Segers & Segers (No 2)
[2024] FedCFamC1F 273
•23 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Segers & Segers (No 2) [2024] FedCFamC1F 273
File number(s): CAC 486 of 2023 Judgment of: GILL J Date of judgment: 23 April 2024 Catchwords: FAMILY LAW – PROPERTY – Consent terms – Where a litigation guardian has been appointed for the applicant wife – Just and equitable as demanded by s 79 of the Family Law Act 1975 – Orders made in accordance with proposed consent terms Legislation: Family Law Act 1975 (Cth) s 79 Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 23 April 2024 Place: Canberra Solicitor for the Applicant: Mr Hubert (Litigation Guardian), Capon & Hubert Solicitor for the Respondent: Ms Campbell, Campbell & Co ORDERS
CAC 486 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SEGERS
Applicant
AND: MR SEGERS
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
23 APRIL 2024
THE COURT ORDERS, BY CONSENT, THAT:
Sale of Suburb G & Suburb J
1.The parties do all things necessary to cause the property known as F Street, Suburb G (being Volume … and folio …) (“the Suburb G Property”) and the properties known as Units 1, 2 and 3, H Street, Suburb J (being folios … and volume …) (“the Suburb J Properties”) to be listed for sale subject to the following conditions:
1.1The Suburb G Property is to be listed for sale forthwith;
1.2The Suburb J Properties are to be listed for sale no later than 7 February 2025;
1.3Unless otherwise agreed in writing, the sales shall be by way of auction, such auctions to take place within 42 days of the date each property is listed for sale;
1.4If agreed in writing, the parties shall accept any offer made prior to the auction;
1.5Within 7 days of the date of these Orders, the Wife shall nominate three proposed listing agents (excluding K Real Estate and L Real Estate) for each of the Suburb G Property and the Suburb J Properties and the Husband shall select one of each within 14 days of receiving the Wife’s nominations;
1.6Ms M of N Lawyers shall be the conveyancer for the sale of the each of Suburb G and the Suburb J Properties;
1.7The conveyancer and the agent are to communicate with both parties and act on joint instructions only;
1.8The reserve price for the auction shall be as agreed or if there is no agreement, as recommended by the selling agent in writing, but not less than the valuation amounts being:
1.8.1In respect of the Suburb G Property: $1,300,000 and
1.8.2In respect of the Suburb J Properties: $800,000 for Unit 1, $850,000 for Unit 2 and $830,000 for Unit 3.
1.9In the event that a property passes in at auction, the parties shall first negotiate with the bidders and if needed, relist the property for sale at an agreed price or if there is no agreement, as recommended by the selling agent in writing.
Application of Suburb G Proceeds
2.The proceeds of the sale of the Suburb G Property be applied in the following manner and priority:
2.1To pay the real estate agent’s commission and advertising costs including styling if advised by the agent;
2.2To pay any pre-sale maintenance costs required for sale if such costs are pre‑agreed in writing;
2.3To pay the conveyancer’s fees;
2.4To pay such sum as may be required to discharge mortgage registration number …35, being account #...00, in favour of Westpac Banking Corporation secured against the Suburb G Property;
2.5To set aside the sum to be calculated by an agreed accountant as the estimated tax liability arising from the sale of the Suburb G Property, to be held in the joint P Bank account #...54, ‘two to sign’ account (“the CGT Account”), to be held for the purposes of paying tax liabilities arising from the sale of the Suburb G Property and used to offset the mortgage secured by the Suburb J properties;
2.6To pay the accountant’s fees for calculating tax liabilities pursuant to Order 2.5;
2.7The balance then remaining to be divided as to:
2.7.145% to the Husband; and
2.7.255% to the Wife from which she is to pay all outstanding fees and disbursements owing to Ken Hubert of Capon Hubert Lawyer and Mediators.
Application of Suburb J Proceeds
3.The proceeds of the sale of the Suburb J Properties be applied in the following manner and priority:
3.1To pay the real estate agent’s commission and advertising costs including styling if advised by the agent;
3.2To pay any pre-sale maintenance costs required for sale if such costs are pre‑agreed in writing;
3.3To pay the conveyancer’s fees;
3.4To pay such sum as may be required to discharge mortgage registration number …29, being account #...00, in favour of Westpac Banking Corporation secured against the Suburb J Properties;
3.5To set aside the sum to be calculated by an agreed accountant as the estimated tax liability arising from the sale of the Suburb J Properties to be held in the CGT Account, to be held for the purposes of paying tax liabilities arising from the sale of the Suburb J Properties;
3.6To pay the accountant’s fees for calculating tax liabilities pursuant to Order 3.5; and
3.7The balance then remaining to be divided 55% to the Wife and 45% to the Husband.
Tax Payable On Sales Including CGT And GST If Applicable
4.In relation to capital gains tax and any additional taxes including GST if applicable, payable (“tax liabilities”) arising from the Suburb G and Suburb J Properties:
4.1The parties are to finalise and lodge their personal tax return for the financial years in which the Suburb G Property and/or any or all of the Suburb J Properties sells, by 30 September the same calendar year;
4.2The parties by these orders authorise the payment of the tax liabilities payable by either of them to be paid from ‘CGT Account’;
4.3If, after payment of tax liabilities referable to the sale of the Suburb J Properties and the Suburb G Property, there is an amount remaining in the CGT Account, the parties shall cause that sum to be paid 55% to the Wife and 45% to the Husband; and
4.4If there is a shortfall in the ‘CGT Account’ compared to the amount of tax liabilities payable by the parties pursuant to this Order, such shortfall will be met 55% by the Wife and 45% by the Husband.
Sale of Suburb R
5.On or before 1 February 2025, the parties shall do all things and sign all documents to list the property located at Q Street, Suburb R (volume … folio …) (“the Suburb R Property”) for sale subject to the following conditions:
5.1Unless otherwise agreed in writing, the sales shall be by way of auction, such auctions to take place within 42 days of the property being placed on the market;
5.2If agreed in writing, the parties shall accept any offer made prior to the auction;
5.3Within 7 days of the date of these Orders, the Wife shall nominate three proposed listing agents (excluding K Real Estate and L Real Estate) and the Husband shall select one of each within 14 days of receiving the Wife’s nominations;
5.4Ms M of N Lawyers shall be the conveyancer for the sale of the Suburb R Property;
5.5The conveyancer and the agent are to communicate with both parties and act on joint instructions only;
5.6The reserve price for the auction shall be as agreed or if there is no agreement, as recommended by the selling agent in writing, but not less than the valuation amount of $1,580,000.
5.7In the event that a property passes in at auction, the parties shall first negotiate with the bidders and if needed, relist the property for sale at an agreed price or if there is no agreement, as recommended by the selling agent in writing.
5.8Upon sale of the Suburb R property the proceeds shall be applied contemporaneously as follows:
5.8.1To pay the real estate agent’s commission and advertising costs including styling if advised by the agent;
5.8.2To pay any pre-sale maintenance costs required for sale if such costs are pre-agreed in writing;
5.8.3To pay the conveyancer’s fees;
5.8.4Pay out the mortgage loan account being account #...00 to Westpac Bank,
5.8.5Pay 45% of the nett proceeds to the husband,
5.8.6Pay the remaining funds as to:
5.8.6.1Pay out the vehicle loan account #...01,
5.8.6.2Pay all fees and disbursements owing to Ken Hubert of Capon Hubert Lawyers and Mediators,
5.8.6.3Pay the remaining funds to the wife.
6.In the event Suburb R is not sold for any reason as agreed in writing by the parties
6.1On or before 30 April 2025 (‘the due date’) the wife shall pay to the husband the sum of $450,000 (‘the sum’); The Husband shall contemporaneously transfer to the Wife his right, title and interest in the property at Q Street, Suburb R (volume … folio …) (“the Suburb R Property”);
6.2The Wife shall pay out mortgages on the property such as to remove the husband’s name and repay to P Bank the full amount then outstanding on loan numbers ending …00 and …01 (“the Suburb R Loans”) secured by mortgage registration number …51 in favour of Westpac Banking Corporation against the Suburb R Property;
6.3The Husband shall sign the discharge of the mortgage registration number …51 registered against the Suburb R Property;
6.4Should the sum not be paid by the due date, Order 5 shall be implemented forthwith and interest shall accrue as calculated on a daily basis at the rate prescribed by the Family Law Rules 2021 as applicable from time to time from the date payment of the sum was due until the date payment is made;
6.5For the purpose of the payment of the sum, the wife shall pay as much of the amount owing initially from her share from the sale of Suburb J should it be sold prior to Suburb R.
7.Pending compliance with Orders 1 to 5 above:
7.1The parties are restrained from selling, assigning, dealing with or further encumbering any of the above-mentioned real estate, other than to the extent necessary to give effect to the Orders;
7.2The parties shall forthwith do all things necessary to ensure the Suburb G Property and the Suburb J Properties are tenanted;
7.3The parties shall direct all rental income for the Suburb G Property and the Suburb J Properties to be paid into the joint P Bank account ending …95 (‘the Joint Working Account”);
7.4The parties shall direct all outgoings for the Suburb G Property and the Suburb J Properties to be paid from the Joint Working Account (including home loan repayments for the P Bank home loan accounts ending …00 and …00, rates, water, land tax, insurances, property management fees, costs charged by any Body Corporate to set up the management of the Suburb J properties and any maintenance expenses to be agreed between the parties in writing);
7.5Both parties are restrained from using the Joint Working Account for any other payments, transfers or withdrawals;
7.6If there is a shortfall in the Joint Working Account to meet the ongoing expenses referred to in Order 7.4 above for the Suburb G and Suburb J Properties at any time, the wife shall pay 25% of the shortfall prior to that expense being due and the husband shall pay 75% of any shortfall prior to being such shortfall being due;
7.7The parties shall ensure that the Suburb G and Suburb J properties are kept insured for property, landlord and public liability;
7.8Should one party fail to meet his or her share of any shortfall, such funds will be repaid to the other party upon settlement of the sale of the Suburb J properties;
8.The Wife has the sole right to occupy the Suburb R Property until it is sold and she shall make all required periodic payments for the Suburb R Loans and other outgoings for the Suburb R Property, including maintaining building and public liability insurances, as and when they fall due and indemnify and keep indemnified the husband in relation to all liabilities associated with the Suburb R property.
9.Within 7 days of the date of these Orders, the parties shall cause the joint P Bank account ending …72 to be closed with the balance to be retained by the Wife.
10.Within 7 days of compliance with Orders 1 to 6, the parties shall cause the joint P Bank account ending …95 to be closed with the balance divided 50% to the Wife and 50% to the Husband.
Other
11.The Wife be declared as against the Husband, the sole legal and beneficial owner of:
11.1Monies standing to her credit in any accounts in her sole name;
11.2Motor Vehicle 1 registered to her;
11.3Her jewellery;
11.4The interim payment of $110,000 received by her pursuant to Orders of 14 February 2024; and
11.5Her superannuation with Superannuation Fund 1 and Superannuation Fund 2.
12.The Husband be declared as against the Wife, the sole legal and beneficial owner of:
12.1Monies standing to his credit in any account in his sole name;
12.2Motor Vehicle 2 registered to him;
12.3Motor Vehicle 3 registered to him;
12.4The recreational vehicle registered to him;
12.5His recreational equipment, roof boot and car accessories;
12.6His jewellery;
12.7The interim payment of $110,000 received by him pursuant to Orders of 14 February 2024 and
12.8His superannuation pension with Superannuation Fund 2 and also his Superannuation Fund 3 entitlements.
13.That the Husband be solely liable for and indemnify the Wife against:
13.1The asserted loan owing to his sister, Ms S; and
13.2His credit card.
14.Within 7 days of the date of these Orders the wife shall provide a list of personal items she wishes returned and the husband shall endeavour to locate them and provide them to the law firm Capon & Hubert Lawyers and Mediators (or such other third party nominated by the wife in writing).
15.Within 7 days of the date of these Orders the husband shall provide a list of personal items he wishes returned and the wife shall endeavour to locate them and provide them to the law firm Campbell & Co. Lawyers.
16.That except as otherwise provided in these Orders:
16.1The Husband and the Wife be entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively; and
16.2The Husband and the Wife be liable for and indemnify the other against any liability in their respective name or encumbering any item of property to which that party is entitled pursuant to these Orders.
17.That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect within 14 days of being requested to do, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, a Registrar of this Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.
Costs
18.That the wife pay to the husband the sum of $15,000 upon the sale of the Suburb G property by way of costs thrown away.
19.That there be no other orders as to costs.
AND IT IS NOTED:
A.That pursuant to section 81 of the Family Law Act 1975 the parties intend these orders to be in full and final settlement of any financial claims each may have against the other for property settlement or spousal maintenance and each party undertakes to make no further claim against the other by way of property settlement or spousal maintenance.
B.That the provisions of section 77A of the Family Law Act 1975 are not applicable in 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
This matter proceeded to final hearing at the start of April 2024. The circumstances of that hearing are set out elsewhere but suffice to say resulted in a last moment adjournment of the proceedings due to incapacity on the part of the wife to conduct the litigation and the prompt appointment of Mr Hubert as litigation guardian for the wife.
Mr Hubert, as litigation guardian, and the husband have come to a common position in terms of the settlement of the property dispute. I mark as exhibit C1 in the proceedings an annotated copy of those terms of settlement. I mark as exhibit C2 the affidavit of Kenneth Edwin Hubert setting out the circumstances of his determination that those terms should be consented to.
I have heard each of the parties today address the court in respect of whether or not the settlement is just and equitable. I am satisfied it is within the scope of just and equitable as demanded by s 79 of the Family Law Act 1975.
Having examined the trial material, including the pool of property contended for by each of the parties, considering that this is a marriage of long duration, considering that the parties each contributed both to the property and to the welfare of the family in financial and non-financial manners and in varying ways across the scope of their relationship, and having considered the particular limitations that each of the parties now faces going into the future, which include medical issues for the husband in terms of his capacity to undertake further work, or to retain income over and above the defined benefit superannuation that he is in receipt of, and noting that although the wife has earned significant sums in the past, she is at present suffering under a degree of disability such as to mean that she was unable to ultimately conduct the litigation, the terms of settlement form a just and equitable disposition of the parties’ property.
That arrangement for settlement in general terms approximates a 55/45 split in favour of the wife in respect of non-superannuation property, noting that the husband is in receipt now of a defined benefit pension. On the overall circumstances of the case as disclosed by material filed by the parties, as disclosed by the affidavit of Mr Hubert and as identified by Mr Hubert and Ms Campbell in their submissions I am satisfied the terms are just and equitable and I make orders in accordance with exhibit C1.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 23 April 2024
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