Robertson & Robertson
[2010] FMCAfam 1483
•23 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTSON & ROBERTSON | [2010] FMCAfam 1483 |
| FAMILY LAW – Property settlement – undefended hearing – previous agreement reached – respondent’s obligations not fulfilled. FAMILY LAW – Costs – unnecessary additional costs due to respondent’s failure to engage – failure of respondent to comply with previous orders of the Court. |
| Family Law Act 1975 |
| Applicant: | MR ROBERTSON |
| Respondent: | MS ROBERTSON |
| File Number: | BRC 7301 of 2008 |
| Judgment of: | Burnett FM |
| Hearing date: | 23 November 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 23 November 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Family Law Solutions |
| There was no appearance by or on behalf of the Respondent |
ORDERS
That within 45 days of the date of this order, the applicant shall do all such acts and things and sign all such documents as may be required to transfer to the respondent at the expense of the respondent all of his right title and interest in and to the real property situate at and known as [Property B] in the State of Queensland (“the home”) and that the respondent shall obtain the release of the applicant from all liability pursuant to the mortgage registered on the home and indemnify the applicant for all rates, taxes and outgoings of or with respect to the home of whatsoever nature and kind.
That the respondent shall at the time of the transfer of the home, provide to the applicant a release of the applicant signed by the respondent’s parents from all liability the respondent alleges is owed by the applicant and the respondent to her parents (“the release”).
That in the event of the respondent failing to obtain the release of the applicant from all liability pursuant to the mortgage registered on the home and the release in relation to the debt alleged to be owed to the respondent’s parents then the applicant and respondent shall forthwith do all such acts and things and sign all such documents as may be required to effect a sale of the home and as by way of consequential arrangement that shall be made for the purposes of effect a sale:
(a)The listing price for the home shall be as agreed between the parties and failing agreement the average of an opinion of value obtained by the applicant and an opinion of value obtained by the respondent;
(b)The home shall be multi listed for sale by private treaty;
(c)In the event that the home has not been sold by or before a date 3 months from the date of being listed for sale then the applicant and the respondent shall make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the home upon the following terms:
(i)The auctioneer shall be as agreed between the parties and failing agreement as shall be nominated by the Chief Executive Officer of the Real Estate Institute of Queensland;
(ii)The auction shall take place within 3 months after the deadline date for sale by private treaty;
(iii)The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer;
(iv)The respondent shall be solely responsible for payment of all of the auction expenses payable before the home is auctioned.
That in the event that the home is not sold at auction, then the applicant and respondent shall within 7 days of the date of the auction do all such acts and things and execute all deeds, documents, instruments and writings necessary to procure a further auction upon such terms as may be agreed upon by the parties and failing agreement as shall be nominated by the Chief Executive Officer of the Real Estate Institute of Queensland.
That the respondent co-operate in every way with the Real Estate Agents and/or auctioneers in relation to the sale and auction of the home including making a key available, allowing inspection of the home at times requested by the Real Estate Agents and/or auctioneers and ensuring the home is in a neat and clean condition at the time of inspection by the prospective purchasers.
That upon completion of the sale of the home, the proceeds of sale be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the home;
(b)To discharge the mortgage and all other encumbrances affecting the home;
(c)To pay the amount owing to the respondent’s parents;
(d)To pay the sum of $4,630.00 to the applicant in payment of costs as provided for in Order 11 hereof;
(e)To pay the balance then remaining to the respondent.
That pending the transfer to the respondent or the sale of the home the respondent shall have the sole use and occupation of the home and during such right of occupation the respondent shall make the payments on the mortgage as and when they fall due and pay all insurance premiums and council rates and water charges.
That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)Each party shall be solely entitled to the exclusion of the other to the motor vehicle presently in their possession;
(b)Each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;
(c)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(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.
That in the event that either party refuses or neglects to comply with the provisions of these orders the Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the applicant and/or the respondent and do all acts and things necessary to give validity and operation to the said orders.
That all other applications be dismissed.
That the respondent pay the applicant’s costs of and incidental to this application fixed in the sum of $4,630.00.
IT IS NOTED that publication of this judgment under the pseudonym Robertson & Robertson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). .
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7301 of 2008
| MR ROBERTSON |
Applicant
And
| MS ROBERTSON |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This application comes back before me today following its initial listing for hearing for trial on 10 September 2010, and subsequently on 14 September 2010, and it was not reached on those dates. It was adjourned to today, and advice was given that it was probably likely to be undefended. Correspondence from the Court indicates that the respondent was informed of today’s date. It has not come back unreceived, and I am satisfied that the respondent has notice of today’s proceeding.
This application has its genesis in an agreement which was reached between the parties in November 2009, which is to be found in email correspondence annexed to the affidavit of Bernadette Marie Farnell filed 13 August 2010. In particular, document 2 in two emails: first a letter of offer contained in an email of 4 November 2009 sent at 2.39pm in which the husband offered to settle the property proceedings on terms detailed there, which offer was accepted by an email sent on the same day in reply at 3.16pm.
It seems that despite that agreement, the respondent failed to fulfil her obligation which requires the Court to exercise its discretion today. Now, although it is not stated in the letter, it was clearly an implied term of the agreement that any agreement would be subject to sanction by the Court in terms of the s.79 of the Family Law Act.
The agreement simply provided in broad terms that the husband was to transfer to the wife the former matrimonial home, including the debt, and the husband was to retain a life interest in a superannuation fund which was in its pension phase and which constitutes an annuity of approximately $24,000 per annum. Having regard to the facts and circumstances set out in the chronology and supported by the material, the settlement in my view clearly constitutes a just and equitable settlement between the parties.
Having regard to all the matters required under s.79(4) and s.75(2), it follows that, had the wife attended at the last hearing, orders would have been made on that occasion. As I have noted, she has not appeared today. I am satisfied she knows that the application is on today, has chosen not to appear for whatever reason, and it is appropriate to proceed in her absence, as the Court is authorised to do pursuant to rule 13.03A, and to make final orders as I propose to do in terms of the case outline in orders 1 to 10.
So far as costs are concerned, the applicant also seeks costs. There is, in my view, no apparent reason why costs order ought not flow. Costs are, of course, to be analysed by reference to s.117 of the Act which requires, as a starting base that each party bear their own costs; however, subject to s.117(2), if the Court thinks it is otherwise just, it may award costs. The management of a costs order are detailed on s.117(2A) which require the Court to consider the financial circumstances of the parties, and in this case, each have the ability to pay costs, whether it pays in receipt of legal aid or something or other in this application.
To commence, the parties to proceedings in this instance have been put to unnecessary additional costs by reason of the respondent’s failure to engage. Other considerations include:
a)whether the proceedings were necessitated by a failure of the party to comply with the previous orders of the Court. In part that is a fact here, because the respondent did not attend on the previous occasions, requiring the need for the application to be determined today;
b)whether the applicant has been successful, and in this instance, he has; and
c)whether there has been an offer and, again, in this instance, there has been.
It seems to me, having regard to all those matters, that it is appropriate that there be an award for costs. I will make an award in terms of paragraph 11 of the final orders of the minutes provided for case outline. Generally I will make orders in those terms.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 8 February 2011
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