STENNER & STENNER

[2016] FamCA 76

FAMILY COURT OF AUSTRALIA

STENNER & STENNER [2016] FamCA 76

FAMILY LAW – PROPERTY – interim orders – where orders are made reducing the sale price of the former matrimonial home – where orders are made for the appointment of a conveyancer – where orders are made for the distribution of proceeds for the sale of the property – where further consideration of the wife’s Application in a Case (interim spousal maintenance) is adjourned.

FAMILY LAW – CHILDREN – interim orders – where the husband seeks orders for the children to be enrolled at a different school – where the Court is not satisfied that the financial circumstances of the husband are clearly set out as to require the change of school - where the Court considers that on an interim basis an order of this sort would not be in the best interests of the children.

Family Law Act 1975 (Cth)

APPLICANT: Ms Stenner

RESPONDENT: Mr Stenner

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Noarlunga

FILE NUMBER: ADC 4389 of 2014

DATE DELIVERED: 9 February 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Gilbert & Partners

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Tydeman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission Noarlunga

Orders

1. The sale price at which the former matrimonial home is to be listed shall be reduced to ONE MILLION DOLLARS [$1,000,000.00] for a period of three [3] months and if the property is not sold during that period the sale price be reduced to NINE HUNDRED THOUSAND DOLLARS [$900,000.00] and that thereafter the listing price should be as agreed upon by the parties and failing agreement as determined by a valuer appointed by the parties.

2. B Conveyancers (“the conveyancer”) be appointed as the conveyancer to have the conduct of the sale of the former matrimonial home.

3. The parties shall each execute a contract for sale in the form prepared by the agent or conveyancer having the conduct of the sale at a price and upon terms agreed upon by the parties, or in the absence of any agreement, at the price nominated by the valuer as being the best price and terms reasonably obtainable at that time.

4. Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the home or to any commission.

5. On settlement of the sale of the former matrimonial home the proceeds of sale be paid in the following manner:

   5.1the amounts required to discharge the mortgage secured over the former matrimonial home and fees of and incidental thereto;

   5.2all costs and expenses of sale including legal costs and disbursements, agents commission, valuer’s fees, auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);

   5.3the amounts required to pay all municipal and water rates outstanding with respect to the former matrimonial home;

   5.4the balance then remaining shall be invested in an interest bearing account in the names of the parties.

6. Further consideration of paragraph 1 (interim spousal maintenance) of the wife’s Application in a Case filed on 20 November 2015 is adjourned to Wednesday 9 March 2016 at 9.00 am before the Honourable Justice Dawe UPON NOTING that the Independent Children’s Lawyer is excused from attendance on the adjourned date.

7. Costs of both parties are reserved to be determined by the trial Judge.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4389 of 2014

Ms Stenner

Applicant

And

Mr Stenner

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This is an interim hearing in relation to matters concerning both children’s issues and financial matters. 

2. The Application in a Case filed on 20 November 2015 by the mother seeks:

   1.That the husband do pay the wife the sum of $150.00 by way of spousal maintenance until such time as these property matters are resolved.

   2.That the wife to provide the husband with an (sic) itemized accounts of all work undertaken with copies of receipts for payments made.

   3.That the husband do pay half the costs associated with ensuring the former matrimonial property is maintained during the period of its sale with the monies to be paid into the wife’s bank account upon presentation by the wife of all receipts for work undertaken on the property.

   4.That the father recommence payments in respect of the mortgage with Citi Bank over the former matrimonial home.

3. I have been asked to strike out or deal with the matter of paragraph 1 on the basis that it is only seeking $150 by way of spouse maintenance.  I do not strike that out.  It is clearly a typographical error, or one of the typographical errors committed by people purporting to be solicitors acting on behalf of the parties in these proceedings.  It should have read $150 per week.  I do not think that the case would be improved by striking out that application because of the typographical error.

4. The response to the Application in a Case filed by the father on 30 November 2015 seeks orders dismissing the application filed by the wife.  In paragraph 2 it seeks:

   That it being noted that the parties have agreed to appoint [Mr A] of [C Real Estate] as the agent for the sale of the former matrimonial home being the house property situate, known as [D Street, Suburb E] in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … (“the former matrimonial home”) that the parties do all acts and things and sign all documents necessary so as to effect a sale of the former matrimonial home for the best price reasonably obtainable in the following manner:…

5. It seeks that the sale price at which the home should be listed should be reduced to $900,000, and any further reduction for the listing price should be agreed upon by the parties, or in the absence of agreement reached within 14 days of the date of this order to be as a price nominated as the fair market value by a valuer appointed by the South Australia division of the institute of valuers – such appointment and valuation to be borne equally by the parties as and when the same fall due.

6. It then refers to the parties Fating with the agent to allow certain steps to be taken, which would, of course, be the normal arrangements made in relation to the sale of the property, the appointment of conveyancers, and the contract of sale at a price and upon terms agreed by the parties, or as nominated by the valuer.

7. The application continues “neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the home or to any commission”. 

8. Paragraph 3 sets out what is to be done upon the sale of the former matrimonial home, listing various payments to be made.

9. After detailed questioning in relation to the financial statement of the husband and his affidavit it appears that items 3.1 to 3.4 are owed to Citibank. Then there is a debt on a joint credit card to Westpac, and other expenses in relation to items being paid, including the costs of the agent’s commission and auction expenses, and water rates and the balance to be invested in an interest bearing account.

10. Paragraph 4 states that the respondent be permitted to enrol the child, F, at G Town High School, and the child, H, at G Town Primary School for the start of the year in 2016.  The father then seeks costs and such further or other orders the Court deems just and equitable. 

11. I have heard detailed submissions from counsel for both of the parties and for the Independent Children’s Lawyer in relation to children’s issues.

12. What is difficult in this matter is the inability of the parties to agree fairly basic matters in relation to the conclusion of the property settlement matters.  Added to that is the allegation that the parties have not complied with the rules.  In particular, the husband has not complied with the rules in relation to disclosure of financial information, which would allow the wife and her advisors to assess the financial position. 

13. I am told from the bar table that the income tax forms for the husband and his related entities have been completed for the period up to 30 June 2014.  Those for the year ended 30 June 2015 are being completed, and that the BAS statements for the businesses to the end of December 2015 are being completed.

14. It is difficult to assess the exact circumstances of the parties, bearing in mind the recent financial statements which have been filed by the wife on 5 February 2016, and by the husband on the same date being 5 February 2016.  There appear to be omissions and inaccuracies in the documents. 

15. The difficulty is the need to assess on an interim basis the evidence upon which the Court must apply the provisions of the Family Law Act.

16. Dealing, firstly, then with the application by the wife for the husband to pay the sum of $150 per week by way of spouse maintenance.  I take into account that in the past there was an order which has now expired, which provided for that to be paid and that order was made in the lower court in circumstances somewhat similar to the present circumstances. 

17. However, in relation to the assessment of the husband’s capacity to pay I am satisfied that it is not appropriate to make that decision, bearing in mind that on the face of his financial statement he is not in a position to make the payment.  The issue is clearly whether there has been the appropriate full disclosure and discovery of documents which would allow the Court to better assess his actual financial circumstances. 

18. I therefore propose to adjourn paragraph 1 of the wife’s application in relation to spousal maintenance to a date which would allow the parties to inspect the necessary documents.  The husband says he needs six weeks to provide those documents and it appears some of them are being kept by his accountant.  I would normally anticipate that the basic documents would certainly be within the power, possession or control of the husband, and that a period of approximately four weeks for an adjournment date should be sufficient.

19. In relation to the payment of the work to be undertaken and receipts for the payment of the same which the wife seeks in paragraphs 2 and 3 of her application and if the parties are unable to agree upon sharing the costs of maintaining the property, and the wife makes the payment for the same this will be an adjustment which will be taken into account in the overall assessment of the contributions of the parties when a final property settlement is determined.  This will be assessed on the basis of the husband’s refusal to contribute, if the wife has presented him with a reasonable account for work that was appropriately carried out to maintain the property.

20. I therefore decline at this stage to make orders in terms of paragraphs 2 and 3 of the wife’s application  and would dismiss those proceedings, save and except they will relate to the costs the wife will need to incur on her own behalf of maintaining the property.  That will relate to her interim spouse maintenance application.

21. Paragraph 4 is that the father recommence payments in respect of the mortgage with Citibank over the former matrimonial home.  The financial statement of the husband sets out that there are significant amounts owing to Citibank in relation to the former matrimonial home, and secured by way of mortgage over the former matrimonial home, both in relation to the mortgage to purchase the property and in relation to the debts incurred in relation to the business.

22. The husband’s financial statement says under “other mortgage payments” Citibank (Moratorium 2 July 2015), and then does not give any figure.  The husband sets out in relation to the figures which are provided in annexure “M” various items, but does not make clear whether he is making any contribution at all in relation to the debts to Citibank.  Again, if the matter proceeds to trial in overall property settlement when the Court is faced with proper evidence a determination will be made as to the extra costs incurred and the debts of the parties.  Adjustments can be made for any default charges and interest incurred in relation to those matters appropriately.  It is, therefore, not appropriate, on the status of the evidence before me at the moment, to make a determination even by way of interim order in relation to those matters.

23. The response to the Application in a Case file by the husband seeks orders in relation to the sale price of the former matrimonial home being reduced to $900,000.  The agreement which the parties signed, which I seem to calculate will expire about 24 February 2016, was a three month agreement to market the property at $1.1 million.  The agents indicate that it has not been successful.  The husband is seeking a reduction to $900,000.

24. The wife’s counsellor indicates this morning that the wife will agree to reduce the price to one million dollars.  The issue, therefore, is whether the Court is in a position to reduce it further.  I am of the opinion that the Court needs to have better information before it than the evidence which is currently before it.  However, it is also clear that the debts of the parties are mounting, and the sale of the property would be a significant value to both of the parties, enabling them to reduce significant debts.  I therefore propose to make an order that the sale price at which the home is to be listed shall be reduced to $1 million for a period of three months and if, during that period, the property has not sold then the sale price be reduced to $900,000.  Thereafter the listing price shall be as agreed upon by the parties, and, failing agreement, as determined by a valuer appointed by the parties.

25. The parties are required in any event to Fate with the agents allowing for actions to be taken to promote the sale.  But there is a necessity in this case to make an order in terms of paragraph 2.2, requiring the parties to Fate.

26. Paragraph 3 of the husband’s application seeks orders in relation to the monies to be used on settlement of the sale of the former matrimonial home.  I would propose to make a standard order in the terms of on settlement of the sale of the former matrimonial home, the proceeds of sale be paid in the following manner;  to discharge the mortgage secured over the former matrimonial home and the fees incidental to that.  I assume that that would cover paragraphs 3.1, 3.2 and 3.3 and 3.4, but if there is any argument about it I will leave it to what is actually covered by the mortgage, rather than specifying the particular accounts.

27. Paragraph 3.7 relates to the costs of and expenses of the sale, and that is the standard order, as is paragraph 3.8, covering outgoings that are normally required to be paid on settlement.  Paragraph 3.9 provides for the balance then to be invested in an interest-bearing account and held in the names of the parties pending further order.

28. The next order sought is that the father seeks that he be permitted to enrol F in the G Town High School and H in the G Town Primary School for the commencement of the year 2016.  The information before the Court indicates that the husband sees this as significantly a financial issue due to the costs of the private school of I School, which the children have been attending for some years.  The wife opposes that order.  The children are aged 13 and seven and have been attending I School for some time.  They have been in the primary care of the father for a considerable period of time, and F has not spent time with the mother for a considerable period of time.  There are issues in relation to his relationship with the mother.  H spends alternate weekends with the mother and other occasions.

29. The difficulty in this matter is that there is considerable issue about the husband’s financial circumstances, and the matter being determined on an interim basis needs to take into account both the financial circumstances of the parties, but more significantly what is in the best interests of the children, as the transfer to a different school will have a significant impact upon the children.  On an interim basis, I am not satisfied that the financial circumstances of the husband are so clearly set out as to require the change of school, it being clear that some arrangements can be made with the current school to reduce the fees paid and possibly defer payment.

30. The other significant factor is the best interests of the children, who have been attending I School for a period of time, and the disruption to their arrangements which may well occur, should they change schools.  I have received submissions from the Independent Children’s Lawyer that F has expressed a wish to change schools and referring back to the bullying which has occurred in the past at the I School.

31. However, again, in relation to the parents being unable to decide and determine without the Court making the decision for them, I am concerned that on an interim basis an order made to change the children’s school is not an order that at this stage would be in the best interests of the children, taking into account the significant consistent routine and familiar environment which the children have experienced at the I School and what appears to be their settled routine and ongoing success on a reasonable level at the I School.

32. This does not mean that eventually a change of school might not be considered in the children’s best interests, but, taking into account all of the factors, at this stage, based on the limited information that is available and notwithstanding that F has expressed a wish to change school.  I also take into account that this would mean that the children would be attending different schools, the younger child going to a primary school and F going to a high school, whereas they currently attend the same school.  I therefore decline to make the order in relation to the change of school.

33. The adjourned date for the hearing of the interim spouse maintenance is 9 March 2016 at 9.15 am. The matter is already in the list of matters waiting to be given a final hearing date.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 9 February 2016.

Associate: 

Date:  17 February 2016