Simpson and Simpson

FAMILY COURT OF AUSTRALIA

SIMPSON & SIMPSON

[2017] FamCA 631

FAMILY LAW – PROPERTY – final orders – undefended hearing – where the wife has not participated in the proceedings – orders made for the sale of the former matrimonial home – balance of the proceeds of sale to be divided equally between the husband and wife – order made for the equalisation of superannuation interests.

Family Law Act 1975 (Cth) ss 79, 75(2)
Family Law Rules 2004 (Cth) r 11.02(2)(c)

Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Simpson

RESPONDENT:

Ms Simpson

FILE NUMBER:

MLC

8379

2016

DATE DELIVERED:

22 August 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

1 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marchetti

SOLICITOR FOR THE APPLICANT:

Mr J Family Law

THE RESPONDENT:

No Appearance

Orders

1.That on or before 22 October 2017, the wife provide vacant possession to the real property situate at and known as B Street, Suburb C, in the ACT (“the real property”).
2.That the real property be forthwith sold altogether out of court (called “the sale”) and the husband and wife forthwith do all acts and things and sign all necessary documents to effect the sale of the real property and by way of consequential arrangements that shall be made for the purpose of effecting a sale:
(a)The husband shall have the conduct of the sale; and
(b)The selling agent shall be agreed by the parties in writing within 14 days and in the absence of agreement shall be appointed by the President of the Real Estate Institute of the ACT or his nominee;
(c)The method of sale and terms and conditions of sale shall be as agreed between the parties in writing within 14 days of the appointment of the selling agent and if no agreement shall be determined by the selling agent;
(d)The reserve price shall be as agreed between the parties in writing within 14 days of the appointment of the selling agent and if no agreement shall be fixed by a valuer appointed by the President of the Real Estate Institute of the ACT or his nominee.

3.That there be liberty to apply with respect to the terms and conditions of the sale.
4.That upon completion of the sale of the real property, the proceeds be applied as follows:-
(a)Firstly to pay all costs, commissions and expense of the sale;
(b)Secondly to discharge the mortgage affecting the real property;
(c)Thirdly the balance then remaining be divided as follows:-
(i)50 per cent to the husband; and
(ii)The balance then remaining be applied as follows:-
A.First to discharge the liability on the wife’s German motor vehicle (registration …); and
B.Second, the balance to the wife.

5.That pending the completion of the sale:-
(a)    Subject to Order (1) above, the husband have the sole right to occupy the real property and that during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as and when they fall due;
(b)    The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)    Neither party encumber the real property without the consent in writing of the other party.
6.That pursuant to s 90MT(4) of the Family Law Act 1975 (Cth), a base amount of $261,300.00 be allocated to the wife out of the husband’s interest in the D Super, member number …57.
7.That in accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the interest of the husband in the D Super, member number …57 (“D Super”) the wife Ms Simpson shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $261,300.00 and that there be a corresponding reduction to the entitlement the husband, Mr Simpson, would have had but for these orders.
8.That this order has effect from the operative time.
9.That the operative time for this order is four (4) business days from the date a sealed copy of these orders is served on the Trustee of D Super.
10.That having been accorded procedural fairness in relation to the making of this order, this order binds the Trustee of D Super.
11.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the former matrimonial home being deemed to be in the possession of the wife);
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the husband;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the named owner;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

12.That in the event the wife fails or refuses to execute any document required to give effect to these orders, a Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of the wife and to do all acts and things to give validity and operation to these orders.
13.That it shall be sufficient authority for a Registrar to act pursuant to paragraph (12) hereof to have before him or her an affidavit sworn by the solicitor for the husband deposing:-
(a)That a specified document was sent to the wife for execution on a specified date; and
(b)That the document has not been returned, signed by the wife (and where necessary witnessed) within ten days of its posting.

14.That the wife pay the following costs of the husband:-
(a)Costs of 21 November 2016, fixed at $800; and
(b)Costs of 8 February 2017, fixed at $1650.

and such sums be deducted from the sum otherwise due to be paid to the wife pursuant to paragraph 4(c)(ii) hereof.
15.That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simpson & Simpson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8379 of 2016

Mr Simpson

Applicant

And

Ms Simpson

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Mr Simpson who is the husband in the proceedings, has filed an Amended Initiating Application on 2 June 2017 in which he seeks final property orders. That application was listed before me in a Judicial Duty List.
Pursuant to orders made by Registrar Field on 5 May 2017 (“the May 2017 Orders”) the husband seeks to press his application for final property orders on an undefended basis due to the respondent wife, Ms Simpson’s, failure to comply with orders of this Court or participate in the proceedings.
Order 3 of the May 2017 Orders required the wife to appear or be represented at the hearing before me. The wife was called by my Court Officer at the commencement of the hearing and failed to answer the call.
Order 4 of the May 2017 orders required the wife to file by 5 July 2017 a response and financial statement. That order extended the wife’s time for filing those documents, she having been originally ordered to file such documents by 23 December 2016 pursuant to orders made by Registrar Mestrovic on 21 November 2016. The wife has filed no documents in compliance with those orders.
The May 2017 orders required the husband to file and serve his Amended Initiating Application by 5 June 2017. Further, those orders required the husband to serve upon the wife a sealed copy of the May 2017 orders within 10 days and to file an affidavit of service confirming compliance with the orders regarding service.
Two affidavits of service sworn by Mr E, both filed 14 June 2017, confirm that the wife was personally served on 3 June 2017 with the husband’s Amended Initiating Application, affidavit sworn 2 June 2017 and the May 2017 Orders, together with covering letters dated 2 June 2017 and 25 May 2017 from the husband’s lawyer. It is clear from the affidavit of service that service of the May 2017 orders upon the wife was out of time, that document having been ordered to be served on the wife by 15 May 2017. Nonetheless, I am satisfied having regard to the affidavits of service that personal service of that document as well as the other documents relied upon by the husband and required to be served has been effected.
In light of that history and the wife’s failure to appear before me, I granted leave for the matter to proceed on an undefended basis. At the conclusion of the hearing I reserved my judgment. These are my Reasons for Judgment with respect to the husband’s application for final property orders.

The parties

The husband, Mr Simpson is the applicant in the proceedings. He is aged 56 years. He resides in Suburb F, Victoria.
The wife, Ms Simpson is the respondent in the proceedings. She is aged 49 years. She resides in the former matrimonial home in Canberra.
The parties married in 1994 and separation occurred in September 2013.
There are two children of the marriage, Mr G who is aged 20 years and H who is aged 15 years. Both children live with the husband.

Material relied upon

The husband relied upon the following material:-
·Amended Initiating Application filed 2 June 2017;
·Affidavit of the husband filed 2 June 2017;
·Financial statement of the husband filed 2 September 2016;
·Affidavits of service of Mr E (two) both filed 14 June 2017;
·Affidavit of Mr J filed 27 July 2017;
·Minute of Orders Sought dated 1 August 2017 (Exhibit A1);
·Letter from D Super to the husband’s lawyer dated 31 July 2017.
The husband seeks orders in the terms of his Amended Initiating Application filed 2 June 2017 save for some minor amendments to the superannuation splitting orders as sought by the trustee of the husband’s superannuation fund, and set out in the letter from that trustee to the husband’s lawyer dated 31 July 2017. That letter requests amendments to the name of the fund to ensure that the correct name is set out in the orders. Further, the trustee of the fund seeks the insertion of a further order clarifying the base amount to be allocated to the wife out of the husband’s interest. Save for those changes to the form of the orders, the effect of the orders as contained in the husband’s Amended Initiating Application is unchanged.

The proceedings

The husband originally commenced proceedings in this Court by Initiating Application filed 2 September 2016. That application together with the husband’s financial statement, were served upon the wife by hand on 10 October 2016. At the time the documents were served upon the wife she signed an acknowledgment of service. These matters were confirmed by the process server, Ms K, in her affidavit of service filed 27 October 2016.
The matter was listed for a Case Assessment Conference before Registrar Mestrovic on 21 November 2016. The wife did not appear at that conference. That day, orders were made adjourning the husband’s application to the Judicial Duty List on 8 February 2017. Further, the wife was ordered to file and serve a response and statement of financial circumstances by 23 December 2016. The wife was ordered to pay the husband’s costs thrown away fixed in the sum of $880. A sealed copy of those orders was to be served upon the wife within seven days. The affidavit of the process server, Ms K filed 12 January 2017 confirms that service of the orders was affected by hand on 9 December 2016.
On 8 February 2017 the application came before Bennett J. That day her Honour ordered that the proceedings be adjourned to the Judicial Duty List on 5 April 2017 for an undefended hearing. Further, the husband was ordered to file and serve any amended application and affidavit in support by 15 March 2017. The wife was ordered to pay the husband’s costs thrown away fixed in the sum of $1,650. A sealed copy of her Honour’s orders was to be served on the wife within seven days. Service of that order was affected by hand by Ms K on 5 March 2017, such service being confirmed in her affidavit of service filed 17 March 2017.
Due to the husband’s inability to file material in accordance with the timetable provided in the orders of 8 February 2017, on 5 April 2017 the proceedings were adjourned to the Directions List on 5 May 2017.
As noted earlier, orders were made by Registrar Field on 5 May 2017 for the applicant to file and serve an Amended Initiating Application, adjourning the hearing of the application for final orders to the Judicial Duty List on 1 August 2017, such application to proceed on an undefended basis in the event that the wife failed to comply with the May 2017 orders. The wife was ordered to appear at the adjourned hearing or be represented and the time for filing of her documents was extended to 5 July 2017.
The wife has failed to appear at the hearing on 1 August 2017 or file any documents in accordance with the May 2017 Orders.
Rule 11.02(2)(c) of the Family Law Rules 2004 (Cth) provides that if a party does not comply with the rules, the regulations or a procedural order, the Court may, amongst other things, determine the case as if it were undefended. An undefended hearing means that the respondent, the wife in this case, does not participate at all; from the Court’s perspective, there is no live issue between the applicant and the respondent.
Having regard to the affidavits of service filed, I am satisfied that the wife has had notice of the hearing listed before me and of the fact that the husband sought to proceed with his application for final property orders on an undefended basis. I am also satisfied that the wife has had notice of the material relied upon by the husband in support of his application. Given the wife’s failure to appear or file any documents in the proceedings, notwithstanding the adjournment of the proceedings and extensions of time afforded to her to enable such compliance with previous orders, I am satisfied that the wife has been accorded procedural fairness and that the husband should have leave to proceed with his application for final property orders on an undefended basis.

The hearing

The husband relied upon the material referred to above and the submissions made by his Counsel. In addition, the husband gave brief oral evidence in relation to his communication with the wife; he confirmed that he last spoke with the wife approximately one week prior to the hearing but that there was no discussion with her regarding these proceedings.

Background

The parties met in the Eastern Europe in late-1992 and shortly thereafter commenced a relationship.
The parties were married in Eastern Europe in 1994. Following their marriage, the husband returned to Australia to work. The wife remained in Eastern Europe awaiting finalisation of her visa application permitting her to live in Australia. That application was approved in September 1995 and the parties commenced cohabitation in Sydney in October 1995.
At the time of the parties’ marriage, the husband was engaged in full-time employment working in Western Australia.
At the time of the marriage the husband owned a three-bedroom unit in Suburb L, Western Australia, having purchased that property “off the plan” in 1993. The wife had no assets of significance at the time of the parties’ marriage.
Following the parties’ marriage but prior to the wife’s arrival in Australia the husband purchased a block of land at M Town for $75,000. That purchase was financed by payment by him of a 10 per cent deposit and otherwise the balance of the purchase price was provided by the husband’s father and a mortgage from the ANZ Bank.
Following the birth of the parties’ first child the husband sold the property at Suburb L. In his affidavit filed 2 June 2017 he deposes that the proceeds of sale from that property were approximately $144,000 and those sale proceeds were applied for the benefit of the family.
In 1997 the husband was offered and commenced employment in South America. He was joined in South America by the wife and their child, Mr G approximately three months after commencing that employment. During his period of employment in South America the mortgage secured over the land at M Town was discharged.
The husband’s employment in South America ceased in about 2000 when he was made redundant and received a redundancy payment of approximately $130,000.
In April 2001 the parties purchased the former matrimonial home at B Street, Suburb C (“B Street”) in the Australian Capital Territory. The purchase of that property was funded from the parties’ savings together with a loan from the National Australia Bank. That property was renovated in 2002, and the husband deposes that the total cost of those renovations was approximately $80,000. Those renovations were funded from the proceeds of sale of the block of land at M Town which was sold in 2002 for approximately $89,000.
In 2011 the wife purchased property in Eastern Europe. In order to fund that purchase the parties drew down $16,000 from the mortgage secured over B Street. The husband deposes that between 2011 and 2013 the wife travelled regularly to Eastern Europe to purchase the property and to organise and supervise its renovation.
Since separation the children have lived with the husband in Melbourne. The husband has been solely responsible for H’s education expenses as well as payments on the mortgage secured over the title to B Street and the loan repayments on the German motor vehicle driven by the wife.

Legal principles

Property applications are determined in accordance with the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
Section 79(1) of the Act provides that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.
Section 79(2) of the Act provides that the Court should not make an order for property settlement unless it is satisfied that it is just and equitable to do so. In determining an application pursuant to s 79 of the Act, the Court is required to:-
·Identify the parties’ respective legal and equitable interests in the property;
·Determine whether in accordance with s 79(2) it is just and equitable to make a property settlement order having regard to the parties’ existing interests;
·Determine all relevant contributions of each of the parties;
·Identify and weigh against each other the matters set out in ss 79(4)(a) to (c) inclusive;
·Consider the matters contained in s 79(4)(d) to (g) inclusive and make a determination as to what if any alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 75(2).

The Act does not prescribe the order in which the matters in s 79(4) are to be considered. The circumstances of individual marriages as to their nature and form differ. How parties have organised and lived within the marriage are factors which may be relevant in the exercise of this discretion pursuant to s 79(2) of the Act.
The operation of s 79 of the Act was considered by the High Court in the decision of Stanford v Stanford (2012) 247 CLR 108. When considering s 79(2) and s 79(4) the majority held that:-
35.…The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the Court that, in all the circumstances, it is just and equitable to make the order.
36.The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations …while the power given by s 79 is not “to be exercised in accordance with fixed rules”…, nevertheless, three fundamental propositions must not be obscured.
The High Court held that the first of those propositions is for the Court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second is that although s 79 of the Act confers a broad power on the Court that power must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[1]
[1] Stanford v Stanford (2012) 247 CLR 108, 121 [38] citing R v Watson; Ex parte Armstrong (1976) 136 CLR 248.
The third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one party or the other has the right to have their property interests divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4) of the Act. There must be a separate consideration of s 79(2) of the Act as to do otherwise would be to conflate the statutory requirements and ignore the principles laid down by the Act.

The parties existing legal and equitable interests in property

The wife’s failure to comply with orders of the Court and to participate in the proceedings results in uncertainty as to the extent of the parties’ legal and equitable interests.
At paragraphs 36 and 37 of his affidavit, the husband identifies the parties’ legal and equitable interests as follows:-
·B Street  $850,000
less mortgage  $616,000  $234,000
·Eastern European property  Unknown
·German car (driven by wife)          $45,000
less chattel loan  $44,200  $800
·Japanese Car (driven by husband)    $17,500
less chattel loan  $17,500  Nil
·Japanese Car (driven by Mr G)       $14,000
Less chattel loan  $14,000  Nil
·Husband’s superannuation  $522,600
TOTAL  $757,400
In addition to the interests identified in his affidavit, in his financial statement filed 2 September 2016 the husband discloses savings accounts with nominal balances and household contents which he estimates have a value of $8,900. He also identifies an ANZ Mastercard liability of $15,000. Further, at part O of his financial statement the husband deposes to personal loan liabilities totalling approximately $63,000 as well as liabilities to friends and family totalling approximately $22,000. The husband does not seek to have those liabilities taken into account when adjusting the parties’ interests.
On the face of the husband’s evidence, which is the only evidence before the Court, the two principal assets of the parties are the property at B Street, currently occupied by the wife, which has equity of approximately $234,000 and the husband’s accumulated superannuation entitlements valued at approximately $522,000.

The husband’s application

The husband seeks final property orders, the effect of which will be to divide the parties’ interests on an equal basis, save that the wife will retain her interest in the property in Eastern Europe. He seeks a sale of the property at B Street with the net proceeds of sale to be divided on the basis that he receive 50 per cent of the net proceeds and the balance be applied towards the discharge of the loan liability encumbering the German motor vehicle to be retained by the wife and she be paid the balance then remaining.
With respect to his superannuation interests the husband seeks a splitting order, the effect of which will be to divide equally the husband’s interests in his superannuation fund. The husband has served the superannuation fund with a copy of the proposed orders contained in his Amended Initiating Application. In the letter in response from the trustee of that fund dated 31 July 2017 the trustee acknowledged that it had been accorded procedural fairness and that it was prepared to be bound by the terms of the proposed orders provided that some amendments as to the form of the orders was made. In the Minute of order provided to the Court (Exhibit A1) those amendments as sought by the trustee of the fund have been made to the proposed orders.

Discussion

The first question for determination is whether it is appropriate for the Court to exercise jurisdiction in relation to property. The parties have been married for a period of approximately 22 years. There are two children of the marriage. The parties have acquired jointly-owned property during the marriage and have accumulated superannuation interests in the husband’s superannuation funds. I am satisfied having regard to that history that it would be just and equitable to make orders pursuant to s 79 of the Act. Having determined that their relationship is over, justice and equity requires that the parties have the opportunity to separate their financial interests. Orders of the Court are necessary for this to occur.
As noted earlier, the Court is not in a position to confidently assess the parties’ legal and equitable interests or their contributions, given the failure of the wife to participate in the proceedings. The husband’s unchallenged evidence is that the parties have interests valued at approximately $757,000 together with an interest in the property in Eastern Europe. Whilst there is no valuation evidence of the B Street property, the husband proposes that there be a percentage adjustment of the proceeds of sale of the property. That property is heavily encumbered and is the major non-superannuation asset of the parties. The husband estimates the parties’ equity in that property to be approximately $234,000. The wife has had the opportunity to, but does not challenge that evidence. In circumstances where the property is to be sold and the proceeds divided on a percentage basis, I am satisfied that it is appropriate that the matter be finalised notwithstanding the fact that there is no expert valuation evidence before the Court.
Again the only evidence before the Court as to the parties’ contributions is that of the husband. Doing the best I can, having regard to that evidence, I am satisfied that both parties made significant contributions during the course of their relationship. At the commencement of the marriage the husband had an interest in the property at Suburb L. Although there is no evidence before me as to his equity in that property at that time, it is nonetheless a contribution made on his behalf.
Based on the husband’s evidence, it would appear that the parties adopted what could be described as traditional roles within the marriage. The husband has provided detailed evidence as to his employment throughout the relationship; he was the principal breadwinner during the marriage and since separation.
The wife was primarily responsible for the day to-day care of the parties’ children until the time of the separation. Further, the wife supported the husband in his employment, including relocating to live in South America with the husband and the parties’ child for a period of approximately three years.
Whilst the husband contributed the Suburb L property at the commencement of the marriage, as discussed previously there is no evidence before me as to his equity in the property at that time. In the context of a long marriage, I am not persuaded that there should be any adjustment to the husband for that contribution and I am satisfied that the parties each contributed to the best of their abilities during the marriage.
The husband has also contributed in the post-separation period, having been primarily responsible for the care of the children and payment of their expenses. The husband has also continued to meet payments on the mortgage secured over the property at B Street and the motor vehicles driven by the wife and the parties’ adult child. Having regard to that evidence, I am satisfied that the husband’s contributions in the period post-separation are greater than those made by the wife.

Section 75(2) factors

The wife is aged 49 years. There is no evidence as to her current employment or income.
The husband is aged 56 years. He is employed and his financial statement discloses that he has an income of approximately $252,000 per annum.
The husband has the care of the parties’ child under the age of 18. In addition the parties’ adult child continues to live with him. The wife pays no child support with respect to the child H.
Since separation, the husband has continued to meet all expenses with respect to the parties’ children as well as expenses associated with the property at B Street, including mortgage payments. In addition, the husband has continued to meet all expenses associated with the German motor vehicle driven by the wife.
The pool of assets available for division is modest.
The husband proposes that there be an equal division of the parties’ interests, including the accumulated superannuation interests save that the husband proposes that the wife retain the property in Eastern Europe, the value of which is unknown. I am satisfied having regard to the evidence before the Court that the orders sought by the husband are just and equitable.
Based on the evidence before the Court, it would appear that there is a disparity in the parties’ income earning capacity and that the husband has a greater income than that enjoyed by the wife. This is evidenced by the husband’s contribution to the wife’s housing and motor vehicle costs in the post-separation period.
The husband has the ongoing responsibility for the support of the parties’ child who is aged 15 years.
I am satisfied having regard to the evidence before the Court that an equal division of the parties’ interests (excluding the property in Eastern Europe to be retained by the wife) as sought by the husband is appropriate in the circumstances of this case. I am satisfied an adjustment in those terms recognises the husband’s greater contributions to the marriage in the post-separation period as well as his ongoing obligation to provide support to the parties’ child. Those adjustments should be offset by the adjustment to the wife pursuant to s 75(2) of the Act to take into account the disparity in the parties’ income earning capacities. In addition to the equal division of the interests identified by the husband, the wife will have the benefit of retaining the property in Eastern Europe.
The husband seeks orders that the wife vacate B Street in anticipation of its sale. Given her failure to comply with previous orders of this Court I am satisfied that an order in those terms is appropriate. I propose to provide the wife with two months to vacate the property.
The husband also seeks to have sole responsibility for the manner in which B Street is sold. Whilst I recognise that the wife has failed to comply with orders of the Court and that as a result the husband should have primary responsibility for the management of the sale, I am not satisfied that the wife should be completely excluded from the sale process. The B Street property is the parties’ primary non-superannuation asset and the wife should have the opportunity to provide input into the process of its sale. Accordingly, I will make orders that give the wife the opportunity to participate in the selection of the selling agent, manner of sale and fixing of price for the sale. Ultimately, if there is no agreement with respect to those matters, an independent expert will be appointed to make such decisions on behalf of the parties.
The husband also seeks orders that he be entitled to damages in the event that he is required to take enforcement action with respect to these orders. I am not persuaded that such order is appropriate. If the wife fails to comply with these orders necessitating the husband to bring enforcement proceedings such application should be considered on its merits at the time of such application. The husband has had the benefit of costs orders arising from the wife’s non-compliance with previous orders of this Court and I am satisfied that it is appropriate that those sums be paid from the wife’s entitlements under these orders.
Accordingly, I make orders as follows:-
1.That on or before 22 October 2017, the wife provide vacant possession to the real property situate at and known as B Street, Suburb C, in the ACT (“the real property”).
2.That the real property be forthwith sold altogether out of court (called “the sale”) and the husband and wife forthwith do all acts and things and sign all necessary documents to effect the sale of the real property and by way of consequential arrangements that shall be made for the purpose of effecting a sale:
(a)The husband shall have the conduct of the sale; and
(b)The selling agent shall be agreed by the parties in writing within 14 days and in the absence of agreement shall be appointed by the President of the Real Estate Institute of the ACT or his nominee;
(c)The method of sale and terms and conditions of sale shall be as agreed between the parties in writing within 14 days of the appointment of the selling agent and if no agreement shall be determined by the selling agent;
(d)The reserve price shall be as agreed between the parties in writing within 14 days of the appointment of the selling agent and if no agreement shall be fixed by a valuer appointed by the President of the Real Estate Institute of the ACT or his nominee.
3.That there be liberty to apply with respect to the terms and conditions of the sale.
4.That upon completion of the sale of the real property, the proceeds be applied as follows:-
(a)Firstly to pay all costs, commissions and expense of the sale;
(b)Secondly to discharge the mortgage affecting the real property;
(c)Thirdly the balance then remaining be divided as follows:-
(i) 50 per cent to the husband; and
(ii) The balance then remaining be applied as follows:-
(A)First to discharge the liability on the wife’s Mercedes ML 300 vehicle (registration XSE 091); and
(B)Second, the balance to the wife.
5.That pending the completion of the sale:-
(a)Subject to Order (1) above, the husband have the sole right to occupy the real property and that during such right of occupation the husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as and when they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party.
6.That pursuant to s 90MT(4) of the Family Law Act 1975 (Cth), a base amount of $261,300.00 be allocated to the wife out of the husband’s interest in the D Super, member number 7653157.
7.That in accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the interest of the husband in the D Super, member number 7653157 (“D Super”) the wife Ms Simpson shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $261,300.00 and that there be a corresponding reduction to the entitlement the husband, Mr Simpson, would have had but for these orders.
8.That this order has effect from the operative time.
9.That the operative time for this order is four (4) business days from the date a sealed copy of these orders is served on the Trustee of D Super.
10.That having been accorded procedural fairness in relation to the making of this order, this order binds the Trustee of D Super.
11.That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the former matrimonial home being deemed to be in the possession of the wife);
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the husband;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the named owner;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
12.That in the event the wife fails or refuses to execute any document required to give effect to these orders, a Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of the wife and to do all acts and things to give validity and operation to these orders.
13.That it shall be sufficient authority for a Registrar to act pursuant to paragraph (12) hereof to have before him or her an affidavit sworn by the solicitor for the husband deposing:-
(a)That a specified document was sent to the wife for execution on a specified date; and
(b)That the document has not been returned, signed by the wife (and where necessary witnessed) within ten days of its posting.
14.That the wife pay the following costs of the husband:-
(a)Costs of 21 November 2016, fixed at $800; and
(b)Costs of 8 February 2017, fixed at $1650.
and such sums be deducted from the sum otherwise due to be paid to the wife pursuant to paragraph 4(c)(ii) hereof.
15.That all extant applications be otherwise dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 August 2017

Associate:

Date: 22 August 2017

[2017] FamCA 631

22 August 2017

Key Legal Topics

Areas of Law

Family Law

Property Law

Equity & Trusts

Legal Concepts

Costs

Procedural Fairness

Remedies

Jurisdiction