VINCENT & VINCENT

[2015] FamCA 570

FAMILY COURT OF AUSTRALIA

VINCENT & VINCENT [2015] FamCA 570

FAMILY LAW – Enforcement — balance of convenience — just and equitable for wife to have sole conduct of the sale of properties

APPLICANT: Ms Vincent

RESPONDENT: Mr Vincent

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3647 of 2013

DATE DELIVERED: 23 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 23 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson QC

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Kirkham QC

SOLICITOR FOR THE RESPONDENT: Mills Oakley

Orders

IT IS ORDERED THAT:

1. Order 4 of the Orders made on 20 November 2014 (“November Orders”) be further varied to provide that:-

   a)the applicant wife have sole conduct of the sale, including but not limited to determining all terms and conditions of sale and instructing a solicitor to undertake all legal work in relation to the sale, of the following real properties:-

   i)      1 C Street, Suburb D, Victoria and being more particularly described in Certificate of Title Volume … Folio … (“1 C Street”);

   ii)     2 C Street, Suburb D, Victoria and being more particularly described in Certificate of Title Volume 9373 Folio 335 (“2 C Street”); and

   iii)    3 C Street, Suburb D, Victoria and being more particularly described in Certificate of Title Volume 9373 Folio 336 (“3 C Street”);

   collectively, “C Street”.

   b)within 48 hours of written request by the applicant wife, the respondent husband do all acts and things and sign all documents necessary to facilitate to the sale of C Street; and

   c)if the respondent husband fails to comply with sub-paragraph (b) hereof, pursuant to Section 106A of the Family Law Act 1975, the Senior Registrar of the Family Court of Australia at Melbourne or his nominee be appointed to execute all deeds and/or instruments in the respondent husband’s name in relation to the sales of the Units and to do all acts and things to give validity and operation to any deed or instrument so executed.

2. To the extent that it may be necessary, the husband do all acts and things necessary to authorise and request Mr E, valuer, to confer with the wife at her expense in relation to description of the goods and chattels which are subject of the insurance claim made by the respondent husband and as far as practicable do so at a time and date prior to the husband’s appointment with Mr E on 30 March 2015.

3. The further hearing of this matter be adjourned to 6 July 2015 at 9.00 am and not less than 7 days prior the practitioners for the parties write to each other setting out what orders they will be seeking on the return date.

4. I reserve all questions of costs of and incidental to this day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vincent & Vincent 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 MELBOURNE

FILE NUMBER: MLC 3647 of 2013

Ms Vincent

Applicant

And

Mr Vincent

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This matter comes before me by way of an application in a case filed on behalf of the wife on 11 March 2015 in respect of which times for service were obeyed if the application was served on the husband by 13 March 2015.  The application, I am informed, was served on the day that it was filed.  Therefore, that requirement has been met. 

2. The nature of the application is enforcement. Mr Dickson QC, who appears for the applicant wife, identifies the source of power that he seeks the Court exercise as being that contained in s 114(3) of the Family Law Act 1975 (Cth) which provides that:

   A court … may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

3. Mr Kirkham QC appears on behalf of the husband.

4. The property proceedings between the husband and the wife were in my docket and set down for final hearing to commence before me on 4 December 2014.  Prior to the date of the hearing, the parties engaged in alternative resolution dispute resolution processes including a mediation with the Honourable Mr Peter Young QC.  Ultimately — and to their credit — the parties resolved their differences and jointly sought orders be made in the terms of a minute of orders which was handed up to me on 20 November 2014.  I was satisfied that it was just and equitable to make an order altering property interests and proper that the order be made in the terms sought by the parties.

5. The final financial Order was detailed.  Broadly speaking, the Order provided for the wife to receive certain monies which were comprised of a sum from the proceeds of sale of various real properties and then a further amount calculable as a percentage of the proceeds of sale of those properties less only selling expenses.  There were other orders relating to matters not monetarily as valuable as the real property but certainly important to the parties, such as the proceeds of an insurance claim, the disposition by each of them of the motor vehicles they owned and a distribution of the proceeds of sale from those vehicles, division of superannuation (which is under the control of the husband) and the reconciliation by the husband of rental income for properties which he had been managing and continues still to manage.

6. The application in a case that comes before the Court today seeks orders in respect of nearly all of the above.  There are no orders sought in relation to superannuation. 

7. It was agreed early in the day that the matter would proceed by way of submission only.  No cross examination was sought.

8. The wife attends Court with her solicitor and, as I have indicated, Mr Dickson QC appears on her behalf.  The husband does not attend Court; however his solicitor is here to provide instructions to Mr Kirkham QC. 

9. Mr Kirkham QC has argued very forcefully and strongly against the relief sought by the wife.

10. Neither party opposed me dealing with the wife’s application for sole conduct of the sale of three units in Suburb D separately from the balance of the wife’s application.  It’s fair to say that Mr Dickson concedes that there is some difficulty with some of the relief sought by the wife, though he refers to her application as practical solutions to what his client considers to be the intractable problem of the husband not complying with orders.

11. Mr Dickson pursues paragraph 2 of his client’s application, that is, that the applicant wife have sole conduct of the sale of three units in C Street, Suburb D, and that, in the event that the husband fails to comply with the signing of documents in an orderly and reasonable manner, the Registrar can sign on his behalf. Mr Kirkham submits that relief, if granted, would be “draconian”. I’m prepared to assume that he intends to convey that it would not be just or convenient within the terms of s 114(3).

12. In spite of Mr Kirkham’s submission as to facts and his very forceful arguments, I am satisfied that the husband has dragged his feet in relation to the sale of the units in C Street, Suburb D.  When I say “dragged his feet”, he has delayed the process without an adequate excuse for the delay. 

13. At paragraphs 18–22 inclusive of the husband’s affidavit, which was sworn or affirmed today, the husband does set out a series of reasons why he was unable to attend to various matters.  The reasons included attending upon patients in his capacity as a psychiatrist.  It includes that the parties’ child, Mr F, who operates as the husband’s practice manager as well as being a student, was out of the country and that the husband has been fatigued by suffering sleep apnoea.  The husband, being a psychiatrist is well versed in being able to seek treatment for sleep apnoea.  Even having regard to the excuses put forward by the husband, I’m not satisfied that he has explained his inordinate delay.  There are some delays that the husband does not even seek to explain.

14. The parties received various advices and had expert evidence in relation to the value of the three properties that have to be sold.  Arising out of that, they compromised the reserve prices for the properties.  These reserves are set out in the orders made on 20 November.  Hopefully, the properties will bring more than the reserve prices upon which the parties have agreed.  However, if they brought just the reserve prices that the parties have agreed upon, there will probably be something like $2,000,000 by way of net proceeds of sale.

15. The extant orders provide that, from the proceeds of $2 million, the wife must receive the first $910,000.  The extant orders say that the wife is then entitled to 45 per cent of the net sale price, which is the gross sale price less only the estate agent’s account sales.  If the properties were to bring the reserve prices, that would be about another $900,000.  It appears therefore that, without regard being had to the capital gains tax in respect of which there is allowance for payment from the proceeds of sale, the wife is going to receive the first $1,810,000 of the proceeds from the properties if they sell for the reserve price.  I conclude therefore that the proceeds are largely going to be the wife’s. 

16. Otherwise, Mr Kirkham concedes that both parties will want as much as they can get for the properties.

17. As it is, the properties are listed for sale appreciably later than they would have been listed if the husband had acted promptly in January 2015.  I note that for each month or week that goes by during which the properties are not sold, the mortgages affecting the properties are paid from the rental income generated by the properties.

18. I am satisfied that it is just and convenient to grant the relief sought by the wife in relation to sole conduct of the sale and I do so.  That means that I will make orders in the terms of the first paragraph 2 of the wife’s application in a case. 

19. The balance of the relief sought will be adjourned, Mr Dickson seeks, for approximately three months.  I would hope that it will not be necessary to return the matter back to Court for any form of contest because the parties can organise their affairs so that there might be adjustments between them in relation to costs or whatever but the balance of the orders made on 20 November 2014 as amended by the orders made on 23 December 2014 can be implemented.  However, in case the parties are still in dispute, I will appoint 6 July 2015 as a further date.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 23 March 2015.

Legal Associate:

Date: 18 May 2015