Pillai and Doshi (No 4)

[2010] FamCA 782

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO. 4) [2010] FamCA 782

FAMILY LAW – PROPERTY AND FINANCIAL ISSUES – Case management orders – Sale of property – Injunctions – Further hearing orders

APPLICANT: MR PILLAI

RESPONDENT: MS DOSHI

INDEPENDENT CHILDREN’S LAWYER: MS TOWNSEND-WYLDE

FILE NUMBER: DGC 664 of 2007

DATE DELIVERED: 8 JUNE 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 JUNE 2010

REPRESENTATION

THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MS MCCREADIE

SOLICITOR FOR THE RESPONDENT: PERRY WESTON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER MR TESORIERO

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER TOWNSEND WYLDE LAWYERS

Orders

IT IS ORDERED BY CONSENT:

1. THAT the husband and wife be and are each restrained from removing or causing the removal of the children S born … June 2004 and K born … January 2007 from the Commonwealth of Australia AND IT IS FURTHER ORDERED  that the Australian Federal Police place the names of the child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.

2. THAT as soon as practicable the husband serve a sealed copy of this order upon the proper officer of the Australian Federal Police AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.

IT IS FURTHER ORDERED

1. THAT W Real Estate be appointed as the real estate agents to conduct the sale, by auction of the property at W.

2. THAT the auction be scheduled for 10 July 2010 or otherwise as the parties may agree.

3. THAT the reserve price be fixed at no less than $390,000.

4. THAT paragraphs 4, 5, 6, 7 and 8 of the Orders pronounced by Cronin J on 24 February 2010 remain in full force and effect.

5. THAT the issue of the distribution of the proceeds of sale to both parties or other matters related to the payment of the sum to Legal Aid Victoria to facilitate the release of the caveat on title and other relevant financial issues be adjourned for hearing before Young J on 12 August 2010.

6. THAT the husband and wife each co-operate in all ways with the appointed real estate agent to facilitate the sale of the property at the best achievable price.

7. THAT the husband use his best endeavours to present the home and garden in a clean and tidy state and make available the home for open inspection or organised inspections in co-operation with the real estate agent at all times.

8. THAT the husband’s application in a case filed 7 May 2010 be otherwise dismissed.

9. THAT the further orders sought by the husband in paragraphs 32, 33, 34, 36, 37, 38 and 39 of his amended initiating application filed 7 May 2010 be dismissed.

10. THAT on or before Monday 9 August 2010 the husband and wife each make, file and serve an updated financial statement and serve a copy of that document upon the other party.

11. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

12. THAT the husband produce forthwith to the wife’s solicitor and counsel all financial documents or and related to income, taxation returns, superannuation, his liabilities and generally his financial circumstances and these documents are to be inspected over the next forty-five (45) minutes (but not copied) and then return to the husband at 2.00 p.m.

13. THAT otherwise all extant applications of a financial / property nature are to be adjourned for further hearing before Young J at 10.00 a.m. on 12 August 2010.

14. RESERVE liberty to each of the husband and wife, upon proper documentation filed, to mention the matter before Young J on a date to be fixed if the property does not sell at auction on or after 10 July 2010.

IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 664 of 2007

MR PILLAI

Applicant

And

MS DOSHI

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Pillai & Doshi, there remains the property and financial issues before the Court, as I have earlier dealt with and made orders upon the children and parenting matters. This matter has been before Cronin J and he ordered on 24 February 2010 that the husband transfer to the wife upon trust for sale the real property at W. By order, the wife was then to arrange the sale of that property, to appoint a real estate agent, and she was to be responsible for determining the terms and conditions of sale. An order was made under section 106A of the Family Law Act 1975 (Cth), the documents to be signed by a Registrar of this Court in the name of the husband.

2. Those orders also provided in paragraph 7 for the balance of moneys upon settlement to be dispersed by way of payment of the costs and expenses of sale, payment to Westpac Bank, payment to Victoria Legal Aid to discharge caveat and otherwise for the balance of moneys to be held in an interest bearing account in the joint names of the husband and wife pending further order of the Court.  I am advised this day that the husband filed a notice of appeal.  The matter was thereafter before Cronin J on 21 April of this year.  No stay was granted by the court.  The matter was thereafter listed before Strickland J on or about 29 April of this year, in terms of directions for appeal, and the husband at that time withdrew his appeal.

3. I have before me now an application in a case filed 7 May 2010 by the husband, and additionally, an amended application for final orders, both as to children and parenting orders, and as to property and financial orders.  Additionally, the husband has sought, in paragraphs 32-40 (inclusive) of that document, further orders, some of which are inappropriate and I intend to dismiss this day. 

4. By agreement, the parties have concluded that it is appropriate to make an airport watch list in respect of the two children.  Therefore each of them will be restrained from removing those children from the Commonwealth of Australia, pending written agreement between the parties and further order of the Court.  I emphasise to the parties that, unless the airport watch list order is discharged, the children will not be able to accompany either of them, or will not independently be able to travel.  The obligation on the parties is therefore to remember to vary or discharge these orders prior to any future travel arrangements. 

5. Returning to the property:  there has been mention in court, and seemingly, it is now by consent, that W Real Estate are to be appointed the agents to conduct the sale.  The intended auction date is in July 2010.  The real estate agent has assessed that the property should sell at a low price of $380,000 or upwards thereof.  The husband proposes the reserve price be $390,000.  The wife, through her counsel, agrees.  I will set the minimum price at $390,000.  The sale is to be on an unconditional cash contract, and settlement is to be no less than 60 days, but preferably 90 days, to allow the husband time to vacate the home. 

6. The husband is currently in occupation of the home.  I will not, at this stage, require him to vacate the home, pending sale.  His obligation is to present the home in a very reasonable, clean and tidy state.  It is in the interests of both parties to get the maximum price and that will be facilitated by a clean, well-presented home and gardens.  That obligation obviously falls to the husband, and he has indicated to the Court today that he well and truly understands his requirements in that regard, and that he will act to maximise the sale price.  I will generally provide an order for cooperation by the parties with the real estate agent.  I also observe the parties request an auction of the property on that day. 

7. In the husband’s application in a case of 7 May 2010, there are other orders sought that are inappropriate.  I do not deal with paragraph 2, relating to the children, as that is the subject of earlier orders and a family consultant’s report to be prepared.  I will not vary the orders of Cronin J of 24 February 2010, and in any event, those matters have moved forward by the withdrawal of the appeal, and there is otherwise no compelling or convincing new evidence now before me.  I will not make any order under section 114 of the Act. 

8. I will not make any additional order pursuant to section 106A of the Act. Insofar as the husband seeks payment of his debts of $44,000, or otherwise the balance of sale moneys over $280,000, all of those matters can be reconsidered by me on the adjourned hearing date of 12 August 2010. If the husband is to file a further application, he is permitted to encapsulate those matters dealing with the balance of proceeds of sale, after the payment of the mortgage debt to Westpac, and the payment of all moneys to Victorian Legal Aid, so their caveat can be uplifted.

9. Whilst I will therefore dismiss today those paragraphs 12, 13 and 14 of the husband’s interim application, I do not present any bar to him resubmitting an application dealing with the proceeds of those moneys.  Otherwise, the balance of that application will be dismissed.  I place a caveat upon legal costs, in that that needs to be determined at the end of the day, and the dismissal of paragraph 17 of the order sought in that interim application is no bar to the husband ultimately seeking to persuade the court that some payment of costs in his favour may be appropriate.  I make no further comment, but otherwise I intend that application to be dismissed. 

10. As to the amended initiating application, paragraphs 32 to 40 inclusive:  paragraph 32 is inappropriate.  Legal Aid must be paid moneys to uplift the caveat, and the property cannot settle without the caveat being discharged.  If there is any issue of the quantum of moneys paid to Legal Aid for that purpose, the husband can raise that matter before me on 12 August in the adjourned hearing date.  I am going to require both the husband and wife to file an updated financial statement, and that is a requirement prior to the adjourned hearing date.  I will not restrain the parents from leaving Victoria, as sought in paragraph 34;  that is inappropriate and that will be discharged. 

11. Otherwise, with the caveat of legal costs already pronounced, I will discharge paragraphs 36, 37, 38 and 39 as being beyond the jurisdiction of the court, or inappropriate, or in terms of the appointment of the independent children’s lawyer, that is ongoing and will remain ongoing, and it is highly inappropriate that such an order be sought at this stage.  For those general reasons, which I will have transcribed and placed upon the court file, I now intend to make further property and financial related orders, and also the appropriate airport watch list order in respect of the children. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: