SCAIFE & SCAIFE

[2018] FCCA 3844

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCAIFE & SCAIFE [2018] FCCA 3844

Catchwords:
FAMILY LAW – Property – interim.

Applicant: MS SCAIFE

Respondent: MR SCAIFE

File Number: BRC 12161 of 2018

Judgment of: Judge Spelleken

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Brisbane

Delivered on: 20 December 2018

REPRESENTATION

Solicitors for the Applicant: Mr Madsen of Madsen Law

Counsel for the Respondent: Mr Waterman

Solicitors for the Respondent: Springwood Lawyers

ORDERS UNTIL FURTHER ORDER

1. That within fourteen (14) days from the date the tenants vacate the Property A Property, (hereinafter referred to as ‘the listing date’), the Respondent, unless otherwise agreed by the Applicant and the Respondent, do all such acts and things and sign all such deeds, documents and instruments and consents as may be necessary to list for sale and sell the Property A Property and that the sale shall be effected as follows:-

   (a)The listing price of the Property A Property shall be as agreed between the parties and if there is no agreement within seven (7) days of the listing date, the listing price will be as advised by a valuer nominated by the CEO for the time being of the Real Estate Institute of South Australia or his/her nominee and such a valuer acting as an expert, not as an arbitrator and such valuation being binding upon both parties and both parties shall bear equally the cost of such valuation and the parties shall forthwith list the Property A property for sale with such listing price as determined by such valuer. 

   (b)The Property A Property shall be listed for sale by expression of interest by closing date with …Real Estate Agent.

   (c)The sale price shall be as agreed between the parties and failing agreement the parties shall jointly engage a Registered Valuer to value the Property A property with seven (7) days and should the valuation be equal to or less than the sale price, the Respondent shall execute such contract.

   (d)In the event that the Property A Property has not been sold on or before a date three (3) months from the listing date (hereinafter referred to as ‘date of failure to sell by private treaty’), and unless otherwise agreed between the parties, then the Respondent shall make all such arrangements and do all such acts and things necessary to procure a sale by public auction of the real property upon the following terms:-

   (i)The auctioneer shall be as agreed between the parties and if there is no agreement within seven (7) days from the date of failure to sell by private treaty, such auctioneer shall be as nominated by the Real Estate Agent appointed pursuant to order 2(b) hereof shall determine the auctioneer.

   (ii)The auction shall take place within two (2) months from the date of failure to sell by private treaty.

   (iii)The reserve price shall unless agreed upon by the parties be as decided by the auctioneer.

   (e)In the event that the property is not sold by auction or by private negotiation within fourteen (14) days after the said auction and unless otherwise agreed between the parties, the Respondent shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to procure a second auction within a further five (5) days of the expiry of the said fourteen (14) day period otherwise upon the same terms and conditions as apply to the first auction.

   (f)Upon completion of the sale of the Property A Property, the proceeds of the sale shall be applied as follows:-

   (i)To pay all costs, commissions and expenses of the sale and to pay any Council rates outstanding in respect of the Property A Property.

   (ii)To discharge the mortgage encumbering the Property A Property.

   (iii)     To pay out the following liabilities:

   A.   The Motor Vehicle1 loan secured against the motor vehicle registered in the Respondent’s name.

   B.   To pay out the motor vehicle loan secured against the Motor Vehicle 2 registered in the Respondent’s name.

   (iv)   The balance held in Springwood Lawyers Law Practice Trust Account

2. That from the date of these orders, the Applicant and Respondent shall not increase the value of the ANZ, Bendigo, Bank West and credit card held in the Respondent’s name. 

3. That the Husband shall pay the costs of the wife and the children’s flight from Brisbane to Adelaide on a mutually agreed date and time and with the wife to provide the husband with a list of proposed dated and times excluding Mondays and Fridays with the husband to respond within twenty-four (24) hours of the receipt of the wife’s email with the husband to be at liberty to pay for the flights or redeem frequent flyer points.

4. That the respondent cause to be paid from his Adelaide Bank account number …the following:

   (a)$12,412.64 to the applicant for her transportation costs to Adelaide;

   (b)$14,376.00 to the applicant for her maintenance;

   (c)$9,364.30 to Madsen Law Practice Trust Account to be used for mediation and Court Experts.

   (d)$3,550.00 to the respondent.

   (e)The Respondent shall use the balance of monies to pay the following expenses only:

   (i)To pay any and all outgoings associated with the Property A property including but not limited to:

   A.   Mortgage

   B.   Rates.

   C.   Insurance

   D.   Land tax.

   (ii)To pay any and all outgoings associated with the Property B property including but not limited to:

   A.   Mortgage

   B.   Rates.

   C.   Insurance

   (f)To pay the Motor Vehicle 1 Finance monthly repayments secured against the Motor Vehicle 1 and Motor Vehicle 2 registered in the Respondent’s name and the monthly insurance and registration in three month periods. 

   (g)To pay the minimum repayments on the ANZ, Bank West, and Bendigo Bank credit cards held in the Respondent’s name.

   (h)Liabilities associated with Business 1 such as staff entitlements, Australian taxation debt and outstanding rent.

   (i)The Telstra bill held in the Respondent’s name.

   (j)Any maintenance to be completed on the Property A, property up to a value of $5,000.00.

5. That the respondent shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to secure the release of the bond monies with respect to the Property C property and the bond monies shall be used as follows:

   (a)To pay the electricity account with respect to the Property C property.

   (b)To pay any defects with respect to the Property C property.

   (c)The balance to the Applicant. 

6. That for the purpose of order 6 hereof, the Respondent shall notify the Applicant within twenty-four (24) hours of when he receives the bond monies transferred into his account and upon payment of the electricity account, the Respondent shall provide evidence that such bill has been paid and transfer the balance of the bond monies into an account nominated by the Applicant. 

7. That within seven (7) days of the Respondent obtaining paid employment, the Respondent through his lawyers shall notify the Applicant through her lawyers that he has obtained employment and the terms of such employment including providing any signed contract if applicable. 

8. That each party shall provide to the other a copy of the following documents:

   (a)The documents detailed in Annexure A hereto (at least twenty-one (21) days prior to the Mediation)

   (b)Any documents requested by the Court Expert within seven (7) of receiving notice of such request

   (c)The documents upon which they intend to rely in the proceedings.

   (d)Documents in their possession (subject to a claim of privilege) adverse to their claim in these proceedings.

   (e)Any documents requested and particularised in writing by the other party (subject to any claim of privilege and relevance) that are within that party’s control or possession, within twenty-eight (28) days of receiving such written request.

9. That if the value of any asset remains in dispute between the parties such asset/s shall be  independently valued by a Court Expert pursuant to Rule 15.09 of the Federal Circuit Rules 2001 and unless the Court Expert is otherwise agreed, the Respondent shall provide to the Applicant within seven (7) days of the date of these orders:

   (a)the names of three (3) proposed Court Experts;

   (b)an estimate of each proposed Court Expert’s fees;

   (c)a list of the property to be valued.

10. That within seven (7) days of receiving the panel pursuant to Orders 11 hereof, the Applicant shall nominate one (1) of the proposed Court Experts and notify the Respondent’s solicitors of such nomination in writing.

11. That in the event that the Applicant fails to so advise the Respondent of her nomination as to the valuer to be appointed, the Respondent shall be at liberty to choose one (1) of the nominated valuers and shall notify the Applicant’s solicitors of such nomination within a further seven (7) days.

12. The Court Expert shall be provided with a joint letter of instructions (including instructions that may be given by the Court) but if the parties are unable to agree or for any reason joint instructions cannot be obtained then they shall each provide a letter of instructions to the Court Expert within seven (7) days of the appointment and provide a copy of such letter to the other party.  The parties shall advise the Court Expert the date before which the report is required.

13. That the parties shall comply with any reasonable request of the Court Expert to provide information and documents to complete the report.

14. That the Court Expert shall provide a report on the value of the property to the parties and the Court.

15. That the costs of the Court Expert are to be paid from the monies held in Madsen Law Practice Trust Account.

16. That the parties shall provide a copy of these orders to the Court Expert.

17. That the parties are directed to attend, participate in and act reasonably and genuinely in mediation in respect of issues regarding property adjustment and for that reason the court has excused their attendance at a conciliation conference pursuant to section 79(9) of the Family Law Act 1975.

18. That the Mediator shall be agreed between the parties and in the event of non-agreement, the Applicant shall within seven (7) days from the date of these orders nominate which mediator she will agree to jointly appoint from the following mediators:

    (a)Ms T

    (b)Ms S

    (c)Mr R.

19. That in the event that the Applicant fails to so advise the Respondent of her nomination as to the Mediator to be appointed, the Respondent shall be at liberty to choose one (1) of the nominated Mediators and shall notify the Applicant’s solicitors of such nomination within a further seven (7) days.

20. That the Mediator’s fees be paid from the monies held in Madsen Law Practice Trust Account.

21. That the parties each prepare a document detailing how monies received by them pursuant to order 4 has been expended.

22. That this matter be adjourned for mention to the Federal Circuit Court of Australia sitting at Brisbane at 9.30am on 20 May 2019.

23. That each party have liberty to apply on the giving of fourteen (14) days’ notice.

24. That the interim orders sought in the amended initiating application filed on 6 November 2018 and the interim orders sought in the response filed on 6 November 2018 be adjourned for mention on 20 May 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 12161 of 2018

MS SCAIFE

Applicant

And

MR SCAIFE

Respondent

REASONS FOR JUDGMENT

1. The substantive application before the Court was commenced by the wife on 18 October 2018 and by that application, she seeks final orders for the division of property with the Respondent, Mr Scaife. She seeks interims orders as follows:

   a)The sale of a property at Property A which I understand to be the former matrimonial home;

   b)The respondent’s previous employer be restrained from paying to the husband the whole or part of his employee termination payment but that it be paid to Madsen Law Practice;

   c)That from the moneys from Employer, $65,000 be paid to the applicant by way or partial property settlement;

   d)That pending further order, the Respondent pay:

   i)the mortgage on the Property A Property:

   ii)The mortgage over the unit at Property B, South Australia;

   iii)The rates for Property A;

   iv)The Motor Vehicle 1 chattel mortgage;

   v)Outgoings, including rates and insurances for the Property D Units;

   e)That the respondent pay to the applicant per week $5,000 by way of maintenance

2. In the Response, Mr Scaife asked the Court for interim orders:

   a)That he and the applicant negotiate with the current tenants of the Property A Property for its sale

   b)That the redundancy monies which at that time was $91,803.74 be paid as follows:

   i)To the applicant $25,000;

   ii)To the respondent’s solicitors $10,000

   iii)To the respondent $25,000

3. The balance redundancy moneys be used to pay:

   a)The mortgage rates and insurance on Property A;

   b)Mortgage rates, insurance, land tax, body corporate fees, management fees, any necessary repairs for the Property B Units;

   c)Motor Vehicle 1 monthly finance payments;

   d)The minimum repayments on the ANZ and Bendigo Bank credit cards;

   e)Liabilities associated with Business 1 such as staff entitlements, tax and outstanding rent;

4. Certain proposals were made with regard to the payment of mediator’s costs and expense of valuations.

5. The substantive and interim applications came before the Court on 7 November 2018 when interim orders were agreed in principle which included the sale of the Property A Property.

6. The Court was also told that the applicant and respondent were working towards finalising the property applications and the matter was adjourned to 4 December 2018.

7. By on or before 4 December 2018, any agreement reached both in relation to interim and final orders had fallen apart and as a result, I heard from the Solicitor for the Applicant and Counsel for the Respondent as to how to divide the balance of the redundancy payment which by that time had reduced from $91,803.74 to $57,067.00.

8. The applicant’s proposal for the balance of the Adelaide Bank account was as follows:

   a)Two months of repayments for the Motor Vehicle 1 $17,034.46;

   b)Two months of loan repayments on the mortgage of Property A in the sum of $8,384.00;

   c)A payment to the council for two months of rates and water charges $1,083.03;

   d)The payment of transportation costs for the applicant to Adelaide $12,412.64;

   e)The payment of maintenance to the applicant $14,376.00;

   f)A payment to Madsen Law to be used for the costs of a Court Expert and mediation.

9. The total of those sums proposed to be paid from the account by the Applicant are $47,353.85 which I acknowledge does not include the husband meeting the costs of the wife and children’s flights to Adelaide plus their luggage, which may be up to three suitcases each.

10. The respondent’s proposal is that the balance of the Adelaide bank account should be paid as follows:

    a)To the applicant $17,735;

    b)To the respondent’s lawyers $10,000;

    c)To the respondent $3,550;

    Making a total of $31,285.00.

11. The balance from the Adelaide Bank would then be, on his proposal, $25,782.00.

12. The respondent proposes that the balance be used as follows:

    a)Mortgage, rates, insurance and land tax for Property A

    b)Mortgage, rates and insurances for Property B

    c)Motor Vehicle 1 finance – monthly payments for the Motor Vehicle 1 and Motor Vehicle 2

    d)Minimum repayments on the ANZ and Bendigo Bank credit cards

    e)Liabilities associated with Business 1

    f)The Telstra bill held in the respondent’s name

    g)Any maintenance to be completed on the Property A Property.

13. After considering the submissions made on behalf of the applicant and respondent and their proposals for the use of the balance and Adelaide Bank funds, I have taken into account the following in no particular order:

    a)At the time of the hearing, the respondent was not working and, although looking for employment, had not secured employment but is hopeful of securing same;

    b)The applicant and children of their relationship are living in estranged circumstances in Brisbane and need and should be able to return to South Australia;

    c)The applicant and respondent agree that the Property A property should be sold;

    d)Notice has been given to the tenants of the Property A property to leave and they will do so within the next couple of months;

    e)Until the sale of the property and/or the respondent obtaining employment, the only source from which amounts can be paid to the applicant and respondent and ongoing expenses paid for Property A, Property B, motor vehicles, credit cards and other outgoings is the Adelaide Bank account;

    f)Whether the Court makes an order as proposed by the applicant or the respondent there will be a surplus of funds available to meet the Property A mortgage and other expenses, the Property B mortgage and other expenses, motor vehicle payments, credit card payments and other liabilities.

14. If an order was made as proposed by the applicant that she receive:

    a)$12,412.64 towards transportation costs for herself;

    b)$14,376.00 towards her maintenance;

    c)$9,364.30 paid to her solicitors

    Except for the airfares and baggage costs, which I acknowledge is not included in this sum but should be paid by the respondent, the balance available to pay mortgage payments, car payments etc. would be $30,280.00.

15. If the Court was to make the orders the respondent proposes after the payment:

    a)To the applicant of $17,735.26;

    b)His lawyers $10,000.00;

    c)Himself $3,550.00

    There would be $25,783.00 available to meet ongoing outgoings and liabilities.

16. Taking into account that the applicant and the children need to move to South Australia, that the applicant needs maintenance, that an amount needs to be quarantined for the payment of Court experts and mediation to hopefully resolve the matter, the respondent requires funds to meet his own personal expenses, and that the respondent has already paid something in the vicinity of $19,000.00 towards his own lawyers while the applicant’s lawyer remain unpaid and there needs to be a balance funds available to meet ongoing expenses prior to either the respondent obtaining employment or the sale of the Property A property, it is my view that the funds from the Adelaide Bank account should be distributed as follows:

    a)$12,412.64 towards the transportation costs for the applicant and the children to Adelaide;

    b)$14,376.00 towards maintenance for the applicant;

    c)$9,364.30 to meet mediation and other Court experts costs to Madsen Law;

    d)$3,550.00 to the respondent.

17. The orders should then provide for the balance to be paid as proposed by the respondent in Order 5(d) (i), (ii), (iii), (iv), (v), (vi), and (vii) of his proposed orders.

18. I will then adjourn the matter to 20 May 2019 while giving the applicant and respondent leave to re-list the matter on fourteen days’ notice if there is a need to make any other order.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Spelleken

Date: 20 December 2018