Richard and Briar (No. 3)

[2008] FamCA 285

FAMILY COURT OF AUSTRALIA

RICHARD & BRIAR (NO. 3) [2008] FamCA 285

FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT: Mr Richard

RESPONDENT: Ms Briar

FILE NUMBER: MLF 2377 of 2006

DATE DELIVERED: 20 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 20 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Ms Kourtis

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That service on the wife of the husband’s Application in a Case filed this day shall be dispensed with.

2. That the husband and wife shall forthwith do all acts and execute all documents necessary to sell the former matrimonial home situate at and known as C.

3. That pursuant to s 106A of the Family Law Act 1975 the Registrar or Deputy Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the wife, and to do all acts and things necessary to give validity and operation to all such deeds and documents so as to effect the sale of the former matrimonial home.

4. That the husband shall have sole discretion as to the terms and conditions of sale.

5. That upon settlement of the sale of the former matrimonial home, the proceeds of sale of the said property be used as follows:

   (a)To pay the reasonable expenses of the sale including agent’s commission, legal costs and disbursements;

   (b)To discharge the mortgage secured on the property to Homepath Pty Ltd; and

   (c)The balance be placed in an interest bearing trust account by the solicitors for the husband in the joint names of the husband and wife, or in the event that the wife’s tax file number cannot be ascertained, in the husband’s name and in those circumstances the husband shall be by himself, his servants or agents restrained from withdrawing or attempting to withdraw any part of the funds without court order first being obtained.

6. That the husband’s Application in a Case filed this day shall be otherwise dismissed.

7. That all other existing applications shall be adjourned for mention before me at 10.00am on 29 April 2008.

8. That all outstanding subpoenas shall be returnable at 9.30am on 27 March 2008.

9. That there shall be a transcript of my reasons given this day and the transcript shall be retained on the court file.

10. That the preparation of these orders shall be expedited forthwith.

IT IS NOTED

1. That as the wife cannot presently be located, if documents are not signed by her pursuant to paragraph 2 of these orders, the Registrar is requested to act immediately pursuant to paragraph 3 of these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 2377 of 2006

MR RICHARD

Applicant

And

MS BRIAR

Respondent

REASONS FOR JUDGMENT

1. Mr Richard and Ms Briar separated in May 2006.  They have a six‑year-old son.  There are interim orders in place pursuant to which the child has been living with his mother and seeing his father.  In February of this year, the child disappeared with his mother.  His father has been making efforts to find them, with many trips to court resulting in recovery orders, location orders, and a publicity order, amongst others.  To date there has been no success. 

2. Today the husband has an application in relation to the parties' property.  I will take the undertaking of his solicitor that it will be filed today.  I am satisfied that it cannot be served on the wife in the current circumstances and that it must proceed on an ex parte basis.  I am satisfied too that the orders he seeks are reasonable.  In essence, he wants to be able to proceed to sell the former matrimonial home, with a Registrar of the Court signing on behalf of the wife, with the husband determining the terms and conditions of sale, and with the proceeds being held on trust for the parties. 

3. The former matrimonial home is the parties' major asset.  The mortgage is high, the equity low.  The parties attended a Conciliation Conference on 8 November last year.  After that they apparently signed an exclusive sale authority with a real estate agent. 

4. The reserve price for the property was $275,000, although as it has been explained to me this morning, the agent wrote $275,000 to $285,000 on the authority.  In any event, late last year or early this year, the parties received an offer of $282,000.  They executed a contract of sale.  It was conditional upon a satisfactory building inspection report.  After that report was received, the prospective purchasers withdrew their offer. 

5. On 13 March this year, another offer was made, this time in the sum of $275,000.  The offer is open only until 3 April 2008, and given that it is the reserve price set by the parties, the husband, quite reasonably, is keen to accept the offer.  He should be put in a position where that can occur and the property can be sold and the proceeds held in trust.

6. Ms Kourtis has made it clear to me that when the husband seeks (in paragraph 5(b) of his application) that the mortgage “and any other encumbrance affecting the property” should be paid out, in fact there is only the mortgage encumbering the property.  I propose changing the wording of that sub-paragraph to ensure that it is clear that only the mortgage is to be paid out.  Any arguments about debts to parents or other people can be had in due course.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  20 March 2008