Thatcher & Thatcher (No 3)
[2025] FedCFamC1F 293
•8 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Thatcher & Thatcher (No 3) [2025] FedCFamC1F 293
File number: CAC 1530 of 2021 Judgment of: GILL J Date of judgment: 8 May 2025 Catchwords: FAMILY LAW – PROPERTY – APPLICATION FOR ENFORCEMENT – Where both parties filed applications seeking the other comply with final orders regarding sale of the matrimonial property – Where both parties assert the other is responsible for the non-compliance with the orders – Where both parties seek alterations to the orders that deal with the sale of such property – Where enacting the husband’s proposed alterations would result in a substantive change to the orders – Sale of the property and avoidance of future litigation in the interest of both parties – Discharge and substitution of the order regarding sale of the property Cases cited: McDonald and McDonald (1976) FLC 90-047; [1976] FamCA 29
Thatcher & Thatcher (No 2) [2024] FedCFamC1F 598
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 28 April 2025 Place: Canberra Counsel for the Applicant: Mr Fox Solicitor for the Applicant: Blomfield Legal Pty Ltd Solicitor for the First Respondent: Litigant in person Solicitor for the Second Respondent: Litigant in person - did not participate ORDERS
CAC 1530 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR THATCHER
Applicant
AND: MS THATCHER
First Respondent
MR YANAI
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 MAY 2025
THE COURT ORDERS THAT:
1.Order 19 of the orders of 17 May 2024 is discharged and the following is substituted:
19.The mother is authorised by these orders to solely engage and retain an agent for the sale of the Suburb G Property on behalf of herself and the father.
(a)Within 14 days from the date of the orders, the mother shall do all acts and things and sign all necessary documents to effect the listing for sale of the Suburb G Property and for that purpose the following shall apply:
(i)The Suburb G Property shall be listed for sale by private treaty or by auction (if recommended by the agent) with such real estate agent as determined by the mother;
(ii)The list price or reserve price of the Suburb G Property shall be such amount as is agreed between the parties and failing agreement as nominated by the real estate agent;
(iii)At the auction the mother shall be responsible for negotiating with the highest bidder in the event of the reserve price not being reached.
(b)In the event that the offer to purchase at auction is at least 95 per cent of the reserve price as set out in the preceding orders then the parties shall execute the contract of sale for such amount and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
(c)The mother shall instruct Ms CC, or in her absence another solicitor of DD Lawyers, to act as conveyancer of the property sale and settlement, and the costs of and incidental to that appointment will be borne equally by the parties for this purpose.
(d)The mother shall give such instructions as are necessary to the solicitor to prepare a contract of sale and provide it to the auctioneer no later than the date sought by the auctioneer.
(e)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the Suburb G Property for sale including making the key readily available, always allowing inspection of the property reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(f)The proceeds of sale of the Suburb G Property shall be paid in the following manner and priority:
(i)To discharge the mortgage;
(ii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(iii)Payment of the legal costs and outlays relating to the sale;
(iv)Payment to the mother:
A.The sum of $17,000 plus interest calculated in accordance with Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in relation to the costs awarded following the father’s unsuccessful appeal;
B.The sum of $550 for the repair of the roof;
C.The sum of $1,150 for garden maintenance following the father vacating the property;
D.The reimbursement of sums paid by the mother to the agent in advance of the sale;
E.A sum equal to 67.5 per cent of any increase in the loan indebtedness for the Suburb G property for the period 4 September 2024 until 21 November 2024;
F.A sum equal to the amount by which the wife’s payments for the mortgage for the Suburb G property for the period 21 November until the date of the settlement of the sale of that property exceed those of the husband;
(v)Payment to the second respondent in the sum $161,000; and
(vi)To pay the amount set out in Orders 12-16 of the orders dated 17 May 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Thatcher & Thatcher has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment concerns the enforcement application filed by the wife on 16 January 2025 and the cross-application filed by the husband on 24 January 2025 each seeking to enforce the final property orders made 17 May 2024.
The orders deal with mechanisms for the sale of real property in Suburb G in Region EE, being the former family home. The compliance sought by the parties is specifically in relation to Orders 18 and 19 of the 17 May 2024 orders. As set out below, they formed a suite of orders to resolve the occupation of and then process for the sale of the property. In addition to strict compliance, each of the parties now seeks a departure from those mechanisms to respond to the ongoing issues associated with the sale of the Suburb G property and to avoid further litigation. The wife seeks further orders setting out a mechanism for sale; that the husband meet particular expenses for the upkeep of the property; for certain mortgage expenses, for costs; and for the payment of various expenses, with such being incorporated into orders dealing with the disbursement of monies from the sale. The husband seeks that a sale be effected to him in the sum of $905,000 and that the wife meet his costs.
Although the powers of the Court to deal with the substance of the judgment are spent, as identified by the Full Court in McDonald and McDonald (1976) FLC 90-047, the Court retains the power to “modify the machinery provisions of a property order provided this does not affect the substantive property rights or cause undue hardship to either party”.[1] The Full Court identified that necessary considerations include prejudice suffered by a party if further orders are made, the hardship that will be occasioned to a party if further orders are not made, and the substantive rights granted to each party by the orders.
[1] At 75,201.
Orders 18 and 19 of 17 May 2024 provide that:
18. That within 60 days from the date of these Orders the father shall do all to vacate the [Suburb G] Property and the following shall apply:
(a)The father will provide to the mother all keys including garage keys for the property;
(b)The father will leave the [Suburb G] Property in a neat and tidy condition; and
(c) The father will not cause any wilful damage to the [Suburb G] property.
19. That within 60 days from the date of the Orders, the mother and the father shall do all acts and things and sign all necessary documents to effect the sale of the [Suburb G] Property and for that purpose the following shall apply:
(a) The [Suburb G] Property shall be listed for sale by private treaty or by auction (if recommended by the agent) with such real estate agent as is agreed between the parties and failing agreement, with the father to propose three agents with the mother to select one;
(b)The list price or reserve price of the [Suburb G] Property shall be such amount as is agreed between the parties and failing agreement as nominated by the real estate agent;
(c)If the property is sold by auction, that the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached;
(d)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 95 per cent of the list price / reserve price shall be accepted by the parties as the sale price;
(e)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the [Suburb G] Property for sale including making the key readily available, always allowing inspection of the property reasonably requested by the agent and ensuring the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(f) That upon agreement being reached for sale of the [Suburb G] Property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(g)The proceeds of sale of the [Suburb G] Property shall be paid in the following manner and priority:
(i)To discharge the mortgage;
(ii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(iii)Payment of the legal costs and outlays relating to the sale;
(iv) Payment to the second respondent in the sum $161,000;
(v)To pay the amount set out in Orders 12-16.
It may be observed that the 60 days referred to in the above orders has passed without the house being sold or auctioned.
Background
Following eight days of final hearing, judgment was delivered in this matter in relation to both property and parenting on 17 May 2024.
On 14 June 2024 the husband filed a Notice of Appeal. On 10 July 2024, he filed an application seeking a stay of Order 18 pending the determination of appeal. The Full Court dismissed the husband’s appeal on 1 November 2024.
The husband’s case here relied heavily upon the proposition that the wife has caused significant delays to the sale process, in a manner that indicates the need to make machinery orders to effect the sale in a manner that does not rely upon the wife’s participation.
The two primary examples advanced by the husband are the wife’s cancelling of the marketing process for the home accompanied by her rejection of a third party offer following the grant of the stay pending the appeal, and then following the dismissal of the appeal in November 2024, the wife’s opposition to an auction in mid-December, or at the beginning of February 2025 (the wife instead proposing a date in mid-February).
The result of these actions was not only the potential delay of sale but also meant that it was necessary to re-engage with the real estate agents and enter into a fresh agency agreement and marketing agreement, and to meet further expenses related to the agent. Although there was some delay in the wife executing these documents, the husband had still not entered into the fresh marketing agreement by the start of January 2025.
Although it can be concluded that the wife could have acted more promptly, the context of these events needs to be properly understood.
The stay application previously filed by the husband pending the appeal related to the obligation, pursuant to Order 18, that he provide vacant possession of the property to the wife to facilitate the sale of the property. The property was then occupied by the husband’s parents. The application for a stay was in the company of competing applications made by the parties in pursuit of the sale of the Suburb G property. Despite then pursuing an appeal in relation to the orders, during the hearing of the stay application, the husband sought that the wife be required to complete a sale of the property to him, contending that he had offered 95 per cent of the listing price to purchase the Suburb G property and that the wife must accept this. This relief was refused.
The wife sought vacant possession in order to further the sale of the Suburb G property pursuant to Order 19.
The husband’s application to stay the operation of Order 18 was granted, on terms that the husband was liable for any interest or charges in relation to the loan in respect of that property pending the resolution of the appeal. The husband’s application that the property be sold to him was refused.
The husband contended, on the current application, that the subsequent withdrawal from sale by the wife formed an improper delay, as the accompanying Order 19, that provided the mechanism for sale, had not been stayed. This position fails to recognise that orders 18 and 19 operated together to facilitate the sale of the property. It fails to grapple with the following portion of the stay judgment that explained why the enforcement of Order 19 as sought by the husband in his stay application was then inappropriate, by virtue of the appeal being pursued by the husband:
However, it is not appropriate to give enforcement of the orders sought at this stage for a number of reasons. The first is that the husband seeks by his appeal to vary the underlying percentage split in a significant manner. The current mechanism for sale is designed to facilitate the order in its current terms. If the husband succeeds on appeal, there is no guarantee that the mechanism will remain in place following either orders being substituted by the Full Court or following remittal. There is good reason why, in circumstances where the husband seeks a stay of an order that was in part designed to facilitate the sale, he should not then be permitted to enforce another aspect of those orders.[2]
[2] Thatcher & Thatcher (No 2) [2024] FedCFamC1F 598 at [12].
The contention that the wife’s withdrawal of the property from the sale process is anything other than an appropriate response to the granting of the stay sought by the husband is misplaced.
The second aspect of delay attributed to the wife flows from the wife’s resistance, following the dismissal of the husband’s appeal on 1 November 2024, to an auction of the property either in mid-December or at the start of February 2025. Rather, the wife sought an auction date in mid-February 2025. This resistance came in the context of the property not being vacated until around 22 November 2025.
The wife accepted that she had resisted such listings, explaining at Exhibit H1 that she considered that the property was not then presentable for sale, as the garden required work, a hole in the roof required repair, and that the window for sale during 2024 had been lost. This was contra the recommendation by the agent that the home be promptly brought on for sale in an “as is condition”, the agent describing the property as in excellent condition.
Whilst the steps identified by the wife may have improved the condition and appeal of the property for sale, they formed delays that were not identified as necessary by the real estate agents.
However, in attributing responsibility for delay to the wife, it cannot be ignored that the husband failed to execute the fresh marketing agreement necessary to promote the sale of the property. He had still not done so at the start of January 2025. This was in the context that he continued to contend that the wife was obliged to sell the house to him pursuant to particular offers that he had made. He further pursued this by his response filed 24 January 2025, in response to the wife’s application for enforcement of 16 January 2025 where she sought, amongst other relief, that the husband execute the marketing agreement to allow the property to go to market.
Although prior to the hearing of this matter the husband continued to pursue a case that the orders gave him the right to purchase the Suburb G property at 95 per cent of the list or reserve price without the sale proceeding to an auction, at the hearing the husband, appropriately, did not pursue this construction of the orders. Accepting that no right in those terms was vested in him by the orders, the husband instead submitted that the orders that he pursued were, in context, an appropriate just and equitable mechanism to resolve the sale of the property.
Whilst the wife may have been the author of some delay, the husband is the author of the continuing delay.
The relief sought by the husband
The substantive orders provide, in general terms, for a 67.5-32.5 split favouring the wife. At trial it was determined that the Suburb G property had a value of $930,000, and a net value of approximately $450,000. A potential 5 per cent discount in the sale price to the husband (a potentiality under the husband’s scheme given that, if the husband’s application was acceded to, the actual value of an arm’s length sale would not be established) equates to about $46,500. Given the overall structure of the orders, if this constituted a 5 per cent discount from an arm’s length sale, the wife would forego 67.5 per cent of the $46,000, being approximately $31,000. The foregoing of this amount by the wife is to the benefit of the husband, and effectively would constitute a subsidising of the discounted price to be enjoyed by the husband. This amount should not be considered to be insignificant, and, on its face works a substantive change to the scheme of the property division. On this basis alone it should not be permitted, as beyond the power of the Court to effect a substantive change.
Even if this analysis is incorrect, and power exists to make such an order as a merely machinery order, as a matter of discretion the orders sought by the husband should not be made. The relatively modest delay authored by the wife does not justify the compelled sale as pursued by the husband, particularly where the responsibility for the bulk of the delay rests upon the husband.
The relief sought by the wife
The wife sought a suite of orders dealing with the upkeep of the Suburb G property pending sale, the responsibility for various expenses, and permitting in some part the wife to deal with the agent and effect the sale without requiring the cooperation of the husband. The orders also provide for the wife to receive certain payments from the proceeds of the sale. It is in the benefit of both parties for such sale to occur.
Discussion
It can be observed that the general framework provided by the orders made at trial for sale remains an appropriate approach to effecting the sale, subject to minor supplementation.
First, it remains appropriate that the parties jointly bear the ongoing expenses for the Suburb G property pending sale. This includes the expenses incurred by the wife for gardening and the repair of the roof, which, even if not required by the real estate agent, constitute appropriate upkeep of the property. This also includes the mortgage expenses since the surrendering of vacant possession (those following the stay but prior to such being dealt with in the stay orders). The sharing of the mortgage is consistent with the scheme of the orders, and consistent with each of the parties being responsible for some aspects of the delay.
To the extent that a party’s share has not been paid, the other party should be reimbursed from the sale proceeds. The identification of these amounts will be set out further below.
As for who will deal with the real estate agent and negotiate sale, there can be no expectation of cooperation. As far as can be ascertained, the husband still pursues a purchase of the property. Under those circumstances, it is not in his interests to maximise the sale price, and he has not facilitated the process to allow such to happen. The wife is motivated to obtain the best price, which holds benefit for both the parties, subject to the framework set out in the orders currently.
There remains the potential that, absent an offer by someone over the reserve price, the husband may be able to acquire the property at 95 per cent of the reserve.
The current orders provide an appropriate mechanism for the setting of a reserve price, and for sale. Those mechanisms provide sufficient protection for the husband even if it is left to the wife to solely engage with the real estate agent. Allowing the wife to do so without the need to engage with the husband is an approach that holds better prospects for promoting the sale of the property than requiring both parties to interact with the agent at each point, including the sale.
Conclusion
Order 19 will be modified to reset an appropriate time frame for sale, and to leave it solely to the wife to engage with the agent, provided that the wife then advises the husband of her interactions with the agent.
Order 19 will provide for the wife to solely negotiate with the highest bidder in the event that the reserve is not reached, but will retain the default sale price of at least 95 per cent of the reserve in the event that reserve is not reached.
Order 19 will be further modified to provide for the adjustment of settlement payments in accordance with the obligations of the parties. This will include a provision to ensure that any increase in the indebtedness of the loan in respect of the Suburb G property referable to the period of continuing occupation by the husband by virtue of the stay does not decrease the interest of the wife.
To facilitate this, a payment to the wife of 67.5 per cent of any such amount will be required before the balance of the distributions from the sale funds.
To the extent that the wife sought other reimbursement of expenses in relation to the Suburb G property, there should be no further departure from the scheme of sharing expenses set out in the primary orders. However, an allowance will need to be made for any inequality in meeting the mortgage since the husband’s vacating of the property.
In the event that a party seeks costs then it remains open for that party to do so within 28 days of these orders, observing that although the wife pursued a sum for the costs of this application she did not appear to have engaged a lawyer and thereby incur such costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 May 2025
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