Nettles and Nettles (No 2)

[2016] FamCA 130

FAMILY COURT OF AUSTRALIA

NETTLES & NETTLES (NO 2) [2016] FamCA 130

FAMILY LAW – PROPERTY – Interim distribution – where husband in custody – where serious allegations of violence by the husband – where overwhelming contributions by the wife – discussion as to applicable principles – where appropriate to make interim property orders as sought – husband to have liberty to apply on short notice.

Family Law Act 1975 (Cth) ss 75, 79

Harris & Harris (1993) FLC 92-378
Nettles & Nettles [2016] FamCA 13
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Nettles

RESPONDENT: Mr Nettles

FILE NUMBER: PAC 5944 of 2015

DATE DELIVERED: 3 March 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 January 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: McPhee Kelshaw

Orders

1. That within 14 days of the date of personal service of these orders on the husband the husband sign all documents necessary to transfer his right title and interest in the property at J Street, F Town (“the F Town property”) to the wife.

2. That within 14 days of the date of personal service of these orders on the husband the husband sign a discharge authority authorising the Commonwealth Bank to discharge the mortgage secured on the F Town property.

3. That in the event that the husband fails to comply with the two proceeding paragraphs within 14 days of the date of personal service of these orders on the husband that the Registrar or a Deputy Registrar of the Court be appointed pursuant to section 106A to execute the Transfer and/or Discharge Authority referred to in the preceding paragraphs in the name of the husband and to do all acts and things necessary to give validity to the operation of such transfer or authority.

4. That within 28 days of receipt of the signed Transfer referred to in the preceding paragraphs the wife shall do all things necessary to list the F Town property for sale and thereafter the wife shall do all things and sign all documents necessary to sell the F Town property and to apply the proceeds of sale as follows:-

   (a)     In payment of the agent’s fees and commission;

   (b)     In payment of legal costs of the sale;

   (c)     In discharge of the mortgage to Commonwealth Bank;

   (d)     In payment of rate adjustments;

   (e)     As to 20 per cent of the balance then remaining to be held by the wife’s solicitors in a controlled monies account in trust for the parties;

   (f)     As to the balance remaining to the wife or as she may otherwise direct in writing.

5. That for the purpose of implementing the sale of the F Town property referred to in the preceding paragraph the following shall apply:

   (a)     The listing price, sale price and (if applicable) auction reserve price of the F Town property shall be as nominated by the wife;

   (b)     The real estate agent to conduct the sale of the F Town property shall be Lister and Cole or such other real estate agent nominated by the wife;

   (c)      The wife shall be solely responsible for determining the method of sale of the F Town property including whether the F Town property is sold by private treaty or auction;

   (d)     The solicitor acting in respect of the sale of the F Town property shall be McPhee Kelshaw or such other solicitor or licensed conveyancer nominated by the wife;

   (e)     The wife shall do all things necessary to make the F Town property available for inspection by potential purchasers at all reasonable times;

   (f)      The wife shall do all things necessary to ensure the F Town property is presented to potential purchasers in a neat and tidy condition.

6. That the wife keep all necessary records to evidence the manner in which the F Town sale proceeds have been applied and within 7 days of any request in writing from the husband (or his solicitors) the wife shall forward a copy of such records to the husband or his solicitors.

7. That within 14 days of the date of personal service of these orders on the husband the husband sign all documents necessary to transfer his right title and interest in the Japanese motor vehicle to the wife.

8. That in the event that the husband fails to comply with the preceding paragraph that the Registrar or a Deputy Registrar of the Court be appointed pursuant to section 106A to execute the document(s) referred to in the preceding paragraph in the name of the husband and to do all acts and things necessary to give validity to the transfer.

9. That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

10. That in the event that either party refuses or neglects to execute any deed or instrument within fourteen (7) days of being requested to do so then the Registrar or a Deputy Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

11. That personal service of the orders made herein be effected on the husband as soon as practicable.

12. That the husband have liberty to apply in respect to these orders on short notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nettles & Nettles (No 2) 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 PARRAMATTA

FILE NUMBER: PAC 5944  of 2015

Ms Nettles

Applicant

And

Mr Nettles

Respondent

REASONS FOR JUDGMENT

1. On 22 January 2016 Reasons for Judgment were delivered in relation to interim parenting arrangements for the child B born in 2009.

2. Orders were made on 18 January 2016 as a follows:

   a)That the mother have sole parental responsibility for the child B born in 2009;

   b)That the child live with the mother; and

   c)That the child spend no time with and have no contact with the father.

3. The background to the matter, in particular as to urgency, in relation to parenting was set out in those reasons: Nettles & Nettles [2016] FamCA 13.

4. In her interim application the wife sought interim orders as to the sale of the former home at J Street, F Town and other orders. Judgment was reserved.

5. For the reasons set out in the previous judgment, that do not need repeating here, it is appropriate to deal with the wife’s property application on an ex parte basis.

Context

1. The wife seeks final orders that the home be sold at J Street, F Town and that she be entitled to the whole of the net proceeds of sale. The wife had previously ended the joint tenancy of herself and the husband, the property now held as tenants in common in equal shares.

2. On an interim basis she seeks orders that in summary provide that:

   a)The husband transfer his interest in the property to her and that he sign a discharge authority to facilitate discharge of the mortgage on sale;

   b)In default of the husband signing the necessary documents the Registrar sign same under s 106A of the Act;

   c)That the wife sell the property and apply the net proceeds of sale:

   i)In reimbursement of property outgoings paid by her since 30 April 2015;

   ii)As to $40,000 to the wife’s solicitors on account of the wife’s costs; and

   iii)In payment of the balance to the wife or as she may direct;

   d)That the husband do all things necessary to transfer to the wife the Japanese motor vehicle and in default of the husband signing the necessary documents the Registrar sign same under s 106A of the Act.

The mother’s evidence

1. The parties commenced cohabitation in December 2007 and married in 2008. There is one child, B. The parties separated on 30 April 2015.

2. At cohabitation the wife had assets as follows:

   a)Home at K Street, L Town having a value of about $460,000 and subject to a mortgage of $97,000;

   b)Furniture and contents;

   c)Superannuation of about $40,000; and

   d)Motor vehicle.

3. The wife was at that time in full time employment.

4. At cohabitation the husband had no assets of any significance and had debts to the State Debt Recovery Office.

5. After cohabitation commenced the wife paid mortgage and outgoings on her home and most of the parties’ living expenses. The husband was studying at TAFE and receiving Centrelink benefits. The wife purchased a car for the husband at a cost of $2,000 and later redrew on her mortgage to purchase another car for him at a cost of $17,500.

6. After about 12 months the husband worked for the Salvation Army and was paid a salary of about $25,000, paid to his account and supplementary fringe benefit payments that were paid to the wife’s mortgage account.

7. In November 2009 the wife commenced paid maternity leave, reducing to half pay in 2010. The wife reduced mortgage payments to interest only. The car was traded and a larger sedan was purchased for $55,000 funded mostly by redraws on the wife’s mortgage.

8. The wife struggled to meet expenses and over a period redrew funds of about $29,300 from her mortgage to meet expenses and debt. Notwithstanding, in October 2010 the wife funded by further redraws and her savings the purchase of a foreign car for the husband at a cost of $21,000. This was later sold for $28,000 with funds paid into the then joint home loan account.

9. In January 2011 the husband commenced to pay his salary to the parties’ joint account to help meet expenses but mostly his withdrawals exceeded his deposits.

10. In April 2011 the parties jointly purchased the home at J Street F Town for $640,000. Initially the purchase was funded by a bridging loan secured over the wife’s property and the new home. In June 2011 the wife’s L Town property sold and the loan secured over the present home was reduced to about $308,600.

11. Unknown to the wife the husband later was incurring substantial credit card debt and had taken out a personal loan for $15,000 with statements sent to his work address. By early 2014 the husband admitted to the wife that he was using illicit drugs. The wife paid out his personal loan in the sum of $20,048 and paid out his credit card debt of about $3,200. At this time the wife redrew $11,210 to purchase the husband a Toyota car, which was later sold by the husband for $10,000. He retained those funds.

12. The circumstances of violence and the abhorrent conduct of the husband post separation are set out in the earlier Reasons for Judgment. He remains in custody.

13. The wife after separation continued to pay property outgoings and mortgage payments although she had left the home in fear for her life and that of her children.

14. The wife estimates that the home may sell for $800,000, with the net proceeds being about $500,000. The wife also seeks to sell the sedan. Otherwise the pool of assets includes the wife’s superannuation, some personalty and about $36,000 in superannuation held by the husband.

15. The wife has fears that the husband may seek to burn down or damage the home that would negate any insurance cover as it is in his name as tenant in common with the wife. Thus she seeks a transfer of the home to her to facilitate sale.

Interim Property

1. The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.

2. Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.

3. In Strahan (supra), the Full Court said:

   132. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

4. Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth).

5. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.

6. It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said (at 79929-79930):

   As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.

7. In Strahan (supra), the Full Court said at [132]:

   … regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

8. It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.  Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.

9. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.

10. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

11. This is such a circumstance.

12. The assets of the parties are discussed above. It is clear that the contributions will favour the wife most substantially as will the relevant s 75(2) factors particularly the issue of future child care for the child of the marriage.

13. However there are aspects as to the husband’s contribution entitlement that will require determination.

14. It is clear that the home should be sold without delay and that orders facilitating the wife selling same and the car should be made as asked.

15. In the circumstances and heeding the caution needed in relation to an application such as this the wife should be entitled to receive 80 per cent of the estimated net proceeds of sale. On her figures that would leave about $100,000 to be the subject of final division between the parties.

16. In all the circumstances such orders would be appropriate.

17. Orders should be served on the husband before they become operative and where the application is dealt with in his absence, he being in custody, he should be granted liberty to apply in respect to these orders.

18. Orders will be made accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 March 2016.

Associate: 

Date:  3 March 2016