Parmentier & Yates
[2022] FedCFamC1F 1
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parmentier & Yates [2022] FedCFamC1F 1
File number(s): SYC 5932 of 2017 Judgment of: ALTOBELLI J Date of judgment: 12 January 2022 Catchwords: FAMILY LAW – PROPERTY – Determination of asset pool – Constructive trust – Where the husband seeks declaration that his parents hold 25 per cent of the matrimonial home by way of constructive trust – Constructive trust not established – Whether the husband’s legal fees are to be notionally added back – Finding that it is appropriate for the legal fees to be added back – Assessment of contributions – Where the husband made greater initial financial contributions – Where the parties’ financial contributions during the relationship were assessed as equal – Where the wife’s homemaker and parent contributions exceeded the husband’s post-separation – Contributions assessed at 85 per cent in the husband’s favour – Where the wife’s future needs are greater – Adjustment of 10 per cent in the wife’s favour. Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM Cases cited: Bevan & Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116
Chorn & Hopkins (2004) FLC 93–204; [2004] FamCA 633
Farmer & Bramley (2000) FLC 93–060; [2000] FamCA 1615
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93–143; [2003] FamCA 395
Khalif & Khalif [2021] FamCAFC 123
Omacini & Omacini (2005) FLC 93–218; [2005] FamCA 195
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Vass & Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51
Division: Division 1 First Instance Number of paragraphs: 70 Date of last submission/s: 28 September 2021 Date of hearing: 27–28 September 2021 Place: Sydney Counsel for the Applicant: Ms Dart Solicitor for the Applicant: Reid Family Lawyers Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Barkus Doolan ORDERS
SYC 5932 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PARMENTIER
Applicant
AND: MS YATES
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
12 JANUARY 2022
THE COURT ORDERS THAT:
1.Within 56 days of the date of these orders, the Applicant (“husband”) pay to the Respondent (“wife”), by way of cleared funds, the sum of $507,591.
2.Within 14 days of the date of these orders, the husband shall do all acts and things, and sign all documents as may be required to transfer to the wife, at the wife’s cost, sole legal and beneficial ownership of the Motor Vehicle 1 registration number ….
3.Subject to compliance by the husband with his obligations pursuant to Order 1 and 2, the husband shall retain sole legal and beneficial ownership of the following to the exclusion of the wife:
(a)his interest in M Street, Suburb N in the State of New South Wales being the whole of the land and improvements thereon comprising Folio Identifier …… (“the Suburb N property”);
(b)his Motor Vehicle 2;
(c)all proceeds of sale derived from the sale of his Motorbike 1;
(d)all proceeds of sale derived from the sale of his P Company Shares;
(e)all funds held at bank in accounts in the husband's sole name;
(f)the furniture, contents and items remaining in the Suburb N property; and
(g)all of the husband's superannuation entitlements held with Q Super Fund.
4.The wife shall retain sole legal and beneficial ownership of the following to the exclusion of the husband:
(a)all funds held at bank in accounts in the wife's sole name;
(b)all furniture and contents in the wife's possession, custody and control: and
(c)all of the wife's superannuation entitlements held with R Super Fund.
5.Each party shall otherwise be and remain solely liable for his/her own personal debt and shall indemnify and keep indemnified the other party in respect of the same.
6.Pending payment to the wife of the payment as referred to in Order 1, and unless otherwise agreed in writing or ordered by the Court, the husband is restrained from:
(a)transferring, disposing of, and/or otherwise dealing with his interest in the Suburb N property other than to fulfil his obligations under these orders;
(b)mortgaging and/or further encumbering the title to the Suburb N property other than to fulfil his obligations under these orders; and
(c)doing any act or thing, or authorising any other person acting on his behalf to do any act or thing, which has the effect of causing for the amount owing under any mortgage registered on title to the Suburb N property to increase beyond the current balance owing (including redraw), other than to fulfil his obligations under these orders.
7.In the event the husband fails or neglects to make the payment to the wife of the amount referred to in Order 1 within the time period prescribed by these orders, then forthwith and within 14 days thereafter the husband shall do all acts and things, sign all documents, and provide all necessary consents to cause for the Suburb N property to be forthwith listed for sale and to thereafter sell the Suburb N property for the highest attainable price as agreed between the parties by way of private treaty or, if agreed between the parties, by public auction.
8.For the purposes of effecting a sale of the Suburb N property, the following shall occur:
(a)The husband shall retain a real estate agent as agreed between the husband and wife in writing. In the event that the parties do not reach agreement to the identity of a listing agent the following shall apply:
(i)the wife shall serve upon the husband's solicitors the names and contact details of three listing agents the wife proposes be retained by the husband to sell the Suburb N property; and
(ii)within seven days of service upon the husband, through his solicitors, of the written notice referred to at Order 8(a)(i) above, the husband shall select from the wife's list the name of one listing agent and he shall notify the wife of his selection, in writing, via the wife’s solicitors; and
(iii)within a further seven days the husband shall do all acts and things, and sign all documents so as to enter into an Exclusive Agency Agreement with the listing agent chosen by the husband from the wife’s list; and
(iv)if the husband fails to comply with Order 8(a)(ii) above then the wife and/or her nominee shall be at liberty to select the listing agent to list, market and sell the Suburb N property and within a further seven days of being notified of her selection, the husband shall enter into an Exclusive Agency agreement with the listing agent chosen by the wife;
(b)The husband shall retain a solicitor in New South Wales the identity of whom is to be agreed between the parties and who shall be instructed by the wife and husband to prepare a Contract of Sale for the Suburb N property and to act on the sale. In the event that the parties do not reach agreement as to the identity of a solicitor to act on the sale, the following will apply:
(i)the wife shall serve upon the husband’s solicitors the names and contact details of three solicitors she proposes be retained by the parties; and
(ii)within seven days of service upon the husband, through his solicitors, of the written notice referred to at Order 8(b)(i) above, the Applicant shall select from the wife’s list the name of one solicitor and he shall notify the wife of his selection, in writing, via the wife’s solicitors; and
(iii)if the husband fails to comply with Order 8(b)(ii) above by failing to make a selection, then the wife shall be at liberty to select the solicitor to act on behalf of the parties as vendors in relation to the sale of the Suburb N property and within a further seven days of being notified of her selection, the husband shall do all acts and things to retain and instruct such solicitor;
(c)The husband shall not confer on any listing real estate agent, without the consent of the wife first obtained in writing, any right to any sole or exclusive agency in respect of the Suburb N property or as to any commission payable;
(d)The sale price and the listing price from time to time for the Suburb N property (together with the reserve price if the Suburb N property is being auctioned) shall be as mutually agreed between the parties, subject to Order 8(e) below;
(e)In the event the parties are ever in dispute for more than seven days as to listing price, the sale price and/or the reserve price for the Suburb N property, the listing price, sale price and (where applicable) the reserve price for the sale of the Suburb N property shall be determined by the single expert real estate valuer, Mr T of U Company whose decision as to listing price and/or reserve price and /or sale price for the Suburb N property shall be binding upon the parties. Each party shall pay, as and when the same falls due and payable, one half of Mr T's fees for providing his opinion as to listing price, reserve price and/or sale price for the Suburb N property;
(f)The husband shall execute a Contract for Sale of the Suburb N property in the form prepared by the solicitor having conduct of the sale at a price agreed between the parties, or in the absence of agreement, at such price determined by the registered real property valuer appointed pursuant to Order 8(e);
(g)The husband shall irrevocably authorise and direct the listing agent for the Suburb N property, the solicitor retained to act on the sale of the Suburb N property and the registered real property valuer appointed pursuant to Order 8(e) above to communicate with the wife and her solicitors, Barkus Doolan Family Lawyers, and to provide to the wife and her solicitors, Barkus Doolan Family Lawyers (as she and/or her solicitors might request), information and documents pertaining to the sale of the Suburb N property;
(h)The husband shall not enter into any binding contract to sell the Suburb N property unless and until all of the following criteria are met:
(i)the wife has confirmed, in writing, that she consents to the husband entering into such binding contract; and
(ii)the sale price for the Suburb N property has been agreed between the parties in writing or has been determined by the single expert valuer, Mr T, pursuant to the provisions of Order 8(e).
9.Upon completion of the sale of the Suburb N property, the husband shall do all acts and things, sign documents, and provide all necessary instructions and directions to cause for the proceeds of sale of the Suburb N property to be applied and disbursed in the following manner and priority:
(a)In payment of agent’s commission, legal/conveyancing fees payable by the husband as vendor of the sale of the Suburb N property, and any and all unpaid marketing and advertising fees on the sale;
(b)in payment sufficient to discharge in full all mortgages and encumbrances registered on title to the Suburb N property;
(c)in payment of the sum of $507,591 to the wife together with interest as accrued from the due date until the date such payment is received by the wife; and
(d)in payment of the balance then remaining to the husband.
10.Pursuant to s 90ST of the Family Law Act 1975 (Cth), these orders are intended to bring an end to all financial relations between the parties and to avoid further proceedings between them.
11.The parties shall do all acts and things and execute all documents, deeds and instruments as are required of them to give effect to these orders in the time periods prescribed by these orders.
12.In the event that either party refuses or neglects to execute any deed, document, or instrument necessary to give effect to any or all of these orders, then a Judicial Registrar of the Federal Circuit and Family Court of Australia, Sydney Registry is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents, deeds and instruments in the name of the refusing and/or neglecting party.
13.All outstanding applications, as between the parties, for property adjustment following breakdown of their de facto relationship are dismissed.
14.The husband’s Amended Initiating Application filed 5 February 2021, including but not limited to the declaratory relief sought therein, is dismissed.
15.The parties shall each pay their own costs of and incidental to these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parmentier & Yates has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in a dispute between the parties about the alteration of their property interests.
BACKGROUND
The following facts are drawn from the joint chronology prepared by the parties for the purposes of the hearing.
The applicant de facto husband (“the husband”) in this case is 52 years old, and the respondent de facto wife (“the wife”) is 44 years old. They commenced their relationship in 2014 and commenced cohabitation in 2015. The wife has a son from a previous relationship, D, who is now 13 years old. D lived with the parties throughout their relationship except when he was spending time with his father or his stepmother. The parties have one child from the relationship, B, who was born in 2016 and is five years old.
There is a dispute about the date of separation. The husband alleges that separation occurred under the one roof on 29 January 2017, and physical separation on 19 August 2017. The wife alleges that even though there was a short period of separation in 2017, the date of final separation was in fact 19 August 2017 when she and B moved out of the family home. Very little turns on this.
The family home is at Suburb N (“the Suburb N property”). The husband asserts that he purchased the Suburb N property together with his former wife in 1998. In 1999 he asserts that his parents advanced a loan to him of $30,000 for kitchen renovations to the Suburb N property. The husband asserts that in 2001 he finalised the property settlement with his former wife, and became the sole registered owner subject to a mortgage over the property in consideration of a cash payment to his former wife in the sum of $200,000.
In 2001 the husband was made redundant from his employment. He asserts that he approached his parents for a loan to meet the mortgage payments on the Suburb N property. The husband asserts that in 2001 he entered into a loan agreement with his parents to cover the $30,000 kitchen renovation loan, and the mortgage repayments, in return for which his parents would receive a 25 per cent net equity in the Suburb N property. If this was not repaid by the time that his parents died, there would be an adjustment to their estate to account for this loan. He contends that his parents paid $48,370 towards his mortgage repayments. Accordingly, for the purposes of the present hearing he contended that his interest in the Suburb N property was, in effect, a three-quarter interest. This was one of the main issues in the case.
At the time of cohabitation, both parties were working full-time. The husband asserts that D was spending equal time with his mother, and that this increased when D’s father was deployed to Country S in 2015–2016.
B was born in 2016. The mother asserts that she ceased work to prepare for his birth in 2015, but the husband asserts this took place in 2015. Nothing turns on this.
The parties are in dispute about who was the primary carer for B after he was born. The husband asserts he took on a greater parenting role. The husband became unemployed in December 2015 and remained as such until March 2016. He then returned to work on a part-time basis, and this progressed to full-time in July 2016. The husband stopped working again in December 2016 and in fact did not recommence paid employment until after they separated. The wife returned to work in December 2016, initially on a part-time basis.
The period between January 2017 and August 2017 appears to have been a tumultuous one for the parties. There seems little doubt that final separation took place in August 2017, and that they cohabited in the same residence between January and August 2017 though not necessarily continuously. By May 2017 the wife had commenced work full-time, and this meant that the husband took on a bigger role in caring for B.
Since the date of separation B has been living with his mother, but spending time with his father. The parties entered into final consent orders in relation to B spending time with his father on a substantial and significant time basis.
The present proceedings commenced in September 2017. There were a number of financial transactions post-separation which will be discussed in the reasons below, where relevant. The husband paid child support as assessed. He has been unemployed but in receipt of Centrelink benefits for certain periods. From October 2020 to February 2021 he secured contract employment. At the time of the hearing the husband had been interviewed for a position but was ultimately unsuccessful.
COMPETING PROPOSALS
The orders sought by the husband had the effect of adjusting property interests between the parties so that he was assessed as having contributed 95 per cent to the asset pool, but with an adjustment of 2.5 per cent in the wife’s favour, meaning that he would receive 92.5 per cent while the wife would receive 7.5 per cent of the total asset pool.
The orders sought by the wife had the effect of adjusting property interests between the parties so that she was assessed as having contributed 22.5 per cent to the asset pool, with a further 15 per cent adjustment in her favour, meaning that she would receive 37.5 per cent of the total asset pool.
The precise orders sought by each party are reproduced at Schedule A to these reasons.
It was common ground that the Court would adopt a global approach to the assessment of the parties’ contributions and future needs. The parties did not seek any splitting order of each party’s superannuation entitlements. Of course, such superannuation entitlements would be considered as part of the global approach.
THE EVIDENCE
In support of his case, the husband relied on the following documents:
(a)His Amended Initiating Application (including Points of Claim) filed 5 February 2021;
(b)His Financial Statement filed 30 August 2021;
(c)His Undertaking as to Disclosure filed 30 August 2021;
(d)His Affidavit filed 30 August 2021;
(e)Affidavit of Mr F filed 30 August 2021;
(f)Affidavit of Ms G filed 30 August 2021;
(g)Affidavit of Ms H filed 30 August 2021; and
(h)Various documents tendered and marked as exhibits A1 to A11.
In support of her case, the wife relied on the following documents:
(a)Her Further Amended Response to Initiating Application (including Points of Defence), filed 25 March 2021;
(b)Her Affidavit filed 30 August 2021;
(c)Her Updated Financial Statement filed 30 August 2021;
(d)Affidavit of Ms J filed 30 August 2021;
(e)Her Undertaking as to Disclosure filed 30 August 2021;
(f)Her Notice of Child Abuse, Family Violence, or Risk of Family Violence filed 5 October 2017;
(g)Her Financial Questionnaire filed 9 July 2018; and
(h)Various documents tendered and marked as exhibits R1 to R13.
THE APPLICABLE LAW
This is an application under s 90SM of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”) which relevantly provides:
Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
Note 1: The geographical requirement in section 90SK must be satisfied.
Note 2:The court must be satisfied of at least one of the matters in section 90SB.
Note 3: For child of a de facto relationship , see section 90RB.
(2)If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(3)The court must 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.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship 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 de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SM(4) incorporates the provisions contained in s 90SF(3) of the Act, which states:
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(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
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (4), 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
(g) a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)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
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; 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
(p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; 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
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
In Bevan & Bevan (2013) 49 Fam LR 387 (“Bevan”) the Full Court of the Family Court of Australia (as it was then known) considered the High Court’s decision in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”) which provided guidance on how s 90SM of the Act was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93–143 (“Hickey”), but on the basis that it is a shorthand distillation of the words of s 90SM, as opposed to being a statutory edict. The four steps articulated in Hickey at [39] are:
(1)Identify and value the property, liabilities and financial resources of the parties; and
(2)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
(3)Identify and assess the other factors relevant under s 90SM(4)(d)–(g) including s 90SF(3) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
(4)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s 90SM(4), independent of the s 90SF(3) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s 90SM of the Act), indicated that they themselves consider it just and equitable that some order be made under s 90SM adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey.
A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. This disposed of property may still be significant, however. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it. It would seem that notionally adding back such property may still be appropriate in some cases. In Vass & Vass (2015) 53 Fam LR 373, the Full Court said at [138]:
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108 – is authority for any necessary contrary solution.
As the Full Court noted in Chorn & Hopkins (2004) FLC 93–204 at [24] and indeed in many other cases, there is no basis for adding back monies that existed at separation but which have been spent on reasonably incurred necessary living expenses.
THE BALANCE SHEET
The parties agreed to a balance sheet which was tendered as exhibit A11 and which is reproduced below:
Ownership Description Applicants value Respondents value ASSETS 1. DFH M Street, Suburb N NSW $ 1,631,250
(75% interest)$ 2,175,000
(100% interest)2. J K Bank Savings account #…42 $ NIL $ NIL 3. DFW Funds in Bank Accounts (see notes) $ 17,436 $ 17,436 4. DFW Funds in Barkus Doolan's Trust Account $ 20,825 $ Exclude 5. DFH K Bank account #…99 $ 2,696 $ 2,696 6. DFH K Bank Savings account #…84 $ NIL $ NIL 7. DFH L Company Card Account #…92 $ 3,000 $ 3,000 8. DFH Motor Vehicle 2 - Registration number $ E 12,700 $ E12,700 9. DFH Motor Vehicle 1 $ E 13,150 $ E 13,150 10. DFH Household Contents $ E 5,000 $ E 5,000 Total $ E 1,706,057 $ E 2,228,982
ADDBACKS 11. DFH Addback against DFH for savings held at time of separation (including as expended on legal fees) $ NIL $ 90,300 12. DFH Addback against DFH – early release of superannuation entitlements post separation $ NIL $ 20,000 13. DFH Addback against DFH – sale of Motorbike 1 sold post separation as previously valued by DFH in Financial Statement $ NIL $ 7,000 14. DFH Addback against DFH – sale proceeds of shares formerly held in P Company but sold post separation $ NIL $ 2,630 Total $ NIL $ 119,930 LIABILITIES 15. DFW Loan from Ms J & Mr J (part loan relating to rent and living expenses (but excluding legal fees) $ NIL $ 34,100 16. DFW ANZ Frequent Flyer Platinum Visa #…59 $ NIL $ 439 17. DFH K Bank Mortgage Account #…72 $ 106,464 $ NIL Total $ 106,464 $ 34,539 SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 18. DFW R Super Fund Accumulation $ 194,087 $ 194,087 19. DFH Q Super Fund Accumulation $ 428,901 $ 428,901 Total $ 622,988 $ 622,988
FINANCIAL RESOURCES Ownership Description Applicants value Respondents value . $ $ Total $ NIL $ NIL TOTAL NET VALUE (including superannuation) $ 2,222,581 $ 2,937,361
A number of issues arise for determination from the balance sheet.
Item 1: the Suburb N property
The husband contends that the Suburb N property is held on trust for his parents as to a 25 per cent share. The husband’s evidence about this trust commences from [147] of his trial affidavit filed 30 August 2021. He contends that in 1999 his parents provided him with a loan of $30,000 to renovate the kitchen. After the husband separated from his first wife, he was made redundant from his employment and thus was unable to meet the mortgage payments on the property. He approached his parents who agreed to help him with the mortgage on the basis that their investment would represent a 25 per cent share in the future value of the property. In 2001 a written agreement was prepared entitled “Memorandum of Interest”. This handwritten document was in evidence. It is not a stamped document in terms of New South Wales state stamp duty. It purports to be an agreement between the husband and his father, Mr F, and mother, Ms F, though the latter did not sign the document.
Order 37 of the orders sought by the husband seeks a declaration that he holds a 25 per cent beneficial interest in the property on constructive trust for Mr F and Ms F. Curiously, they are not parties to the proceedings. The husband’s Points of Claim annexed to his Initiating Application filed on 5 February 2021 purports to plead the facts on which the constructive trust is alleged to exist. Ms F gives no evidence in her son’s case. Mr F does give evidence about this in his affidavit filed 30 August 2021. It is broadly consistent with the evidence of the husband.
There is no dispute, and the Court finds, that the husband’s parents did provide to him $30,000 so that he could renovate the kitchen on the Suburb N property, and a sum of money which the husband contends was about $48,000 by way of mortgage repayments on the property between February 2002–July 2003. These transactions took place well before the commencement of the relationship between the parties.
Counsel for the husband made a number of entirely appropriate concessions about the transaction discussed above. She conceded that it was not a commercially beneficial arrangement from the husband’s perspective and that the Court would not be bound by any agreement between the husband and his parents. Counsel further conceded that there was no evidence that Ms F had signed anything or, indeed, even knew about the constructive trust or wanted the benefit of the same. The Court makes the obvious observation that it was not an arm’s length transaction.
When Mr F was cross-examined about the transaction it was clear that his recollection was imprecise. Whilst he agreed that his affidavit purported to set out the precise words used, he conceded it was only to the best of his recollection. He did not recall whether it was a face-to-face conversation or conversations with his son. At the time the money was advanced, there was no written agreement, but he did expect the money to be repaid. His recollection of the $30,000 loan for the kitchen renovations was clear, but he conceded in cross-examination that the figure representing the mortgage repayments was provided by his son. In cross-examination he conceded that even though the agreement gave him an interest in his son’s house, this is not what he wanted, but rather something that his son proposed. He did not even know what the value of his son’s house was at the time.
The Court finds that there is insufficient evidence to establish a constructive trust in favour of the husband’s parents. In Khalif & Khalif [2021] FamCAFC 123 at [7]–[14] the Full Court summarised the requirements for the establishment of a common intention constructive trust. The Court accepts the submissions of senior counsel for the wife to the effect that the requirements have not been established. The evidence does not establish that there was a common intention as to the ownership of the beneficial interest as between the husband and his parents. Quite apart from the fact that there is no evidence that the husband’s parents are claiming a beneficial interest, there is no evidence of their acting to their detriment. Accordingly, the husband’s claim as to the existence of a 25 per cent interest in the Suburb N property being held in trust for his parents is dismissed. Item 1 of the balance sheet should show Suburb N at its full agreed value of $2,175,000.
Item 4: funds in trust account
The husband contends that the sum of $20,825 held by the wife’s lawyers in trust for her, and on account of legal fees, should be included in the balance sheet. His counsel conceded, however, that the amount in question would have been used for the wife’s legal costs of the hearing. Accordingly, item 4 should read “NIL” on the balance sheet.
Items 11–14: add backs of funds used by the husband
The wife initially contended that a total of $119,930 should be added back to the pool of assets available for distribution as notional property on the basis that the husband had prematurely distributed these funds. In effect, the wife was contending that these funds should be available for the purposes of the Court altering the property interests of both the husband and the wife but, as the husband had use them for his own purposes, she was deprived of this opportunity (Omacini & Omacini (2005) FLC 93–218 at [30]).
There are four categories of asserted prematurely distributed funds. Item 11 deals with savings held at the time of separation. Item 12 represents an early release of superannuation entitlements after separation. Item 13 represents the sale proceeds of a motorcycle sold after separation. Item 14 represents the sale proceeds of shares formerly held, but sold after separation.
On behalf of the husband it was submitted that the evidence demonstrated that as a result of the substantial periods in which the husband was unemployed after separation, he used the resources in question for his reasonable living expenses and thus it would be inequitable for these sums to be added back (Chorn & Hopkins (2004) FLC 93–204 at [24]). Moreover, the monies represented at item 11 were used to purchase the motor vehicle at item 8, and thus there should be an adjustment to reflect this, and to avoid double dipping.
Counsel for the husband conceded, however, that some part of these funds were inevitably used to pay the husband’s legal fees. Indeed, it was common ground that the husband had incurred total legal fees, excluding the trial, of $183,550.71. This amount, of course, significantly exceeds the total amount sought to be added back. The husband’s counsel quite properly conceded that some part of item 17, the amount of the drawdown on the mortgage, must represent an amount that the husband needed for his reasonable living expenses. Again, counsel quite properly conceded that on the evidence, it was not possible to identify with particularity what part of the husband’s post separation earnings (from all sources) was applied for a specific use, for example living expenses or legal expenses.
Senior counsel for the wife contended that it is clear that the husband was able to fund all of his legal fees using the resources he had available to him including the assets prematurely distributed at items 11–14. She submitted that another option for the Court was to in fact add back the entirety of the legal fees.
The husband’s costs memorandum dated 20 September 2021 establishes that costs incurred to the date of the trial total $183,550.71. The same document establishes that the fees were paid from the husband’s savings, tax refunds 2016–2018, jobseeker payments, superannuation release, draw downs on prepayments of the mortgage over the Suburb N property, and income from employment between October 2020 and February 2021. Indeed, the evidence suggests that these sources represent the totality of the husband’s income for the relevant period.
The difficulty for the Court, indeed for all parties, is to establish the purpose for which all of these funds were used. It is at least implicit from the husband’s costs memorandum that the sources of the funds used to pay the husband’s legal fees, were quantitatively greater than the amount of those fees. Indeed, the strong impression formed from the totality of the evidence is that the same source used to pay for legal fees was also used to pay for living expenses. There was simply no other known source that could have been used for living expenses.
The husband is entitled to reasonable living expenses, even if that is funded from monies to which the wife is deemed to have contributed. Moreover, monies representing the husband’s post separation income does not necessarily need to be brought into account in the present context. Given the husband’s counsel’s appropriate concession that it was not possible on the evidence to identify which funds were used for what purpose post separation, a broad brush approach is appropriate. All of his legal fees paid will be added back and thus the total of items 11–14 will be $183,550 but the balance owing on the mortgage account at item 17, $106,464, will be allowed to recognise the husband’s reasonable living expenses post separation.
Item 15: loan to wife from her parents
The wife contends that this liability incurred by her should be shared by the husband, and thus appear on the balance sheet. The husband opposes this. Firstly, there is no suggestion of an add-back – only that this was a liability incurred reasonably by the wife to fund her post separation living expenses. Secondly, however, on behalf the husband it was contended that there was in fact no obligation to repay that loan. There is substance in this submission. The evidence suggested a long history of parental beneficence towards the wife. The Court does not accept the evidence of the wife or her mother that this is a bona fide loan. In any event, the Court does not accept the concept that all of the wife’s post separation living expenses which could not be funded from her income from all sources should necessarily be underwritten or subsidised by the husband. The evidence is clear – for most of the period since separation the husband has been unemployed. In retrospect, it is hard to see that, for example, the husband consistently had the income that would have met the wife’s needs. The claim to item 15 is not allowed, and should read “NIL”.
Item 16: ANZ Visa card
The Court does not discern the basis on which this clearly post separation liability of the wife’s should find its way onto the balance sheet. Item 16 should read “NIL”.
Conclusions in respect of the balance sheet
Having regard to the Court’s findings above, the balance sheet is as follows:
Ownership Description Value ASSETS 1. DFH M Street, Suburb N NSW $ 2,175,000
2. J K Bank Savings account #…42 $ NIL 3. DFW Funds in Bank Accounts (see notes) $ 17,436 4. DFW Funds in Barkus Doolan's Trust Account $ NIL 5. DFH K Bank account #…99 $ 2,696 6. DFH K Bank Savings account #…84 $ NIL 7. DFH L Company Card Account #…92 $ 3,000 8. DFH Motor Vehicle 2 - Registration number $ E 12,700 9. DFH Motor Vehicle 1 $ E 13,150 10. DFH Household Contents $ E 5,000 Total $ E 2,228,982
ADDBACKS 11. DFH Addback against DFH for savings held at time of separation (including as expended on legal fees)Addback against DFH for legal fees paid$ 183,550 12. DFH Addback against DFH – early release of superannuation entitlements post separation$ NIL 13. DFH Addback against DFH – sale of Motorbike 1 sold post separation as previously valued by DFH in Financial Statement$ NIL 14. DFH Addback against DFH – sale proceeds of shares formerly held in P Company but sold post separation$ NIL Total $ 183,550 LIABILITIES 15. DFW Loan from Ms J & Mr J (part loan relating to rent and living expenses (but excluding legal fees) $ NIL 16. DFW ANZ Frequent Flyer Platinum Visa #…59 $ NIL 17. DFH K Bank Mortgage Account #…72 $ 106,464 Total $ 106,464 SUPERANNUATION Member
Name of Fund
Type of Interest
Value
18. DFW R Super Fund Accumulation $ 194,087 19. DFH Q Super Fund Accumulation $ 428,901 Total $ 622,988 FINANCIAL RESOURCES Ownership
Description
Value
. $ Total $ NIL TOTAL NET VALUE (including superannuation) $2,929,056 ASSESSMENT OF CONTRIBUTION
The husband submitted the contribution should be assessed in his favour as to 92.5 per cent. The wife conceded the contribution should be assessed to be greater in the husband’s favour, but at 77.5 per cent. Accordingly, on the husband’s case, the wife’s contribution would be assessed at 7.5 per cent, and on the wife’s case, the wife’s contribution would be assessed at 22.5 per cent.
The relationship between the parties was comparatively short. If one accepts that the date of separation is 19 August 2017, the relationship lasted just under three years. If the length of the relationship is measured by reference to the date of cohabitation, it is an even shorter relationship. There can be no doubt, however, that assessment of contribution takes into account contributions made after the date of separation, and up until the date of the hearing (Farmer & Bramley (2000) FLC 93–060 at [68]).
There is no doubt that the husband brought into the relationship the most significant asset on the balance sheet: the home at Suburb N. He had the benefit of financial assistance from his parents. He also has far greater superannuation compared to the wife, and substantial savings as well.
The Suburb N property probably increased in value during the course of this short relationship. It is an arid argument to consider who made the greater contribution to this increase in value. Both parties advocated for a global approach to assessment of contribution. This is entirely appropriate. Thus, whether the wife contributed, for example, 10 per cent to the increase in the value of the Suburb N property, or made no contribution in this regard, the parties invite the Court to make a global assessment of contribution.
The husband was unemployed for a substantial period during cohabitation. The wife was employed for a substantial period during cohabitation. The Court does not accept that either party worked less than to their capacity, despite the wife’s assertion in her evidence in this regard. The impression formed from the evidence is that whatever income they earned was pooled and used for the benefit of their family unit. There was an attempt in cross-examination to dissect the family income and expenditure with a view to suggesting that one party’s contribution financially was inferior to that of the other. This attempt was not successful.
Both had superannuation entitlements at cohabitation, and these entitlements have grown significantly both as a result of contributions they have made out of their income, but also because of what seems to be significant fund growth. Both had savings and motor vehicles as well as personal effects. The wife concedes that the husband had substantially greater savings than her own.
Both parties made contributions as homemaker and parent, but post separation through to the date of the trial there is no doubt that the wife’s contribution was greater as she had a greater share of the responsibility to care for their son B.
A global approach to the assessment of contribution invites a broad brush approach to the assessment of the same. The husband’s financial contribution is overwhelmingly greater than the wife’s, but the wife’s non-financial contribution, particularly as parent to B was also significant. His overall contribution was greater to the date of separation, but hers was much greater afterwards.
The pool of superannuation and non-superannuation assets totals $2,929,056. It is interesting to note that on the husband’s contention that the wife should receive 5 per cent in recognition of her contribution, she would receive $146,452 which is less than the current value of her superannuation. Even the husband’s contended final result that the wife should receive 7.5 per cent would only give her $219,679, marginally more than her current superannuation entitlement. The inadequacy of the husband’s proposal is therefore plainly evident.
By reference to the evidence, and taking into account contribution whether financial or non-financial, direct or indirect, and as homemaker and parent, the Court assesses the wife’s contribution to be 15 per cent or $439,358.
ASSESSMENT OF FUTURE NEEDS
The husband concedes a future needs adjustment in the wife’s favour of 2.5 per cent. The wife seeks settlement adjustment of 15 per cent.
The husband is currently unemployed, but the evidence suggests an impressive skill set that mitigates against the prospects of future long-term unemployment. For as long as he is unemployed, his ability to contribute towards the needs of B will be inhibited, but the Court doubts that this will be long term.
The wife is currently employed earning $98,000 per annum and there is nothing to suggest that her future capacity for employment will be inhibited. It is probable that the husband has a greater earning capacity than that of the wife, as is evidenced by his historical income.
Both parties appear to be in good health.
B lives with his mother, but spends substantial and significant time with his father.
Both will have liabilities to meet some personal debts. In these reasons, the Court has expressed scepticism about whether the wife will need to repay her mother and stepfather all of the monies that they generously provided to her. The evidence is somewhat clearer in relation to the husband’s liability to his parents, but it is equally possible that his liability to them will not crystallise during either his, or their lifetime.
Both parties have financial resources in the form of their highly supportive parents.
The husband supported the wife in the care of her son D.
As a result of these orders, the husband will have considerably greater property and financial resources compared to that of the wife.
Having regard to the evidence and to the matters identified above, the Court assesses the wife’s future needs to be 10 per cent.
A JUST AND EQUITABLE ORDER
The parties themselves agreed that an order altering their property interests was just and equitable, and that it was, in effect, for the Court to quantify this. The Court has assessed contribution in favour of the wife at 15 per cent, and a further adjustment for her future needs at 10 per cent. This means that the wife receives 25 per cent of the net available combined assets less the value of items she already retains.
The dollar value of 25 per cent of the balance sheet as found by the Court is $732,264. The assets already owned by the wife consist of her savings at item 3 and her superannuation at item 18, totalling $211,523. In addition, she seeks an order that she retain the Motor Vehicle 1 at item 9, which is valued at $13,150, thus taking the value of the assets that she retains to $224,673. This means that the husband would need to pay to the wife the sum of $507,591, on the basis, of course, that each retained their respective superannuation entitlements.
Both sets of orders advanced by the parties contemplate that the husband would make a cash payment to the wife, and that if he were unable to do so within a finite time, the Suburb N property would need to be sold. The husband proposed that he be allowed 56 days to make the payment to the wife, a period of time that the Court considers to be appropriate. As for the specific form of the orders, the Court prefers that proffered on behalf of the wife.
CONCLUSION
On the scenario contemplated above, the wife receives a total of $732,264, and the husband $2, 196,792.
The Court is satisfied that these orders are as just and equitable as the circumstances permit, particularly having regard to the disparity between the assets brought into the relationship by the husband as compared to the wife, and the short duration of the relationship.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 12 January 2022
SCHEDULE A
Orders sought by the husband
37. A declaration pursuant to Section 90SL (1) of the Family Law Act 1975 that the Applicant holds a 25% beneficial interest in the property known as M Street, Suburb N NSW being all of the land in folio identifier … (“Suburb N property”) on constructive trust for Mr F and Ms F.
38. That within 56 days of the date of these Orders the Applicant pay to the Respondent $X by way of property adjustment pursuant to Section 90SM of the Family Law Act 1975 where:
X= (12.5% x NAP) – RP, and;
NAP is the net asset pool; and
RP is the property to be retained by the Respondent De Facto Wife, being the following:
38.1.All funds standing in bank accounts in the Respondent’s sole name;
38.2.Any and all superannuation entitlement in the Respondent’s name;
38.3.The Motor Vehicle 1, registration number …; and
38.4.All items of personal property, furnishings and effects.
39. That within 28 days of the date of these Orders the Applicant shall do all acts and things and sign all documents to transfer to the Respondent the whole of his right, title and interest in the Motor Vehicle 1, registration number … at the expense of the Respondent.
40. That within 14 days of the date of these Orders the Respondent shall do all acts and things and sign all documents to remove herself as a signatory of the joint K Bank account # …40 and thereafter relinquish all legal right or entitlement to any funds contained in the account.
41. That should the Applicant default in payment of the settlement sum to the Respondent in accordance with Order 3, then the Applicant shall forthwith take all necessary steps and execute all documents to cause the Suburb N property to be sold for the best price achievable.
42. The Applicant shall co-operate in every way with the Agent, without limiting the generality of the foregoing:
42.1.1.Making the keys of the Suburb N property available to the Agent;
42.1.2.Signing all documents required by the Agent associated with the sale of the Suburb N property;
42.1.3.Executing a contract for sale in the form prepared by the solicitor having conduct of the sale of the Suburb N property;
42.1.4.Allowing inspection of the Suburb N property at all reasonable times as requested by the Agent; and
42.1.5.Not doing or saying anything to hinder or prevent a sale being effect.
43. That upon the sale of the Suburb N property, the proceeds of the said sale be disbursed as follows:
43.1.Discharge of all mortgages secured against the property;
43.2.25% of the total market value and sale price to the Applicant’s parents, Mr F and Ms F in accordance with the terms of the Memorandum of Interest as executed by the parties on 18 December 2001;
43.3.Payment of agent’s commission, marketing and advertising expenses, auctioneers’ fees and legal expenses of the sale.
43.4.Payment of any amount outstanding to any water authority or local council in respect of the Suburb N property.
43.5.The net balance to be divided as to:
43.5.1.$X to the Respondent where:
X = (12.5% x NAP) - RP (with the value of the Suburb N property being the remainder of the net proceeds of sale after expenses at 7.1 to 7.4 have been paid).
43.5.2.Any remaining balance to the Applicant.
44. That other than as provided by these Orders each of the parties shall be solely entitled to all property and financial resources presently in his or her name, possession or control.
45. That other than as provided by these Orders each of the parties shall be solely liable for all debts and liabilities held in their respective names.
46. That should either party (“the defaulting party”) fail to do any act or thing required by these orders the party whom is not in default (“the Applying party”) may apply to a Registrar of the Court to execute such documents(s) as may be required in accordance with Section 106A of the Family Law Act 1975 and the defaulting party shall be responsible for any cost incurred by the Applying party on an indemnity basis.
47. The Respondent shall pay the Applicant’s costs of and incidental to these proceedings.
Orders sought by the wife
23. That an Order be made by way of alteration of property interests pursuant to Section 90SM of the Family Law Act 1975 (Cth) in terms of paragraphs 24 to 34 and that further Orders are made in accordance with the balance of paragraphs appearing herein.
24. That within 42 days of the date of these Orders ("due date"), the Applicant pay to the Respondent, by way of cleared funds, the sum of $911,751 ("the payment").
25. That within 14 days of the date of these Orders, the Applicant shall do all acts and things, and sign all documents as may be required to transfer to the Respondent, at the Respondent's cost, sole legal and beneficial ownership of the Motor Vehicle 1 registration number ….
26. Subject to compliance by the Applicant with his obligations pursuant to paragraphs 24 and 25, the Applicant shall retain sole legal and beneficial ownership of the following to the exclusion of the Respondent:
26.1.His interest in M Street, Suburb N in the State of New South Wales being the whole of the land and improvements thereon comprising Folio Identifier FI … (“the Suburb N property”);
26.2.His Motor Vehicle 2;
26.3.all proceeds of sale derived from the sale of his Motorbike 1;
26.4.all proceeds of sale derived from the sale of his P Company Shares;
26.5.all funds held at bank in accounts in the Applicant's sole name;
26.6.the furniture, contents and items remaining in the Suburb N property; and
26.7.all of the Applicant's superannuation entitlements held with Q Super Fund.
27. The Respondent shall retain sole legal and beneficial ownership of the following to the exclusion of the Applicant:
27.1.all funds held at bank in accounts in the Respondent's sole name;
27.2.all furniture and contents in the Respondent's possession, custody and control: and
27.3.all of the Respondent's superannuation entitlements held with R Super Fund.
28. Each party shall otherwise be and remain solely liable for his/her own personal debt and shall indemnify and keep indemnified the other party in respect of the same.
29. Pending payment to the Respondent of the payment as referred to at paragraph 24, and unless otherwise agreed in writing or ordered by the Court, the Applicant is restrained from:
29.1.transferring, disposing of, and/or otherwise dealing with his interest in the Suburb N property other than to fulfil his obligations under these Orders;
29.2.mortgaging and/or further encumbering the title to the Suburb N property other than to fulfil his obligations under these Orders; and
29.3.doing any act or thing, or authorising any other person acting on his behalf to do any act or thing, which has the effect of causing for the amount owing under any mortgage registered on title to the Suburb N property to increase beyond the current balance owing (including redraw), other than to fulfil his obligations under these Orders.
30. In the event the Applicant fails or neglects to make the payment to the Respondent of the amount referred to at paragraph 24 within the time period prescribed by these Orders, then forthwith and within 14 days thereafter the Applicant shall do all acts and things, sign all documents, and provide all necessary consents to cause for the Suburb N property to be forthwith listed for sale and to thereafter sell the Suburb N property for the highest attainable price as agreed between the parties by way of private treaty or, if agreed between the parties, by public auction.
31. For the purposes of effecting a sale of the Suburb N property, the following shall occur:
31.1.The Applicant shall retain a real estate agent as agreed between the Applicant and Respondent in writing. In the event that the parties do not reach agreement to the identify of a listing agent the following shall apply:
31.1.1.the Respondent shall serve upon the Applicant's solicitors the names and contact details of three listing agents the Respondent proposes be retained by the Applicant to sell the Suburb N property; and
31.1.2.within 7 days of service upon the Applicant, through his solicitors, of the written notice referred to at subparagraph 31.1.1 above, the Applicant shall select from the Respondent's list the name of one listing agent and he shall notify the Respondent of his selection, in writing, via the Respondent's solicitors; and
31.1.3.within a further 7 days the Applicant shall do all acts and things, and sign all documents so as to enter into an Exclusive Agency Agreement with the listing agent chosen by the Applicant from the Respondent's list; and
31.1.4.if the Applicant fails to comply with subparagraph 31.1.2 above then the Respondent and/or her nominee shall be at liberty to select the listing agent to list, market and sell the Suburb N property and within a further 7 days of being notified of her selection, the Applicant shall enter into an Exclusive Agency agreement with the listing agent chosen by the Respondent;
31.2.The Applicant shall retain a solicitor in New South Wales the identity of whom is to be agreed between the parties and who shall be instructed by the Respondent and Applicant to prepare a Contract of Sale for the Suburb N property and to act on the sale. In the event that the parties do not reach agreement as to the identity of a solicitor to act on the sale, the following will apply:
31.2.1.the Respondent shall serve upon the Applicant's solicitors the names and contact details of three solicitors she proposes be retained by the parties; and
31.2.2.within 7 days of service upon the Applicant, through his solicitors, of the written notice referred to at 31.2.1 above, the Applicant shall select from the Respondent's list the name of one solicitor and he shall notify the Respondent of his selection, in writing, via the Respondent's solicitors; and
31.2.3.if the Applicant fails to comply with subparagraph 31.2.2 above by failing to make a selection, then the Respondent shall be at liberty to select the solicitor to act on behalf of the parties as vendors in relation to the sale of the Suburb N property and within a further 7 days of being notified of her selection , the Applicant shall do all acts and things to retain and instruct such solicitor;
31.3.The Applicant shall not confer on any listing real estate agent, without the consent of the Respondent first obtained in writing any right to any sole or exclusive agency in respect of the Suburb N property or as to any commission payable;
31.4.The sale price and the listing price from time to time for the Suburb N property (together with the reserve price if the Suburb N property is being auctioned) shall be as mutually agreed between the parties, subject to subparagraph 31.5 below;
31.5.In the event the parties are ever in dispute for more than 7 days as to listing price, the sale price and/or the reserve price for the Suburb N property the listing price, sale price and (where applicable) the reserve price for the sale of the Suburb N property shall be determined by the single expert real estate valuer, Mr T of U Company whose decision as to listing price and/or reserve price and /or sale price for the Suburb N property shall be binding upon the parties. Each party shall pay, as and when the same falls due and payable, one half of Mr T's fees for providing his opinion as to listing price, reserve price and/or sale price for the Suburb N property;
31.6.The Applicant shall execute a Contract for Sale of the Suburb N property in the form prepared by the solicitor having conduct of the sale at a price agreed between the parties, or in the absence of agreement, at such price determined by the registered real property valuer appointed pursuant to Order 31.5;
31.7.The Applicant shall irrevocably authorise and direct the listing agent for the Suburb N property, the solicitor retained to act on the sale of the Suburb N property and the registered real property valuer appointed pursuant to subparagraph 31.5 above to communicate with the Respondent and her solicitors, Barkus Doolan Family Lawyers, and to provide to the Respondent and her solicitors, Barkus Doolan Family Lawyers (as she and/or her solicitors might request), information and documents pertaining to the sale of the Suburb N property;
31.8.The Applicant shall not enter into any binding contract to sell the Suburb N property unless and until all of the following criteria are met:
31.8.1.the Respondent has confirmed, in writing, that she consents to the Applicant entering into such binding contract; and
31.8.2.the sale price for the Suburb N property has been agreed between the parties in writing or has been determined by the single expert valuer, Mr T, pursuant to the provisions of subparagraph 31 .5 of these Orders.
32. Upon completion of the sale of the Suburb N property, the Applicant shall do all acts and things, sign documents, and provide all necessary instructions and directions to cause for the proceeds of sale of the Suburb N property to be applied and disbursed in the following manner and priority:
32.1.In payment of agent’s commission, legal / conveyancing fees payable by the Applicant as vendor on the sale of the Suburb N property, and any and all unpaid marketing and advertising fees on the sale;
32.2.in payment sufficient to discharge in full all mortgages and encumbrances registered on title to the Suburb N property;
32.3.in payment of 42% of the balance then remaining to the Respondent together with interest as accrued from the due date until the date such payment is received by the Respondent; and
32.4.in payment of the balance then remaining to the Applicant.
33. Pursuant to Section 90ST of the Family Law Act 1975 (Cth), these Orders are intended to bring an end to all financial relations between the parties and to avoid further proceedings between them.
34. The parties shall do all acts and things and execute all documents, deeds and instruments as are required of them to give effect to these Orders in the time periods prescribed by these Orders.
35. In the event that either party refuses or neglects to execute any deed, document, or instrument necessary to give effect to any or all of these Orders, then a Judicial Registrar of the Federal Circuit and Family Court of Australia, Sydney Registry is appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute all such documents, deeds and instruments in the name of the refusing and/or neglecting party.
36. That all outstanding applications, as between the parties, for property adjustment following breakdown of their de facto relationship are dismissed.
37. That the Applicant's Amended Initiating Application filed 5 February 2021, including but not limited to the declaratory relief sought therein, be dismissed.
38. The Applicant shall pay the Respondent's costs of and incidental to these proceedings.
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