 hours’ notice, facilitate an inspection of the Suburb C property by Mr D so as to enable him to identify those works which are the minimum required to be done to prepare the Suburb C property for re-listing for sale; and
(b)within 24 hours of receiving a request for access by the same, facilitate entry to the Suburb C property by any tradesman, organised to provide a quote for the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale; and
(c)within 24 hours of receiving a request for access by the same, facilitate entry to the Suburb C property by any tradesman authorised to complete the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale.
Unless a different agreement is reached between the Respondent (in his capacity as trustee for sale of the Suburb C property) and the Commonwealth Bank of Australia (whose loan facility is secured by mortgage registered on the title to the Suburb C property) as to the payment of the costs associated with the sale of the Suburb C property, the proceeds of the sale of the Suburb C property shall be paid in the following manner and priority:
(a) to discharge the mortgage secured over the Suburb C property; and then
(b)to pay the agent’s commission and advertising or other expenses, if any, payable on the sale; and then
(c)to pay the conveyancing expenses in relation to the sale of the Suburb C property; and then
(d)to reimburse the Respondent, Mr Merrick, for the costs of the work nominated by Mr D as being the minimum required to prepare the Suburb C property for re-listing for sale provided that such reimbursement will only occur in an amount of up to $5,000.00 in total; and then
(e)to pay any monies remaining to the Applicant, Ms Merrick.
Save as is otherwise provided for in this Order, the parties have the sole right, title and interest to and in all other property which, at the date of this Order, is in their possession, title or name and each party shall be solely liable for and indemnity the other against any personal liabilities in their sole name.
The Respondent, either personally or by his legal representative, has leave to provide the Commonwealth Bank of Australia with a copy of this Order.
In the event that either party fails to sign the Listing Authority or any other document necessary to implement the terms of this Order within 14 days of a written request to do so, then, upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal, a Registrar of the Court is appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to sign any such document in lieu of the non-signing party.
The costs of and incidental to a request and production of documents to the Registrar, as provided for in paragraph (13), shall be borne by the defaulting party without further order and may be fixed by the Registrar or Deputy Registrar and, thereafter, shall be recoverable from the defaulting party by the other party as a debt.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merrick & Merrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAC 1983 of 2008

Ms Merrick

Applicant

And

Mr Merrick

Respondent

REASONS FOR JUDGMENT

The disastrous financial circumstances in which the parties to this proceeding find themselves are such as to render a particularly in-depth analysis of the events which contributed to the same unnecessary to the primary task of determining whether it is just and equitable to make an order altering their interests in property.
This is because:
a)the only significant property of the parties is real property located at B Street, Suburb C in the State of Queensland (the Suburb C property); and
b)the Suburb C property secures borrowings from the Commonwealth Bank of Australia, which (together with interest and costs) are now in an amount of no less than $587,138.43; and
c)the parties are in default of the loan obtained from the Commonwealth Bank of Australia; and
d)on 28 June 2017, the bank obtained a default judgment against the Respondent, by which he was ordered to pay $587,138.43 (which included $433.22 in interest and $2,601.00 costs); and
e)interest is now accruing on the judgment debt; and
f)the current value of the Suburb C property, as estimated by Mr D (a local real estate agent to whom the task of attempting to sell the property has previously been entrusted by interim order), is in the vicinity of $549,000.00.[1]
[1] Affidavit of Mr D filed 28 November 2017.
Whilst the bank has not yet obtained a judgment against the Applicant (who is the registered owner of the Suburb C property), such proceedings remain on foot.
Whilst the Applicant’s case involves the contention that the Respondent has secreted property in Country G, I am not persuaded on the evidence before me of such contention. Nor am I persuaded that he has the financial capacity to make any payment by way of spousal maintenance.
Unfortunately for the parties, the reality of their current respective financial situations is dire.

Brief factual overview

The Applicant, who was born in 1972 and is currently 45 years of age, has the care of the parties’ two children: 11 year old H[2] and nine year old J.[3] She has undertaken this care without the day-to-day support of the Respondent.
[2] Born in 2006.
[3] Born in 2008.
The Respondent, who was born in 1952 and is currently 65 years of age, recently returned to Country G. He did so after obtaining the discharge of a Departure Prohibition Order by paying his outstanding child support (in an amount of approximately $27,000.00) to the Applicant. She has previously obtained orders which have permitted her to sell a Motor vehicle 2 and retain the sale proceeds of the same. Despite this, her evidence at trial was that the motor vehicle remains unsold. There is no issue between the parties that the Applicant retain this motor vehicle as her property.
The parties commenced their cohabitation in Australia in around April 2003[4] or late June 2003.[5] They moved to live in Country G in about April 2005 and married in that country in 2007. Their children were born in 2006 and 2008 respectively.
[4]According to the Applicant.
[5] According to the Respondent.
The Applicant has two now adult children from her first marriage: Ms K,[6] who was about eight years of age when the parties started to live together and Mr L,[7] who was about seven years of age when the parties started to live together. Ms K and Mr L lived with their mother and the Respondent until the move to Country G in about April 2005. At that time, Ms K accompanied them to live in Country G and Mr L went to live with his father. Mr L later travelled to Country G during school holiday periods.
[6] Born in 1995.
[7] Born in 1996.
Whilst the Respondent has two children from a previous marriage, neither of these now adult children lived with the parties at any time during the course of their cohabitation.
The parties first separated in about mid-March 2008, when the Applicant (then pregnant with their second child) travelled with Ms K and H to Australia. She subsequently commenced property settlement proceedings and the parties appeared at Court on 5 June 2008. However, they subsequently reconciled their relationship and entered into a Parenting Plan: the proceedings were discontinued.
The Respondent says their reconciliation involved an agreement that they would establish a home in Queensland and that he would travel regularly between Country G (where he remained employed) and that home. Initially, the parties based themselves in N Town (where they rented a fully furnished three-bedroom home and obtained the use of a car) as it provided the opportunity for direct flights to Country G.
At or around that time, it seems that the Respondent was working as a senior manager; an aspect of his remuneration arrangement was that his employer paid the fees associated with Ms K’s attendance as a boarder at M School and he returned home to N Town for durations of between a long weekend and a week, every five or six weeks.
It seems that, after spending about six months living in N Town, the parties agreed to move to live in F Town. In furtherance of this agreement, they visited F Town at about Easter 2009 to locate rental premises and, thereafter, moved to live there. They were later joined by the Applicant’s ex-husband and Mr L. It seems that Mr L and his father moved to live in the self-contained accommodation that was part of the rental premises occupied by the parties and their children. Ms K then ceased to attend M School and instead completed her senior education (Grades 11 and 12) at O School in F Town. Mr L also attended that school.
There was no real challenge to the Respondent’s evidence that, via his salary entitlements, his employer paid the school fees for both Ms K and Mr L to attend at O School.
As I understand the Respondent’s evidence, he commenced employment in the role of general manager for P Ltd in Country G in about September/October 2009. The employment required that the Respondent be absent from Australia for longer periods than had been the case in his previous employment. In fact, it seems that after he started to work for P Ltd, the Respondent only returned to Australia for about one week every three to four months and for about 10 days at Christmas time.
The obvious consequence of the Respondent’s absence from Australia (due to his work commitments) is that, from about mid-March 2008 onwards, the Applicant performed the overwhelming majority of the parenting of their children without his day-to-day support and assistance. However, the Respondent provided all of the financial support to the family unit as it was then constituted by the Applicant and their children. He also contributed financial support to the Applicant’s children from her previous marriage and is highly likely to have subsidised, in some way at least for some periods of time at least, some of the living expenses of the Applicant’s ex-husband.
I accept that, in January 2013, the Respondent was promoted to the position of CEO of P Ltd. I accept that, in the period from mid December 2012 until the end of December 2013, his time in Australia occurred as follows:
a)from 22 December 2012 to 7 January 2013; and
b)from 28 February 2013 to 1 March 2013; and
c)from 20 April 2013 to 23 April 2013; and
d)5 July 2013 to 7 July 2013; and
e)for some period when the Applicant had a car accident; and
f)from 25 August 2013 to 3 September 2013 (during which time the purchase of the Suburb C property occurred); and
g)from 11 October 2013 to 14 October 2013; and
h)from 22 December 2013 to 31 December 2013.
As noted earlier, the Applicant is the registered proprietor of the Suburb C property. It was purchased in August 2013 for approximately $680,000.00. The parties borrowed about $560,000.00 from the Commonwealth Bank of Australia for this purpose. According to the Respondent, he contributed the balance of the purchase price (of no less than about $120,000.00) from savings he had accumulated from his income.
In either late 2013 or early 2014, each party learned that they were HIV positive. Each contends that the other was the source of this virus. Resolution of these competing contentions is unnecessary to dispose of the current application.
The Applicant asserts that the parties separated in January 2014. Whether this is the case or not does not seem to me to matter much because the Respondent’s evidence is that, when he arrived in F Town on 9 February 2014, the Applicant told him he was not allowed to attend at the Suburb C property. The Respondent’s contention is that, at or around this time, the Applicant withdrew the entirety of the funds from their joint bank and deposited the same into a bank account in her sole name. He said he believed the parties had at least $70,000.00[8] in this account and that these funds were of the nature of advance repayments of the loan secured by mortgage over the Suburb C property.
[8] Affidavit of the Respondent filed 12 May 2014 at [91].
I did not understand the Applicant to challenge this assertion. In any event, the property of the parties is such that it is impossible, to cause any adjustment to be made by the Applicant to recognise her post-separation receipt of funds.
On 11 February 2014, the Respondent sent a letter of resignation to P Ltd. His evidence is that, when he told the Applicant of his intention to resign, she told him he needed to continue working because he was on a large salary, she needed the money and it would be ridiculous for him to resign.
All of these contentions may well have been correct, but, by correspondence dated 17 February 2014, P Ltd accepted the Respondent’s resignation. Despite the cessation of his employment, the Respondent returned to Country G a few days later.
He said that, because his contract with P Ltd obligated him to give three months’ notice, his employment as the CEO of that company ended in mid-May 2014. Further, he said that, as at May 2014, his intention was to remain living in Country G because it was cheaper to live in that country than in Australia (where he was not then able to see his children). He also said, at that time, that he intended to do some contract work for P Ltd so he could generate income from which to support himself. He was then also then investigating contract work in the Asia.
Proceedings for both parenting and property settlement orders were commenced in 2014.
The Respondent’s initial position (articulated as long ago as May 2014) was that the Suburb C property be sold or that he have the opportunity to attempt to refinance the borrowings secured by mortgage over it, so as to retain it. He articulated this position because, given the amount of the borrowings and the fact that the Applicant was not engaged in paid employment, it was not realistically possible for her to retain the Suburb C property.
The Applicant’s position from about 2014 and thereafter has been to contend that the Respondent had the financial capacity to meet the loan repayments and/or had access to property in Country G. As I have already outlined, I am not persuaded of this contention at present.
The Respondent says that, on 9 September 2015, he made it known to the court and to the Applicant that his position was that she retain all of the property she then had in her possession (which included the furniture and contents of the Suburb C property, items of jewellery and motor vehicles); that the Suburb C property be sold and that the Applicant receive the entirety of any net sale proceeds of the same.
It seems that, at that time, the Respondent thought there was likely to be little equity in the Suburb C property but hoped that the sale proceeds of the same would be sufficient to repay the loan from the Commonwealth Bank of Australia secured by mortgage over the property and meet the costs associated with its sale.

It seems that the parties’ parenting dispute was resolved by final orders made by consent on 30 March 2016. These orders provide that the children live with the Applicant; that she have sole parental responsibility for major long term issues relating to them and that they spend supervised time with the Respondent at a contact centre at F Town or Q Town for two hours on each day of a weekend when he is present in Australia and has travelled to the contact centre for that purpose. The order provided that the parties share equally in the cost of any supervised time the children spend with the Respondent.
Even if the terms of the March 2016 parenting order are put into effect in the future, it is clear that the Applicant will continue to bear the overwhelming responsibility for the day to day care of the children.

Is it just and equitable to make orders pursuant to s 79(1) of the Family Law Act 1975 (Cth)?

One of the consequences of the parties’ voluntary separation some years ago is that they no longer enjoy the common use of property in which their existing legal and equitable interests were acquired during their cohabitation and subsequent marriage. Another consequence is the cessation of any “assumption that any adjustment to those interests could be effected consensually as needed or desired”.[9]
[9] Stanford and Stanford (2012) 247 CLR 108 at [42].
I accept that, in the circumstances of this case, it is just and equitable within the meaning of s 79(2) of the Act that, pursuant to s 79(1) of the Act, orders altering the interests in property owned by each of them are made.[10]
[10] Ibid at [42].
Given this conclusion, it is necessary to resolve the conflict between the parties about the terms of the orders which are appropriate to reflect properly those matters which, by s 79(4) of the Act, must be considered.

The property of the parties and related issues

The parties do not dispute their existing legal interests in the property and superannuation interests. Neither party asserted the existence of any equitable interest in other property.
As noted earlier, the Respondent asserts that, without his knowledge or consent and between about 20 January 2014 and 10 February 2014, the Applicant withdrew $70,000.00[11] from advance payments made in reduction of the borrowings secured over the Suburb C property and applied them for her own use.
[11] Affidavit of the Respondent filed 12 May 2014 at [91].
Even if his contention is accepted, there simply is no property other than the Suburb C property and the various chattels in the Applicant’s possession or control from which to make any appropriate adjustment. Consequently, I consider it futile and, therefore, unnecessary to consider this aspect of the Respondent’s case any further, particularly where the Respondent’s proposal for the finalisation of these proceedings involves the Applicant retaining, as her property, all of the chattels in her possession or under her control and receiving all of any net sale proceeds following the sale of the Suburb C property.
The conclusion I have reached about how to deal with this contention is the same conclusion I have reached in considering any other asserted post-separation expenditure by either party.
There is not current expert evidence about the value of the parties’ property. Instead, each party has proffered various values for various items. In some cases, the value suggested is as a result of the party’s own investigations about what the item of property might be worth; in the case of the Suburb C property, the Applicant has simply adopted as its current value the amount set as the reserve by the May 2015 Order, whilst the Respondent relies upon the last formal offer made to purchase the property (in May 2017). As it will be sold, there is no utility in further considering the issue of its value.
I find the existing interests of the parties in property of the parties and the asserted value of the same as at the date of trial to be as follows:

Item	Ownership	Description	Wife Value	Husband Value
Assets
1.	Wife	B Street, Suburb C	$636,500.00[12]	$515,000.00
2.	Wife	Jewellery	$47,000.00[13]	$48,000.00
3.	Wife	Motor vehicle 1	$15,000.00[14]	$21,000.00
4.	Joint	Household contents at Suburb C	$25,000.00[15]	$11,000.00
5.	Husband	Household contents Country G	Nominal
6.	Husband	Westpac PNG Account …05	Nominal
7.	Husband	CBA Account …33	$40.00
8.	Husband	Westpac Australia Account …19	$100.00
9.	Wife	Cash at bank remaining from lump sum child support paid by husband in early October 2017 – NAB Account	$5,500.00[16]	$27,000.00 (total of outstanding child support paid)
10.	Wife	Motor vehicle 2	$15,00.00[17]
Superannuation
11.	Husband	ATO Lost Super	$700.00[18]
Liabilities
12.	Joint	Mortgage – CBA (as at 16 June 2017)	$587,139.00
13.	Joint	CBA – interest accruing on default judgment since 16 June 2017	Unknown
14.	Husband	CBA – legal costs of default judgment against Husband	$2,601.00
15.	Wife	CBA – costs of proceedings against Wife	Unknown
16.	Joint	Anticipated costs of sale of Suburb C at commission of 3.3 per cent	$17,000.00
17.	Joint	Anticipated conveyancing expenses	$800.00

[12] Financial Statement of the Applicant filed 30 November 2017.

[13] Financial Statement of the Applicant filed 3 April 2014.

[14] Financial Statement of the Applicant filed 30 November 2017.

[15] Financial Statement of the Applicant filed 30 November 2017.

[16] Financial Statement of the Applicant filed 30 November 2017.

[17]Financial Statement of the Applicant filed 30 November 2017, where the Applicant asserts that she has only a half interest in the vehicle.

[18]I note that the Respondent’s superannuation entitlement is so limited because he earned most of his income in Country G, where such entitlements are not paid.

Whilst the Respondent initially sought that Mr R Merrick be reimbursed the sum of $5,676.00 (being the total of the marketing costs he paid on behalf of the parties for previous failed attempts to auction the Suburb C property), the reality of the current financial situation is such that he did not press this position at trial.
I note that, in May 2014, the Respondent sought that the parties’ jewellery be valued: part of the reason for this was his assertion that the Applicant had possession of a ring which had been bought for $24,000.00.[19] Whilst there is no expert evidence about the current value of the Applicant’s jewellery, I note that she asserted, in a Financial Statement filed on 3 April 2014, that she had jewellery with a value of $47,000.00. Consequently, I have proceeded on the basis that the Applicant has jewellery valued at around $47,000.00.
[19] Affidavit of the Respondent filed 12 May 2014 at [121].
The Respondent had a Westpac Country G account which, as at 6 May 2014, held approximately 164,678 [$CG] (which, at that time, equated to approximately AUD$67,500.00). I accept that such funds were used in his self-support after he could not work due to illness in 2016.
As at May 2014, the Respondent said he anticipated receiving a final payment from P Ltd which, after tax, should be about 50,000 [$CG] (which, as at May 2014, he equated as being about AUD$20,500.00). Given that nearly four years have passed since his asserted right to these funds arose and given his evidence to the effect that the lawyer he engaged to assist him to recover these monies was assaulted, I am not persuaded that his prospects of actually receiving these funds is certain enough to cause me to characterise them as “property”.
I accept that, as at May 2014, the Respondent had only household furnishings and personal belongings in Country G and did not own any other assets in Country G. There is no evidence to suggest any change to this position. I also note that, when he was unable to leave Australia because of the Departure Protection Order, the Respondent stayed at hostels – a fact that is inconsistent with the proposition he has undisclosed property available to him.

The s 79(4) considerations

In considering the relevant matters mandated by s 79 of the Act, it must be remembered that:
a)“community of ownership arising from marriage has no place in the common law”[20]; and
b)there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union;[21] and
c)the exercise of the discretion conferred must not proceed on an assumption that the parties’ interests in property are or should be different from those determined by common law and equity.[22]
[20]Stanford and Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J.
[21] Mallet v Mallet (1984) 156 CLR 605.
[22] Bevan v Bevan [2013] FLC 93-545, [73].
As noted earlier, the financial reality for these parties is such that it does not really matter who did what or who paid for what during their relationship. That being the case, I intend to adopt a very broad-brush approach to my assessment of the relevant statutory considerations.

Considerations

I accept that, during their marriage, the Respondent supported the Applicant financially: for example, he regularly deposited a ‘large amount’ of his salary into their joint Australian bank account, an account to which the Applicant had unfettered access. I also accept that, on occasions when the Applicant’s ex-husband was unable to pay his rent, he assisted him by paying his rental arrears.
I accept that the Respondent’s income provided the family unit with a comfortable lifestyle in that they were able to purchase cars, jewellery, household furniture, gym equipment and expensive clothing and that the Applicant was able to have beauty treatments and plastic surgery. I accept his evidence that about $100,000.00 was spent on furnishing the Suburb C property after its purchase in August 2013 and that a significant sum was spent on window furnishings. Further, jewellery with a value of about $47,000 was purchased for the Applicant.
As noted earlier, the parties purchased the Suburb C property in August 2013. I accept they employed professional cleaners and movers to assist with their relocation from their rental property to the Suburb C property. There was, obviously, a cost associated with this.
Whilst the Respondent was critical of the Applicant’s attitude to home maintenance and care, it is unnecessary to reach a conclusion about such assertions.
As already remarked upon, it is clear the Applicant provided practically all of the children’s care, whatever their absences from the house (whether at day-care, before and after school care and school).
Whilst the Respondent may well have been involved in the children’s care and the ‘usual aspects’ of family life during the periods he was in Australia, it is obvious that his contributions to the same were extremely limited as a consequence of the extremely limited time he was in Australia after about March 2008.
It is uncontroversial that, after separation and until the cessation of the loan repayments in March 2016, the Respondent was responsible for them. Similarly, the Applicant remained the children’s primary carer after separation in the same way she had been before separation.
Given the circumstances of this case, I think it is unnecessary to do more than acknowledge that the Applicant made the overwhelming contribution to the welfare of the family and in the capacity of homemaker and parent and the Respondent made the overwhelming financial contributions to the support of the family unit.
It is also sufficient simply to record that none of the orders proposed by either party will have any effect on the earning capacity of either party.

Relevant s 75(2) matters

The Applicant is 45 years of age. She presently lives in the Suburb C property with the children. She has been applying for some time to receive a disability pension and, as a consequence of that process, has participated in various assessments to ascertain her eligibility. As at the trial, she was in receipt of the Newstart Allowance.
As noted earlier, she has been diagnosed with HIV. There appears to be some uncertainty about the impact of that virus on her current functioning. Given the Respondent’s past history in failing to meet his child support obligations, there is a significant prospect that the Applicant may be asked to meet the children’s financial needs in the future.
As she joined with the Respondent in borrowing about $560,000.00 to fund the purchase of the Suburb C property, she remains liable for any outstanding amount owing to the bank.
The Respondent is 65 years of age. He too has HIV, but there is no evidence to suggest that, at present, such condition adversely affects his capacity to work for remuneration. Whilst he has previously suffered serious illness on two occasions (in April 2014 he spent 10 days in intensive care as a result of contracting a tropical virus and in 2015 suffered from a lung disorder), he appears to have recovered from these.
As at May 2014, the Respondent said that the Applicant was aware that his parents, who lived in the United Kingdom, were wealthy. However, he also said they were not in the habit of providing him with financial support. There is no other evidence to challenge his evidence in this respect.
I accept that the Respondent’s health deteriorated in 2016 (because he ran out of the medication needed to treat his HIV) such that he was unable to work for much of that year. I also accept that he borrowed about $2,500.00 from friends in Country G to enable him to travel to Australia on 14 February 2017.
The Respondent is now employed by S Ltd in T Town, Country G. When he swore his most recent Financial Statement on 29 November 2017, he had been employed by that entity for three days. According to that document, his gross annual income is $89,960.00 (that is, $1,730.00 per week). In addition, his employer will provide him with:
a)accommodation and meet outgoings such as electricity, water and the costs of cable television; and
b)the use of a motor vehicle, together with payment of associated running expenses; and
c)a mobile phone; and
d)limited medical insurance; and
e)limited return flights to Brisbane.
The Respondent has been assessed/agreed to pay $1,115.33 per month by way of child support to the Applicant for their children. He says he has outstanding legal fees in the amount of about $10,524.00. In addition, he borrowed more than $27,000.00 from a Mr U in October 2017 so that he could pay this amount to discharge his outstanding child support liability[23] and secure the discharge of the Departure Protection Order so that he could return to Country G to take up employment. He also owes another friend (Mr V) approximately 30,000 [$CG] (that is about AUD $11,990.00). The Respondent also asserts that he owes 12,000 [$CG] by way of unpaid rent in Country G.
[23] Financial Statement of the Respondent filed 27 November 2017.
I have already expressed my conclusions about the Respondent’s claim against his former employer.
Given the Respondent’s proposal that the Applicant retain the property currently in her possession and receive all of any net proceeds which may arise following the sale of the Suburb C property and my conclusion that there is no evidence to establish that the Respondent owns other property in either Australia or Country G, it suffices, in my view, to record that, despite his age, the Respondent’s financial future appears more promising than the Applicant’s – but only so long as he retains his current employment and manages his health.

Other matters relevant to the form of the orders

In these proceedings, the Court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.[24]
[24] s 81 Family Law Act1975 (Cth).
I am satisfied that the Applicant’s financial situation is such that she is not going to be able to refinance the loan secured by mortgage registered over the Suburb C property. Consequently, I am persuaded that the only way for the parties’ financial interconnection to be severed finally is for the property to be sold. In any event, the Commonwealth Bank of Australia has already commenced proceeding against the Applicant for orders to repossess the Suburb C property.
In fact, the sale of the same was ordered by this Court on 4 May 2015.
I accept the evidence given by Mr D, the real estate agent appointed by such order to sell the property. I accept that, at the time he was appointed as agent for the property, it had already previously been placed with another real estate agent and had already been passed in at auction. I accept that he conducted two further auctions (namely, on 4 July 2015 and 17 October 2015) and that limited interest was shown in the property on each of these occasions.
I accept his evidence that the last “serious offer” to purchase the property was made on 22 May 2017. This offer was for the payment of $515,000.00 cash. I accept that he attempted to contact the Applicant by telephone and sent her a text and, after there was no response to the same, placed a letter into her mailbox on 22 May 2017 to inform her about the offer.
I note that, whilst Mr D visited the property on 24 May 2017, he did not enter the house. However, his first impression was that the property had been abandoned: he said there was long grass growing around two vehicles that appeared to be abandoned; the pool was near empty with green water and a large sliver of wood was missing on the timber front door. From his external observations of the interior of the building, its ground floor was littered with boxes, clothes and furniture. I accept his evidence that the condition of the Suburb C property on that day was such that it was not in a fit state for inspection by any prospective purchaser.[25]
[25] Affidavit of the Respondent filed 1 June 2017 Annexure“JRM13”.
I accept Mr D’s evidence of his opinion that the house will sell; I also accept that such opinion has been formed on the basis of the recent amount of interest he has received about the property
However, I also accept his opinion that, in order to achieve a “fair market price”, the following matters require attention:[26]
a)the pool must be full and crystal clear; and
b)the old cars must be removed from the property; and
c)landscaping, lawn maintenance and gardening are required; and
d)maintenance issues (such as the fence and splintered front door) must be attended to and appropriately repaired; and
e)the house must be presented in a clean and tidy state.
[26] Affidavit of Mr D filed 28 November 2017 at [9].
The Applicant’s evidence before me basically corroborated the evidence given by Mr D about those matters which require attention so that the Suburb C property can be offered for sale so as to maximise its sale price. She agreed that the gardens have not been maintained well; the pool filter has been turned off to avoid the costs associated with running it; there are a couple of holes in interior walls that require repair and the front door requires repair. She also said that the interior of the house requires cleaning (including the carpets) and that pest control needs to be administered. Her evidence is that these matters have not been attended to during her occupation of the property because of her health problems and the absence of the financial capacity to attend to the same.

The Applicant’s evidence about the state of the pool is corroborated by that given by Mr D, who said that, on some occasions during his previous attempts to sell the Suburb C property, the Applicant was unable to present the home at its best due to financial pressure: he said the pool was often green due to a lack of chemicals.[27]
[27] Affidavit of Mr D filed 28 November 2017 at [8].
In addition, the Applicant also outlined her view that there is a crack on the side of the house that needs to be patched and painted and that the exterior of the property facing the road needs to be repainted. Whilst these matters may well require attention, the unfortunate reality of this case is that neither party has the funds available to undertake any particularly costly repairs.
I accept Mr D’s opinion that the Suburb C property now needs to be advertised at a list price and not taken to auction again. It is clear that a realistic list price is required. He suggested a list price of “offers above $549,000.00” and, in the absence of any evidence to the contrary, I accept his opinion. In doing so, I also note that that, as he says, the property has already been listed at a sale price of $599,000.00 for close to two years without securing any offers close to that price. I also accept that listing the property for sale in such a manner is more likely than not to maximise the prospects of selling the property for what Mr D describes as “maximum price.”
I also accept his evidence that, in order to maximise the prospects of selling the Suburb C property, he must be able to obtain access to it (for the purpose of showing it to prospective purchasers) within a two hour time frame and that open houses should be undertaken on a weekly basis (without fail) for four to six weeks.

Why is it proper to order that the Respondent is appointed as Trustee for sale of the property and that the Applicant vacate the same?

The Applicant’s evidence at trial was that she is finding it very hard to maintain house without help; her ex-husband cannot help her since he had a heart attack and there is no one else in the house that can help her with the house at this time.
On 18 September 2014, an interim order was made by consent. This order provided that the parties sell the property and that, pending the sale of the same, the Applicant have sole use and occupancy of the property and not allow anyone other than her and their children to live there. The order also provided that the Applicant would co-operate with the sale process and would keep the house clean and tidy, maintain home and contents insurance and provide the real estate agent with access to the property. The order also provided that pending the sale of the property and upon the occurrence of certain specified events, the Respondent would pay the minimum mortgage repayments and the rates and meet the cost of the renewal of the existing house and contents insurance policy (if the property was not sold before April 2015) and, after the sale, meet rental payments in an amount of up to $280.00 per week provided he was given a copy of any tenancy agreement.
Despite this order, the property remains unsold.
I accept the general thrust of the Respondent’s evidence about the manner in which the Applicant has previously approached the ostensibly agreed to sale of the Suburb C property. I consider it more likely than not that, on occasions, the Applicant proposed to offer the Suburb C property for sale at a price greater than the market indicated was likely to be achieved for it. I also accept as more likely than not that, despite receiving information from the real estate agent on occasion that the parties needed to be realistic in their approach to setting a reserve and/or sale price for the Suburb C property in order to sell it, the Applicant was less than receptive to such suggestion.
After all, she and the children were living in the property and have done so since it was purchased in August 2014. In addition, her adult children from her first marriage and her ex-husband have, at various times, also lived in the Suburb C property.
After an earlier interim order was made by consent, a market valuation of the property was undertaken and given as $670,000.00. The Applicant accepts she set the reserve price substantially higher than this valuation. She also accepts that she did not include the Respondent in any aspect of the decision making process about the reserve price and did not disclose to him the reserve price.
I note that, on 4 May 2015, I ordered that the parties list the property for sale with a reserve price of $636,500.00.
I accept that, as long ago as mid-June 2015, the Respondent’s solicitor outlined his position that he was willing to accept any offer of more than $580,000.00 for the Suburb C property, as this sum would enable the parties to repay the borrowings obtained from the Commonwealth Bank of Australia and meet the costs of sale.
I accept that, when the Suburb C property went to auction on 4 July 2015, no third party bids were made and the only bid made on the day was a vendor bid. I also accept that, in early July 2015, after receiving communication from the real estate agent, the Respondent’s solicitors asked the Applicant whether she would agree to list the property for “offers greater than $600,000”. I accept that, at a conciliation conference on 10 July 2015, the parties appeared to reach an agreement that the list price would be reduced to “offers around $599,000”.
I accept that, in October 2015, the Suburb C property was offered for auction again: this time at a reserve of $604,675.00 (set pursuant to the terms of the May 2015 Order). No bids were made and the only interest seemed to be from a previous owner, who expressed some interest in the low $500,000.00s.
I accept that, on 18 June 2016, the Respondent’s solicitors received communication from the real estate agent by which it was conveyed that the Applicant had told him that she was withdrawing the Suburb C property from the market because she was not prepared to sell it at a loss or be “homeless or destitute”.
As adverted to earlier, the evidence is that, on 12 September 2016, the Commonwealth Bank commenced proceedings in the Supreme Court of Queensland, by which it sought to take possession of the Suburb C property. The bank subsequently obtained judgment against the Respondent, but the Applicant has sought to defend the proceedings.
I note that, on 22 May 2017, the Respondent became aware of interest in the Suburb C property at a price of $500,000.00. I accept that, on 23 May 2017, the real estate agent emailed an offer to purchase the Suburb C property for the amount of $515,000.00. I also accept that the Respondent advised of the necessity to obtain the bank’s agreement to the sale of the property at such a price because the price was insufficient to discharge repay the outstanding loan. I accept that, whilst the Respondent’s solicitor contacted the bank to seek approval for the sale of the property for $515,000.00, the offer to purchase was withdrawn on 25 May 2017 because the prospective purchaser had seen the poor condition of the property.
I also accept that, on occasion, the bank outlined that its position was to obtain a formal valuation of the Suburb C property before considering whether to agree to a sale price which was insufficient to repay the outstanding loan. I also accept the contention that it seems to be more likely than not that the Applicant failed to respond to correspondence relating to valuation or, at the very least, delayed significantly in responding to the same.
Before me, the Applicant’s evidence was that it is simply beyond her capacity to maintain the Suburb C property in a saleable condition. Further, her ex-husband (who currently lives in the property with her) is unable to assist because of his health condition/s and her adult son (who also lives in the property) is unreliable.
I accept the Applicant’s evidence that, whilst her ex-husband had previously assisted with the lawn and garden maintenance, he has not been able to do so since suffering a heart attack and, consequently, lawn and garden maintenance has not been done for “quite a long time”. I also accept that, whilst she has asked her adult son to assist, his help has not been forthcoming.
Further, the Applicant’s evidence before me was that, if she remained living in the property, she would not co-operate with Mr D because she views his actions in an unfavourable light. There is no evidence before me that any other real estate agent is willing to undertake the task of attempting to sell the Suburb C property.
I also note that, despite the terms of the September 2014 Order which authorised her to sell the Motor vehicle 2 and to use the sale proceeds of the same for her financial support, the motor vehicle remains unsold. Consequently, it is an asset the Applicant can sell in order to obtain any funds she may require to move out from the Suburb C property and accommodate herself and the children. In addition, at the time of the hearing, the Applicant had only $5,500.00 remaining from the $27,000.00 paid to her by the Respondent in October 2017. As I understood her evidence, the balance had been spent on food, petrol, accommodation and legal fees associated with her attempts to defend the proceedings brought against her by the Commonwealth Bank of Australia.
Given that the Applicant says she has spent about $21,500.00 in approximately a month before the trial, her evidence that she kept the $5,500.00 aside or separate because she has difficulty tracking her expenditure certainly resonates.
Given the history of the matter as it relates to the attempts to sell the Suburb C property, the Applicant can have been in no doubt whatsoever when she received the $27,000.00 from the Respondent that orders for the listing and sale of that property were inevitable. Consequently, I am not persuaded by the fact that she has available to her no more than $5,500.00 in cash that it is appropriate to permit her to continue to reside in the Suburb C property pending its sale.
Rather, the combination of the Applicant’s attitude to Mr D and his attempts to sell the Suburb C property, the necessity to maintain the property in a clean and tidy manner to maximise the prospect of obtaining the highest price possible for it, the Applicant’s incapacity to maintain the Suburb C property in a saleable condition and the fact that the parties simply do not have the financial resources to be able to fund the necessary cleaning and maintenance works more than once combine to persuade me that it is proper to order that the Applicant vacate the Suburb C property and that the Respondent is appointed as the Trustee for its sale.
In addition, I consider it appropriate and proper that the orders made also make it clear that, in the event the Applicant leaves property at the Suburb C property when she vacates the same, the Respondent is authorised to take whatever actions he considers reasonable to dispose of such property and, if such disposition is by sale, to utilise any sale proceeds in meeting the costs associated with preparing the Suburb C property for sale.

Additional order sought by the Respondent

The Respondent also sought an order by which the Applicant be required to provide to him (or otherwise leave at the Suburb C property) his “personal belongings” which are said to include “Apple Computer, Apple iPhone and accessories, clothes and shoes, boat parts”.
Given the difficulties which have attended the attempts to arrange the sale of the Suburb C property, the absence of further particularity about the Respondent’s personal items, the fact that he has managed to conduct his life without them since the separation in late 2013/early 2014 and that he thereafter continued to live in Country G without such items. I am not persuaded that it is appropriate or proper to make an order in the terms he seeks.
Whilst I appreciate that this decision may cause the Respondent some upset, I consider that the prospects of enforcing any order for the production of these items is so likely to be attended by further difficulties, dispute and costs that he is much more likely to be better off financially by simply replacing any such items than by attempting to have the Applicant produce them.
For the reasons outlined above, I am satisfied that, in all the circumstances of this case, it is just and equitable, appropriate and proper that orders be made in the terms appearing at the commencement of these Reasons to give effect to the conclusions outlined above.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 February 2018.

Associate:

Date: 9 February 2018

[2018] FamCA 56

9 February 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Injunction

Costs

Remedies

Jurisdiction