Oatley and Oatley
[2018] FCCA 1288
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OATLEY & OATLEY | [2018] FCCA 1288 |
| Catchwords: FAMILY LAW – Property – marital relationship – long marriage – dispute about value of assets – modest asset pool – valuation of matrimonial home – addbacks. |
| Legislation: Family Law Act 1975, ss.72(1), 75(2), 79(2), 79(4) |
| Cases cited: Bevan & Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116 Challen & Challen [2007] FamCA 1292. NHC & RCH [2004] FamCA 633; (2004) FLC 93-204 In the Marriage of Hickey [2003] FamCA 395 |
| Applicant: | MS OATLEY |
| Respondent: | MR OATLEY |
| File Number: | MLC 11423 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 8 & 9 February 2018 |
| Date of Last Submission: | 9 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr L Marchetti |
| Solicitors for the applicant: | Kennedy Guy |
| Counsel for the respondent: | Ms C Jenkins |
| Solicitors for the respondent: | Pearce Webster Dugdales |
ORDERS
All previous orders be discharged.
The husband and wife do all such acts and things and sign all such documents as may be required to terminate the selling authority of Real Estate Agent 1 in relation to the sale of the real property known as and situate at Property A in the State of Victoria, being the whole of the property more particularly described in Certificate of Title Volume Folio (“the real property”).
The husband and wife do all such acts and things and sign all such documents as may be required to appoint Real Estate Agent 4 as selling agents for the real property (“Real Estate Agent 4”).
Unless otherwise agreed in writing between the parties on or before
1 June 2018, the parties are to instruct Real Estate Agent 4 to sell the real property by auction with a reserve price of $1 million with the auction to take place on a date to be fixed by Real Estate Agent 4 on or before 7 July 2018.
The parties do all such acts and things necessary and comply with all reasonable directions of Real Estate Agent 4, including but not limited to:
(a)preparing and presenting the real property for sale;
(b)supporting the marketing campaign for the sale of the real property; and
(c)presenting the real property on every open house day.
Without limiting order (5) above, the parties must, when asked to do so by Real Estate Agent 4, do all such acts and things and sign all such documents as may be required including the contract of sale for the real property at the reserve price or at such other price as is agreed between the parties.
In the event that either the husband or the wife refuses to execute any documents necessary to market or option or sell or conclude the sale of the real property including but not limited to affecting discharge of mortgage, transfer of land documents and/or documents necessary to authorise investment of the net proceeds of sale, within seven (7) days of being requested in writing to do so, a Registrar of this Court sign such document or documents on behalf of the defaulting party or parties pursuant to section 106A of the Family Law Act 1975 (Cth).
Pending the settlement of the sale of the real property:
(a)the wife have sole use and occupation of the real property;
(b)within 21 days of this order, the wife pay the outstanding council rates in respect of the real property in the sum of $6,000;
(c)the husband shall meet all instalments on Bank 1 mortgage accounts on an interest only basis;
(d)the husband and the wife equally meet council rates and water rates from the date of these orders;
(e)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(f)neither party shall encumber the real property without consent in writing of the other party.
The conveyancing for the real property is to be undertaken by (name omitted) conveyancing.
Upon completion of the sale of the real property, the proceeds of the sale shall be applied as follows:
(a)first, to pay all outstanding selling agents’ costs and commissions of sale, including any to Real Estate Agent 1;
(b)secondly, to pay all reasonable conveyancing costs and disbursements;
(c)thirdly, to discharge the mortgages to Bank 1 account numbers ending together with any other encumbrances affecting the real property; and
(d)fourthly, the balance to be paid to Kennedy Guy’s trust account on behalf of the husband and wife and thereafter distributed as follows:
(i)53% to the wife and 47% to the husband;
(ii)from the wife’s share, $1,790 shall be deducted being the wife’s half share of the mediator’s fee incurred on 6 September 2017, such amount to be remitted to the husband in a cheque made payable to Pearce Webster Dugdale’s trust account; and
(iii)the husband’s share to be paid to the husband by way of a cheque to Pearce Webster Dugdale’s trust account.
The wife shall otherwise retain, to the exclusion of the husband, all items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control, including but not limited to:
(a)all bank accounts or other investments including life policies, if any, in her sole name;
(b)her Vehicle A;
(c)her Vehicle B;
(d)her shares namely:
(i)240 Z shares;
(ii)1000 Shares Y shares;
(iii)1100 Shares X shares; and
(iv)243 W shares;
(e)the contents of the real property;
(f)the personal effects and jewellery in her possession as at the date of these orders; and
(g)her interests in Super Fund 5.
The husband shall otherwise retain, to the exclusion of the wife, all items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control, including but not limited to:
(a)all bank accounts or other investments including life policies, if any, in his sole name;
(b)his Vehicle C;
(c)his Motor Cycle;
(d)his interests in Super Fund 5 (if any), Super Fund 1 and Super Fund 2, save as provided in these orders; and
(e)the personal effects in his possession as at the date of these orders save for:
(i)the car keys to the wife’s Vehicle B; and
(ii)the 2 gold framed paintings which he acknowledged having in his possession and conceded that the wife could retain
both of which he is to return to the wife within 14 days of these orders.
Each party be solely liable for and indemnify the other and keep the other indemnified in respect of all liabilities in their respective names or encumbering any item of property which they are to retain pursuant to these orders.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be divided equally and the account/s closed;
(c)insurance policies remain the sole property of the policy owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That the base amount allocated to the wife, Ms Oatley, out of the interest held by the husband, Mr Oatley in the Super Fund 2 (‘the fund’) is $182,381.
That in accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the husband’s interest in the fund, the trustees shall pay to the wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there be a corresponding reduction in the entitlement that the husband would have had but for these orders.
Order 16 herein has effect from the operative date.
The operative date for these orders is 4 business days from the date the orders are served on the trustee of Super Fund 2.
This order binds the trustee of Super Fund 2.
Each party and the trustee of the fund have liberty to apply in relation to the implementation of orders 15 to 19 inclusive.
AND THE COURT NOTES THAT:
(A) Pursuant to section 81 of the Family Law Act 1975 (Cth), these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
(B) Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Oatley & Oatley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11423 of 2016
| MS OATLEY |
Applicant
and
| MR OATLEY |
Respondent
REASONS FOR JUDGMENT
This is an application for orders altering the property interests of the parties under section 79 of the Family Law Act 1975 (Cth) (“the Act”).
Summary
The respondent husband is 57 years of age and is employed on a full time basis as a (occupation omitted). He currently earns approximately $130,000 per annum.
The applicant wife is also 57 years of age and is employed on a casual basis as an (occupation omitted). She currently earns $24.70 per hour. She also gave evidence that she is currently working approximately 15 hours per week on average which results in a weekly salary of $370.40.[1] This translates to an annualised salary of approximately $19,000.
[1]Paragraph 3 of the affidavit of Ms Oatley filed 20 October 2017.
This application relates to a very long marriage of over 30 years. The parties married and commenced cohabitation in 1981 and had two children, both of whom are now adults. The parties separated in September 2013 but continued living under the one roof in the former matrimonial home until 23 October 2016 when the husband vacated the former matrimonial home and commenced living in private rental accommodation.
It is common ground that the wife received an inheritance following her father’s death of just over $210,000 in about 2013.
The husband received a redundancy payment from (employer omitted) of just over $41,000 in 2014.
The wife commenced these proceedings in November 2016.
At trial, the wife proposed that:
a)the parties combined assets be split on a 60/40% basis in her favour;
b)the husband pay the Bank 1 mortgage of approximately $16,000 from his share of the proceeds of the sale of the former matrimonial home; and
c)there be a superannuation split in her favour of $182,381 from the husband’s superannuation entitlements.
The husband’s proposal was that there be a 55/45% split in his favour of non-superannuation assets and a 50/50% split of superannuation calculated on the basis of the parties’ superannuation entitlements as at separation.
The parties agreed that in addition to the former matrimonial home, their assets and liabilities include the following
Agreed assets
Ownership
Value
Bank 2 bank accounts
Husband
$1,415
Bank 1 accounts
Husband
$1,683
Shares Y (1,000 shares)
Husband
$3,740
Shares Z (247 shares)
Wife
$19,228
Shares X (1,100 shares)
Wife
$3,344
Shares W (243 shares)
Wife
$9,953
Wife's Bank 1 bank account
Wife
$844
Total agreed assets
$40,207
Agreed liabilities
Ownership
Value
Bank 1 mortgage
Joint
$121,070
Bank 1 mortgage
Joint
$16,648
Rates arrears – Property A
Joint
$6,000
Bank 1 Credit Card
Husband
$1,327
Total agreed liabilities
$145,045
The parties agreed that their superannuation entitlements are as follows:
Fund
Ownership
Value
Super Fund 1 (as at January 2018)
Husband
$156,606
Super Fund 2 (as at January 2018)
Husband
$289,066
Super Fund 4 (as at January 2018)
Husband
$30
Super Fund 3 (as at October 2017)
Wife
$54,000
Super Fund 5 (as at October 2017)
Wife
$12,000
Total combined superannuation
$511,702
Issues in dispute
The parties’ main asset is the former matrimonial home at Property A (“the former matrimonial home”). Neither party has the capacity to retain the said property. It was acknowledged that the former matrimonial home ought to be sold although, as will become apparent, there is a dispute between the parties as to the reserve price for such sale.
In addition, there is a dispute about how an inheritance which the wife received ought to be treated, and whether a significant proportion of that inheritance which has since been used, should be added back into the asset pool for distribution between the parties.
There were also a number of minor disputes as to:
a)funds held by the wife in an uncashed cheque in the sum of $13,637 and which the wife says is nil (“cheque”);
b)the value of the wife’s Vehicle B and whether it was acquired in part with matrimonial funds (“Vehicle B”);
c)value and identity of the wife’s jewellery which the husband says is worth $50,000 (“wife’s jewellery”);
d)whether the husband has an entitlement from Life Insurance, which the husband denies (“Life Insurance”);
e)the value of the husband’s Motor Cycle (“Motor Cycle”);
f)the value of the husband’s Vehicle C (“Vehicle C”);
g)the wife states that 800 of the Shares Y shares that she holds are in fact held on trust for their children (400 for Mr D and 400 for Ms S). It is agreed that the balance (namely 1000 shares) ought properly be included in the asset pool (“Shares Y shares”);
h)in relation to the Bank 1 Mastercard debt, the husband states that $4,500 of the $8,500 relates to a holiday which the wife took post-separation (“Bank 1 Mastercard”); and
i)the value of the wife’s Vehicle A (“Vehicle A”).
Former matrimonial home
The parties both concede that the former matrimonial home must be sold, although the key issue between them remains how that sale is to be effected.
Various interim orders were made in relation to these proceedings on 13 April 2017, including for the sale of the former matrimonial home (“the April 2017 interim orders”). Relevantly, those interim orders stated:
(1)Between 1 September 2017 and 7 September 2017 the parties do all acts and things and sign all such documents necessary to place the property Property A on the market for sale (“the sale”) as follows:
(a)By 1 August 2017 the parties execute a selling authority with one of the following agents as agreed, namely:
(i) Real Estate Agent 1;
(ii) Real Estate Agent 4;
(iii) Real Estate Agent 2;
(iv) Real Estate Agent 3;and
(v) Real Estate Agent 5;
and failing agreement as nominated by the President of the REIV (‘the real estate agent’)
(b)The method of sale be as agreed or as nominated by the President of the REIV;
(c)The reserve price be as agreed and failing agreement as determined by the President of the REIV; and
(d)The conveyancing to be undertaken by Conveyancing.
It is not in dispute between the parties that following the April 2017 interim orders, steps were taken to place the former matrimonial home on the market.
The husband’s evidence was that he has been attempting to facilitate a sale of the former matrimonial home for a number of years post separation but that the wife has, ‘consistently resisted attempts to sell the property’. [2]
[2] Paragraphs 113 to 116 of the affidavit of Mr Oatley filed 29 January 2018.
The husband gave further evidence that pursuant to the April 2017 interim orders, the parties appointed Real Estate Agent 1 who recommended sale by auction. He stated further that he signed the necessary authorities but that the wife was unwilling to do so and a stalemate resulted.[3] For her part, the wife disputed that the agents recommended an auction. She further deposed that Real Estate Agent 1 recommended that the property be listed for private sale and she therefore signed an authority for a private sale on 4 August 2017. In her evidence, the wife conceded that she ‘was not happy with the property going to auction as all agents had recommended against it.’[4] The wife further stated that ultimately she did sign the auction authority on 11 October 2017 with the property to be auctioned on 14 December 2017.[5]
[3] Paragraphs 118 to 119 of the affidavit of Mr Oatley filed 29 January 2018.
[4] Paragraph 32 of the affidavit of Ms Oatley filed 11 January 2018.
[5] Paragraph 33 of the affidavit of Ms Oatley filed 11 January 2018.
The husband further stated that on or about 27 September 2017, he instructed his solicitors to write to the REIV requesting that they set the reserve as contemplated by the April 2017 interim orders. [6] The REIV nominated Mr P to value the former matrimonial home for the purpose of setting a reserve. The husband’s solicitors wrote to Mr P instructing him for this purpose on 5 October 2017.[7]
[6] Paragraph 120 of the affidavit of Mr Oatley filed 29 January 2018.
[7] Paragraph 120 to 122 of the affidavit of Mr Oatley filed 29 January 2018.
The husband also gave evidence of further correspondence between his solicitors, the selling agent and Mr P in the period between 10 and 11 October 2017.[8]
[8] Paragraphs 124 to 127 of the affidavit of Mr Oatley filed 29 January 2018.
It was against this background that the wife signed the auction authority form on 11 October 2017 with a reserve price of $1.25 million.
The husband’s evidence was that he only agreed to this reserve to avoid a further stalemate but that his preference was for the reserve to be set at $1.1 million.[9]
[9] Paragraphs 128 to 129 of the affidavit of Mr Oatley filed 29 January 2018.
The wife disputed the husband’s timeline set out above and stated that there had been agreement reached between the parties for the reserve price to be set at $1.25 million and that although there had been some discussion about appointing a valuer through the REIV, ‘this was cancelled on 10 October 2017 as we had reached an agreement as to the reserve price.’
I prefer the husband’s evidence in this regard.
In any event, it is common ground that once the reserve price was agreed, the property was listed for sale by auction with the auction set for the evening of 14 December 2017. The husband’s evidence was that the wife continued to interfere with the sale process in her dealings with the agent and prospective buyers. In particular, he complained that although the property was attracting significant interest from potential buyers, the unrealistic reserve translated to low levels of personal inquiries or inspections.[10]
[10] Paragraphs 130 to 134 of the affidavit of Mr Oatley filed 29 January 2018.
The husband then stated that on the basis of the feedback he had received, he formed the view that the reserve price he and the wife had set was too high. In reliance on the April 2017 interim orders and on the basis that there was no longer any ongoing agreement between them as to the reserve price, he arranged for Mr P to assess the value of the former matrimonial home for the purposes of setting a reserve price.[11]
[11] Paragraph 136 of the affidavit of Mr Oatley filed 29 January 2018.
Irrespective of whether Mr P was indeed appointed pursuant to the April 2017 interim orders, he did attend the former matrimonial home for the purposes of a valuation and has filed an affidavit in these proceedings in which he assesses the value of the former matrimonial home to be $1,000,000.
The wife takes issue with the valuation report prepared by Mr P.[12] The husband takes issue with the complaints made by the wife.[13]
[12] Paragraph 36 of the affidavit of Ms Oatley filed 11 January 2018.
[13] Paragraph 139 the affidavit of Mr Oatley filed 29 January 2018.
Neither the wife nor the husband is a qualified valuer. The wife has not filed an alternative valuation. I accept the valuation provided by Mr P.
In any event, the property did not sell at auction and according to both parties, there were no bids received at auction at all. The husband said that this was in part because of the conduct of the wife and her refusal to agree to a more reasonable reserve. For her part, the wife said that this was the result of the failure of the agent to properly market the property.
It was put on behalf of the husband that the wife was resistant to the sale and more to the point, acted in a manner which effectively frustrated an orderly sale of the property.[14] Moreover, the wife’s conduct was done in the context of the husband making the entirety of mortgage repayments and therefore there was no prejudice to the wife.
[14] Transcript page 59 at line 45 to page 60 at line 1.
The wife for her part said that she was at all times trying to seek the best price possible for the property. In cross examination, the wife continued to maintain that she did not accept that the valuation provided by Mr P should be used as the reserve price for any future sale of the property.[15]
[15] Transcript page 62 at line 3.
The wife further indicated that if the property had not sold by the end of the sale period, namely by the end of March, her preference would be for Real Estate Agent 4 to be appointed.[16]
[16] Transcript page 63 at lines 3 to 11.
The wife went on to say that her intention was to maximise the sale price for the former matrimonial home so that both she and the husband could have sufficient resources to have a home.[17]
[17] Transcript page 68 at lines 32 to 38.
In cross examination, the husband also conceded that he too wanted to maximise the price obtained from the sale of the matrimonial home. He maintained his view however, that in light of the response to the sale campaign in late 2017, the reserve price had to be revisited to ensure that a sale was achieved. He complained about the fact that the wife continued to live in the matrimonial home whilst he had to rent alternative accommodation whilst continuing to meet the costs of the mortgage in the order of $500 per month.
Cheque
It is common ground between the parties that the wife received an inheritance of approximately $210,000 in 2013.
The husband asserted that the wife had withdrawn a cheque from her account in the sum of just over $13,000 and that this amount ought to be included in the asset pool for distribution between the parties.[18]
[18] Paragraph 15 of the affidavit of Mr Oatley filed 1 November 2017.
In response, the wife conceded in her affidavit of 10 January 2018 that she did withdraw these funds from her account and that she has held those funds, ‘to cover (her) future expense.’ She further deposed that after meeting various household expenses she expected to have about $11,000 remaining.[19] At the hearing, the wife confirmed that she deposited that cheque into her account and transferred some of it to her credit card to pay for various expenses. She stated that the balance remaining in her account was $9,500 at the hearing.[20]
[19] Paragraph 4 of the affidavit of Ms Oatley filed 11 January 2018.
[20] Transcript page 7 at lines 44 to 47 to page 8 at lines 1 to 5.
In re-examination and in response to a call for documents relating to this cheque, the confirmed that she deposited this cheque into her account in January 2018 and that she now has $9,500 left in her account.[21]
[21] Exhibit D.
I find that the amount of $9,500 which is the remainder of the inheritance ought to be included in the asset pool.
Vehicle C
Although there was initially some dispute about the valuation of the husband’s Vehicle C motor vehicle, its value was ultimately agreed at $14,900.
Motor Cycle
At trial, the husband asserted that his Motor Cycle was worth $19,000. The wife asserted that it was worth $21,500.[22] I note that the husband estimated the value of his Motor Cycle as $21,000 in his affidavit of 1 November 2017.[23] This was reduced in his further affidavit of 25 January 2018 without any explanation.[24]
[22] Transcript page 9 at lines 36 to 46.
[23] Paragraph 15 of the affidavit of Mr Oatley filed 1 November 2017.
[24] Paragraph 15 of the affidavit of Mr Oatley filed 29 January 2018.
I find on the basis of the evidence such as it is, that the Motor Cycle should be included in the pool at the value of $21,000.
Vehicle A
The husband deposed to the fact that the wife’s Vehicle A was worth $5,000 in his affidavit of 1 November 2017. This value was reduced in his affidavit of 25 January 2018 to $4,650, again without any explanation. At trial, counsel for the husband put to the wife that the Vehicle A was worth $6,650 being the midpoint of the range quoted in the Redbook valuation. The wife for her part stated that her motor vehicle was worth $5,000 in her affidavit of 20 October 2017 and in her financial statement sworn 10 November 2016.
I find that the Vehicle A has a value of $5,000.
Vehicle B
In her financial statement, the wife stated that she owns a Vehicle B which is valued at $8,000. The husband also attributes that value to that vehicle in his affidavit of 1 November 2017 but again, this value is reduced in his subsequent affidavit of 25 January 2018 without any explanation.
In cross examination, it was put by the husband’s counsel to the wife that the value of the Vehicle B was $7,450 which was accepted by the wife.[25]
[25] Transcript page 13 at line 6.
Shares Y shares
It is common ground that the wife has a number of shares in her name. The wife gave evidence that her mother had won some money and that she gave the wife $2,000 which the wife used to buy Shares X shares.[26]
[26] Transcript page 68 at lines 10 to 14.
It is also common ground that the wife holds 1800 Shares Y shares in her name. The wife has given evidence that of those shares, 800 are held on trust for the parties’ children, 400 for their son and 400 for their daughter. The husband, in cross examination acknowledged that the wife was holding these 800 Shares Y shares on trust for their children.[27]
[27] Transcript page 78 at lines 18 to 21; see also Exhibit F and Exhibit G.
I find that the shares available for distribution between these parties do not include the 800 shares which are held on behalf of the parties’ children. The husband’s counsel conceded in closing submissions that if the 800 shares are excluded, then the value of the wife’s Shares Y shares is $3,520.
Bank 1 Mastercard
The wife attested to having a liability in respect of a Bank 1 Mastercard account in the sum of $8,451.[28]
[28] Paragraph 56 of the affidavit of Ms Oatley filed 20 October 2017.
In cross examination, it was put to the wife that as at the time of separation this account had a zero balance. The wife gave evidence that in 2012, her purse was stolen and she had to cancel her bank cards and have replacement cards issued and that this might explain why there was a zero credit at 2012. The wife gave evidence that she now only has one credit card which is at its maximum limit and that the charges incurred relate to storage fees.
She said that these charges were incurred as she had to place some of her belongings into storage following separation as the husband had commenced removing certain items from the former matrimonial home.[29]
[29] Transcript page 16 at lines 35 to 47 to page 17 at lines 1 to 19.
Even accepting the wife’s evidence summarised above, the wife has not established that the credit card debt, which she now claims ought to be included in the pool, was a debt incurred during the relationship. I find that it was incurred post-separation and as such, I am not satisfied that justice and equity requires that it should be included in the asset pool for distribution between the parties.
Wife’s inheritance
The wife’s evidence was that in 2013, shortly before separation, she received an inheritance from the estate of her late father in the sum of just over $210,000.[30] This is not in dispute.
[30] Paragraphs 34 and 35 of the affidavit of Ms Oatley filed 20 October 2017.
She gave evidence that in 2013, she made two payments to the mortgage totalling approximately $30,000. The husband conceded that the wife made these payments but said that they were in effect to refund monies paid by him:
a)to pay off her credit card debt after she purchased some $10,000 worth of jewellery; and
b)following the husband confronting the wife about the fact that she had drawn down some $41,000 from the joint mortgage re-draw facility without his knowledge or consent in 2012.[31] The wife denied withdrawing any such funds without the knowledge of the husband. She provided a plausible explanation for the expenditure at this time, which I accept.
[31] Paragraph 70(1)(c) of the affidavit of Mr Oatley filed 29 January 2018.
I therefore find that the wife did pay $30,000 of her inheritance towards the mortgage.
It is common ground that the wife’s father passed away in 2012. It is also not disputed that the parties took an overseas holiday in 2012. The wife’s evidence is that both she and the husband used their credit cards to the limit for this purpose. During this holiday, she stated that she purchased a watch for between $5,000 and $6,000 and that the husband also purchased a watch for about the same amount.
The wife also gave evidence, which I accept, that following the return of the parties from their holiday, the payment of outstanding bills and the wife’s contribution to the mortgage referred to above, the wife had approximately $154,000 remaining from her inheritance. This was initially invested in a term deposit.[32] The wife gave evidence that she has since used this inheritance, save for $9,500 referred to above for her living expenses, over and above monies she has received from Centrelink.[33]
[32] Exhibit E.
[33] Paragraph 20 of the affidavit of Ms Oatley filed 11 January 2018.
Gambling
The husband asserted that the wife has dissipated her inheritance through gambling.
The husband further stated that although he was aware during the marriage that the wife enjoyed gambling, he was unaware of the extent to which she had engaged in gambling which dates back to about 1993.
The husband’s evidence was that his analysis of the wife’s financial records indicates that:
a)the wife withdrew the sum of approximately $57,000 at gambling venues in the period from 2012 to 2017 (noting that the first 12 months of this period relates to a period prior to separation, this equates to approximately $230 per week); and
b)in addition, a further $87,000 was withdrawn by the wife which are unexplained from ATMs near gambling venues; the implication being that much, if not all of this money was also used for gambling purposes.
It was put on behalf of the husband that the wife effectively wasted the inheritance she received and therefore some or all of it ought to be added back to the pool. Alternatively, he sought that the court should have regard to that money as a financial resource the wife would have had available to her if she had not wasted it.[34]
[34] Paragraphs 96 to 98 of the affidavit of Mr Oatley filed 29 January 2018.
For her part, the wife acknowledged that she attended gaming venues as part of her social life and indeed stated that this was something that she and the husband did together during the marriage. She denied however, that her expenditure on poker machines was excessive either during the marriage or post-separation.
In addition, the wife’s evidence, which I accept, was that some of the withdrawals from gaming venues were not used solely for gambling. She gave evidence both in her affidavit and in the court that she would use some of these funds for food, entertainment and accommodation at gaming venues.
The wife also conceded that in the period post-separation, she was struggling emotionally and that this impacted on her gambling. In cross examination, the wife gave the following evidence in response to questions about her gambling post-separation:
I’m not going to deny that I didn’t go to the pokies because I did, but at the time that particular…I wasn’t in my right mind. I was very bad. So much so that I was – when my mum found out she…took me to the hospital…it was a very bad time. I don’t even remember doing half of it, at the time…’[35]
[35] Transcript page 30 at lines 21 to 27.
In addition, it was submitted during closing submissions for the wife that when the wife’s expenditure at gaming venues is to be considered by the court, it must be viewed in the context of the husband’s own spending. The husband states in his financial statement filed 31 October 2017 that he spends $100 per week for entertainment/hobbies, $95 per week for holidays, $10 per week for books and magazines and $50 per week for gifts. This equates to a total of $255 per week in discretionary spending. This is not dissimilar to the wife’s expenditure at gaming venues for not only gambling, but also meals and other entertainment.
In those circumstances, I am not satisfied that an argument of waste has been made out. As stated above, I have also had regard to the context in which these expenses have been incurred, at a time which the wife and the husband both describe as difficult and challenging.
Resources available to the wife
The husband also asserted that the wife had a financial resource in jewellery valued at over $50,000.[36]
[36] Paragraph 16 of the affidavit of Mr Oatley filed 29 January 2018.
The wife admitted that she owns some jewellery but denied that it would be valued at $50,000. Moreover, she said that he husband also has some expensive jewellery items; in particular, she makes reference to a watch he purchased when they were on holiday shortly prior to separation for approximately $6,000.
The husband has not established the wife’s ownership of significant jewellery to the value of $50,000 that the court should have regard to in determining this matter.
It was also put on behalf of the husband that had the wife not wasted her inheritance, she would have had that money available to her as a future resource and that this is relevant in assessing her future needs.[37] I refer to my findings at paragraph 69 above.
[37] Transcript page 47 at lines 35 to 46.
Superannuation
It is common ground that the parties separated in September 2013. The husband gave evidence of his superannuation entitlements as at separation and its increase post-separation.[38] In essence, he stated that his superannuation entitlements have increased in value by almost $165,000 since separation. It was put on behalf of the husband that it would be unfair for the wife to gain a benefit from the increase in his superannuation post-separation.
[38] Paragraph 99 of the affidavit of Mr Oatley file 29 January 2018.
It was therefore put on behalf of the husband that if the court were minded to make a superannuation splitting order, this ought to be based on the parties’ superannuation entitlements at the time of separation, not at the time of the final hearing and therefore an order equalising the parties’ superannuation entitlements at separation would result in a base amount to the wife of $102,804.[39]
[39] Paragraphs 100 to 107 of the affidavit of Mr Oatley filed 29 January 2018.
For the wife it was argued that whilst the husband may well have made contributions to his superannuation fund post-separation, the court ought not in the present circumstances depart from the usual course of equalising the parties’ superannuation entitlements at the time of trial.[40]
[40] Exhibit M, with respect to procedural fairness having been afforded to the trustees.
Legal fees
It was submitted on behalf of the wife that the amounts paid by the husband for his legal fees ought to be added back into the pool.
The husband’s evidence was that in 2014, he received a redundancy package, some of which he used to pay his legal fees at that time. At best, it was said that some $9,000 could properly be seen to have been derived from joint funds and therefore ought to be added back.
The wife’s counsel pointed to a bank statement produced by the husband which shows that in January 2017, shortly after these proceedings were commenced by the wife, the husband paid some $47,000 in legal fees.[41] Counsel for the wife referred to the decision of Murphy J in Challen & Challen [2007] FamCA 1292. At paragraph 81 of that decision, his Honour set out the key considerations which might move a court to add back legal fees paid by one or both parties.
[41] Exhibit I.
His Honour, Murphy J quoted the following from the Full Court’s decision in NHC & RCH [2004] FamCA 633; (2004) FLC 93-204:
57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions) then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58. If funds used to pay legal fees had been generated by a party post-separation form his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset;…
59. Outstanding legal fees themselves are generally not taken into account as a liability.[42]
[42] NHC & RCH [2004] FamCA 633; (2004) FLC 93-204 at [57]-[59].
It was submitted on behalf of the husband that his legal fees following the commencement of these proceedings have been paid using post-separation income and therefore ought not to be added back into the pool. There is some merit to this proposition. There is no evidence to suggest that the husband accessed funds generated during the marriage to pay his legal fees in January 2017, three years after the parties’ separation. Moreover, the husband gave evidence that he has been employed in his current role since 2014 and earns approximately $130,000 per annum. In those circumstances, I find that it is more probable than not that he has made these payments out of his post-separation income.
In those circumstances, I do not propose to add the husband’s legal fees incurred since these proceedings were commenced back into the asset pool.
Having said that, this is a relatively modest pool and in those circumstances, it is appropriate to add back the $9,000 in legal fees paid for by the husband in 2014 from his redundancy payment into the pool.
Life Insurance
The husband gave evidence, which I accept, that he has no accounts with either Life Insurance in his name.
Super Fund 4
The husband also gave evidence that at the date of separation, he had an account with Super Fund 4 which had a balance of about $25,000.[43] His evidence was that as at the date of the hearing, this balance had been depleted and he had in fact recently received correspondence from Super Fund 4 indicating that he owed them $900.
[43] Transcript page 89 at lines 5 to 10.
The husband’s evidence in relation to this account was that it was an account that was set up during a prior period of employment. Once his employment with that company ceased, his employer no longer paid premiums in respect of that account and the balance was depleted to the tune of $900 per month. As a result, he now has a negative balance.
Whilst it is not entirely clear what the Super Fund 4 monies were used for, I find that the amount contained in the Super Fund 4 account (in the order of $25,000) was dissipated over the period from separation to January 2018. It appears from the husband’s evidence that he was either unaware of this occurring or did not take any action to access those funds in that intervening period.
I do not propose to make reference to the Super Fund 4 account in the asset pool. However, I note that the dissipation of these funds goes some way to answer any criticism the husband may have had about the wife’s use of her inheritance.
Parties’ employment
It is common ground and I find that the parties are both hard working people who have each contributed both financially and non-financially, to the best of their abilities, over the course of a long relationship.
It is not in dispute that there were periods when the husband was out of work during the relationship and where the wife was working.
The husband was critical of the wife for leaving her employment in 2014 and says that she took the opportunity once she received her inheritance to stop working. The wife’s evidence was that she left her employment following some structural changes which had seen her hours of work reduced and a number of people being made redundant. She also gave evidence that she was quite stressed at that time as a result of the break down in her relationship and the abuse which she alleged she was suffering at the hands of the husband whilst they were both living under the same roof.
I accept the wife’s evidence that she was distressed at separation and that this, together with the changes at her workplace lead to her employment coming to an end. I do not accept the husband’s submission that the wife used the inheritance as a means to cease work and not contribute financially. In coming to this conclusion, I have also had regard to the timing of the termination of her employment. It is common ground that the wife received the inheritance from her father in 2013 and that following her father’s death in 2012, she knew she would receive an inheritance. She did not leave her job until the following year.
The wife also gave evidence that she tried to find alternative employment but that this was not easy. I accept the wife’s evidence in this regard.
Items which the wife is seeking to have returned
In her amended initiating application, the wife seeks the return of a series of items from the husband which are set out in her proposed orders. In his second amended response, the husband does not specifically address these matters.
The wife’s claims the identified items were put to the husband in cross examination. The effect of the husband’s evidence was as follows:
a)he was unsure if he still had the painting from above the bed;
b)he did not know what the reference was to the ‘trunk’;
c)he has the ‘trunk’ but it is his grandmother’s trunk;
d)he has ‘painting’ but said that it was given to him and he should therefore be able to keep it;
e)he knows of a ‘map’ which the parties bought whilst in the (country omitted), but alleged the wife already had that in her possession;
f)he has the key to the wife’s Vehicle B and is prepared to return that to the wife;
g)he has two vases but gave evidence that they were always in his part of the house and in any event have been given to his daughter for her to use although they are still in his house; and
h)he has two (not four) gold framed paintings that were upstairs and has agreed to give them to the wife.
Findings as to asset pool
On the basis of the findings above, the net asset pool, aside from the former matrimonial home, available for distribution between the parties comprises the following:
Assets
Ownership
Value
Bank 2 accounts
Husband
$1,415
Bank 1 accounts
Husband
$1,683
Vehicle C
Husband
$14,900
Motor Cycle
Husband
$21,500
Shares Y shares (1,000 shares)
Husband
$3,520
Shares Z shares (247 shares)
Wife
$19,228
Shares Y shares (1000 shares)
Wife
$3,520
Shares X shares (1,100 shares)
Wife
$3,344
Shares W shares (243 shares)
Wife
$9,953
Vehicle A
Wife
$6,650
Vehicle B
Wife
$8,000
Bank 1 account
Wife
$844
Balance of wife’s inheritance
Wife
$9,500
Husband’s legal fees (added back)
Husband
$9,000
Total assets
$113,057
Liabilities
Ownership
Value
Bank 1 mortgage
Joint
$121,070
Bank 1 mortgage
Joint
$16,648
Rates arrears –Property A
Joint
$6,000
Bank 1 Visa credit card
Husband
$1,327
Total liabilities
$145,045
Superannuation
Ownership
Value
Super Fund 1 (as at Jan 2018)
Husband
$156,606
Super Fund 2 (as at January 2018)
Husband
$289,066
Super Fund 4 (as at January 2018)
Husband
$30
Super Fund 3 (as at October 2017)
Wife
$54,000
Super Fund 5 (as at October 2017)
Wife
$12,000
Total combined superannuation
$511,702
The legislation
Section 79(1) of the Act provides that the court may make such orders as it considers appropriate, altering the interests of the parties to a marriage in the property of the parties to that marriage.
Subsection 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Where the court is satisfied that it is just and equitable to make an order altering the interests of parties in property, section 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made.
Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
In Stanford v Stanford [2012] HCA 52, the High Court noted that before making any orders to alter the parties’ interests in property, the court must decide whether it is just and equitable to make any property orders or to alter the parties’ interests in property.
In many cases, determining whether it is just and equitable to make an order under section 79 is determined in the affirmative where there has been a breakdown of the marital relationship and where both parties have sought orders from the court altering their respective property rights.
This is a case involving a very long marriage which bore two now adult children. The relationship has come to an end some years ago and the parties are both seeking orders adjusting their property interests to enable them to separate their financial interests. In all of the circumstances, I am satisfied that it is just and equitable to make orders adjusting property matters between them.
Having come to this view, the approach that the court takes in considering what orders are appropriate under section 79 of the Act, are aptly summarised in In the Marriage of Hickey [2003] FamCA 395. Essentially, this requires the court to:
a)identify the assets and the value of the assets in the property pool;
b)determine the contributions made by each of the parties to those assets, both directly and indirectly and in financial and non-financial terms;
c)determine whether any adjustment is required for section 75(2) factors; and
d)in light of those findings, determine what orders for the division of property is just and equitable.
As the noted by the Full Court of the Family Court in Bevan & Bevan this four stage process is: ‘no more than a means to an end, since the statutory obligation is to alter existing interest only if it is just and equitable to do so.’ Additionally stated by the Full Court of the Family Court in Norman v Norman [2010] FamFCAFC 66 at [60] ‘… the ‘four step’ approach merely illuminates the path to the ultimate result.’ The task for this court is ultimately to determine what justice and equity requires.[44]
[44] Bevan & Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116.
Contributions
It is not in dispute that this court must give consideration to financial and non-financial, direct and indirect contributions of the parties. This includes contributions as a parent and homemaker. The issue in this case is the dispute between the parties as to what each party actually contributed over the course of the relationship.
Initial contributions
The parties met when they were 15 years of age and married when they were 21 years old, commencing cohabitation at that time.
At the time of cohabitation, both parties were working and brought minimal assets and possessions into the relationship.
The wife gave evidence which appears to be partly accepted by the husband that they initially purchased some land in Suburb P with the assistance of the wife’s mother. This is a contribution in the wife’s favour although given the length of the relationship and the overall contributions that they have each made to the assets of the relationship over time, this is minimal.
I find that their contribution at the commencement of their relationship was roughly equal.
Contributions during the relationship
The parties quite properly conceded that contributions during the relationship were equal. The evidence each gave was that they have both worked fairly consistently during the marriage to the best of their ability. The wife worked throughout the relationship, save for a period of maternity leave after the birth of each of their two children. The husband also worked throughout the relationship although there were some periods during which he was out of work.
The parties each contributed to the care of their two children over the course of their relationship. Both children are now adults and independent.
Contributions post-separation
The husband’s case was that his contributions post-separation have been significant insofar as he has continued to meet the costs of the mortgage in full notwithstanding that he vacated the former matrimonial home in 2016 and has had to find alternative rental accommodation.
The husband’s evidence, which I accept was that he has paid approximately $45,000 towards the mortgage post-separation. I note that for much of that time he continued living in the home. I accept the evidence of the wife that even whilst they were married, the husband always met the costs of the mortgage.
It is also common ground that the husband paid half of the rates and that there is an outstanding amount for unpaid rates in the order of $6,000. The husband deposed that it was agreed that the wife would pay half the rates and therefore she ought to be solely responsible for this liability. The wife denied any such agreement and said that although the husband told her she had to pay these rates, she did not have the funds to do so and therefore did not pay them.
It is common ground that post-separation and whilst they continued to live under the same roof, each party shared the costs of household bills and each paid their own car insurances and other expenses including food and the like.
As is evident from the discussion of the evidence set out above, the husband also asserted that rather than contributing to the assets of the parties post-separation, the wife spent significant sums on gambling thereby dissipating the property available for distribution between the parties or which would otherwise have been available to her as a financial resource.
The wife for her part stated that she contributed as best she could but that for a significant period of time post-separation, she was unable to find work and did not have the financial resources to meet any of the costs of maintaining the mortgage over the former matrimonial home.
The wife also gave evidence that when she received the inheritance from her late father’s estate, she applied $30,000 towards the mortgage. The husband disputed this and said that she was simply repaying monies that she had drawn down from the mortgage without his knowledge.
I accept the wife’s evidence in this regard and find that she paid $30,000 off the mortgage from her inheritance and that this is a contribution which weighs in her favour.
In relation to the unpaid rates, I find that the wife did have money available to her to meet her half share of the rates on the former matrimonial property from the inheritance that she had received, but chose to spend that on other things. I therefore make an order that the wife pay the outstanding rates in the sum of $6,000.
The husband also gave evidence that his superannuation has significantly increased post separation. His position was that any splitting order to equalise the parties’ superannuation entitlements ought to be based upon their respective entitlements as at the date of separation.
An alternative approach would be to recognise the increase in the husband’s superannuation post-separation as one of the contributions that he has made to the asset pool now available for division under section 79. I propose approaching the superannuation issue in this manner.
The section 79(4)(d), (e), (f) and (g) and the section 75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage
The orders that I propose making do not impact on the earning capacity of either party to the marriage.
Section 79(4)(e): the matters referred to in section 75(2) so far as they are relevant
The following section 75(2) matters are relevant in this case:
(a)the age and state of health of each of the parties; and
The wife gave evidence that she suffers from a range of medical conditions although no independent medical evidence was provided.
The husband stated that he suffers from a range of medical ailments and provided evidence from his rheumatologist about his current conditions. This information however, did not expressly deal with his capacity for work or income earning capacity.
Both parties are and continue to be gainfully employed. Given their ages, it is likely that they will each seek to retire in the next few years either partially or fully.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
I refer to my earlier comments about the husband’s submissions in relation to the resources which the wife had available, particularly in relation to the inheritance and her jewellery.
The wife’s income is modest and although she might have the capacity to obtain more work, the husband conceded that it is not likely that she will obtain employment with an income approaching that of the husband’s.
The husband for his part is employed and earns approximately $130,000 per annum. There is no evidence to suggest that this is not likely to continue for the foreseeable future.
An adjustment must be given to the wife having regard to her modest income as compared to that of the husband’s.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
This is not a relevant consideration in this case.
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself;
(ii)a child or another person that the party has a duty to maintain
The proposed orders allow these parties to obtain the net proceeds of sale of the former matrimonial home and then re-establish themselves in alternative suitable accommodation. Neither has a responsibility to support a child or another person.
(e)the responsibilities of either party to support any other person
This is not a relevant consideration in this case.
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and
This is not a relevant consideration in this case.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
The parties have separated after a long marriage. The proposed orders will allow them to re-establish themselves in accommodation independent of each other and which is reasonable in all the circumstances. Both parties agreed that their preference is to maximise the proceeds of the sale of the matrimonial home.
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
This is not a relevant consideration in this case.
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
This is not a relevant consideration in this case.
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration in this case.
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
This is not a relevant consideration in this case.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
No other factor is relevant in this case.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
This is not a relevant consideration in this case.
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
This is not a relevant consideration in this case.
Whether it is just and equitable to alter the parties’ property interests
I have dealt with this consideration above.
What order is just and equitable?
It is well accepted that the exercise of the court under section 79 is not a strict mathematical one. Rather, the considerations outlined above are simply a tool to assist the court to come to a principled decision on what would amount to a just and equitable division of assets between the parties.
Whilst overall, the parties have essentially contributed equally to their joint and individual assets, noting the husband’s marginally greater financial contribution post-separation; the wife has greater needs in the future, having regard to her earning capacity when compared to that of the husband.
In all the circumstances, I find that the wife ought to receive a loading in her favour in relation to the non-superannuation assets of approximately 3%, principally on the basis of future needs and having regard to the husband’s greater post-separation contribution.
Having regard to all of the circumstances discussed above, I am therefore satisfied that just and equitable orders would see:
a)the wife retain or receive 53% and the husband retain or receive 47% of the net proceeds of the former matrimonial home;
b)an order equalising the parties’ superannuation entitlements;
c)the wife to otherwise retain the following assets and liabilities; and
Assets
Value
Shares Z shares (247 shares)
$19,228
Shares Y shares (1000 shares)
$3,520
Shares X shares (1,100 shares)
$3,344
W shares (243 shares)
$9,953
Vehicle A
$6,650
Vehicle B
$8,000
Bank 1 account
$844
Balance of inheritance
$9,500
Total assets
$61,039
Liabilities
Value
Rates arrears –Property A
($6,000)
Net total
$55,039
d)the husband to otherwise retain the following assets and liabilities.
Assets
Value
Bank 2 accounts
$1,415
Bank 1 accounts
$1,683
Vehicle C
$14,900
Motor Cycle
$21,500
Shares Y shares (1,000 shares)
$3,520
Total assets
$43,018
Liabilities
Value
Bank 1 Visa credit card
($1,327)
Net total
$41,691
The key issue in this case was how the sale of the former matrimonial home should occur. The parties agreed that if the current agents were unable to secure a sale, they would engage Real Estate Agent 4 to auction the home.
In terms of the reserve price, the only independent evidence before the court as to what that price should be is the valuation prepared by Mr P. [45]
[45] Affidavit of Mr P filed 24 January 2018.
The orders will therefore provide for the sale of the property conducted by Real Estate Agent 4, by auction with a nominated reserve of $1,000,000.
Given the husband’s concerns about the wife’s interference in the sale process, the orders also include a requirement that the parties comply with all reasonable directions by Real Estate Agent 4 regarding the sale process.
I find that orders giving effect to these reasons are just and equitable and I therefore make the orders set out at the beginning of these reasons.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 25 May 2018
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Costs
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Injunction
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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