Waters and Waters

[2009] FamCA 568

FAMILY COURT OF AUSTRALIA

WATERS & WATERS [2009] FamCA 568

FAMILY LAW – INTERIM – Children and property issues

APPLICANT: Ms Waters

RESPONDENT: Mr Waters

INDEPENDENT CHILDREN’S LAWYER: Ms Bint of Legal Aid Queensland

FILE NUMBER: BRC 4640 of 2008

DATE DELIVERED: 9 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 9 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Leotta of Counsel appeared for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Cartwright Lawyers

SOLICITOR FOR THE RESPONDENT:	Mr Cain, Solicitor of Lynch & Associates appeared for the Respondent Husband
INDEPENDENT CHILDREN’S LAWYER:	Ms Bint, Solicitor of Legal Aid Queensland appeared on behalf of the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

Mother’s Application in Form 2 filed 23 April 2009

1. The property situated at 15 E Street, …, more particularly described as Lot … on RP …, County of …, Parish of … contained in Certificate of Title reference … be sold upon the terms and conditions as set out in Order (3) hereunder.

2. The property situated at 17 E Street, …, more particularly described as Lot … on RP …, County of …, Parish of … contained in Certificate of Title reference … be sold upon the terms and conditions as set out in Order (3) hereunder.

3. The following Orders apply to the sale of both properties:

   a)the parties are to do all acts and things and execute all deeds, documents, instruments in writing to forthwith sell the property with the Husband and Wife to jointly have the authority to conduct the sale;

   b)that in relation to sale of the property, the Husband and Wife will, if required:

   i.execute a contract of sale;

   ii.co-operate in every way with any real estate agents in relation to such sale;

   iii.allow inspection of the property at all reasonable times made by appointment by real estate agents;

   iv.ensure the property is in a neat and clean condition at the time of inspection by prospective purchasers;

   v.the parties shall appoint principally the solicitors for the Wife to act for the parties in the said sale, however, the said sale shall be conducted jointly by the solicitors for the Wife and the Husband; and

   vi.do all other necessary acts and sign all documents to complete the sale.

   c)the property is to be sold by public auction:

   i.at a reserve price to be determined by the Chief Executive Officer of the Real Estate Institute of Queensland for the time being or its nominated representative unless an agreement in writing as to the reserve price is reached between the parties within one (1) week of the date of these Orders; and

   ii.upon terms and conditions set out in Order (3(d)).

   d)That these terms and conditions apply to the sale by public auction:

   i.the auction is to be conducted by an auctioneer nominated by the Chief Executive Officer of the Real Estate Institute of Queensland or its nominated representative unless an agreement in writing as to the auctioneer is reached between the parties within one (1) week of the date of these Orders, which auctioneer will be a reputable real estate agent practising as an auctioneer within the locality of the area where the property is situated;

   ii.the auction is to be conducted within four (4) weeks of the date of these Orders;

   iii.that all costs of conducting the auction as referred to in these terms shall be deducted from the gross proceeds of sale;

   iv.if the sale price of the property does not reach the reserve price:

   (A)the Husband and Wife shall attend the auction sale and in the event that the property is not sold shall negotiate with the highest bidder; and

   (B)if such negotiations do not result in the property being sold forthwith the property is to be re-auctioned upon the same terms and conditions as contained in paragraphs 3(c) and 3(e) of these Orders.

   e)upon completion of the sale of the property the sale proceeds received are to be paid out in the following manner and priority:

   i.payment of all debts secured as at the date hereof currently secured over the property

   ii.payment of the agent’s commission, if any, due in relation to the sale;

   iii.payment of the legal costs of the sale;

   iv.payment of any advertising or other expenses necessarily incurred to give effect to this Order;

   v.payment of the outstanding arrears on the loan accounts for the property at L Street and T Street, P;

   vi.the balance to be held in the Wife’s solicitors trust account until final orders have been made with such balance to be periodically applied to any outstanding mortgage payments as and when they fall due.

4. Costs reserved.

IT IS FURTHER ORDERED THAT:

1. The parties attend confidential counselling at the Foundations Child and Family Service on the Sunshine Coast along with the children, M born … December 1996, E born … October 1999 and J born … July 2002, at all such times as the therapist shall direct.

2. An updated Family Report to be prepared by Mr S.  Such report is not to commence prior to the next Court mention date.

3. Leave is given to the Independent Children’s Lawyer to forward to the Foundations Child and Family Service copies of Mr S’s Family Report dated 15 December 2008 and the Children and Parents Issues Assessment of Mr F dated 26 March 2009.

4. The Mother and Father undertake random supervised drug testing as directed by the Independent Children’s Lawyer.

5. Leave given to all parties to inspect subpoenaed documents with the Independent Children’s Lawyer only given leave to copy.

6. The Father’s Contravention Application filed 3 June 2009 be adjourned for further mention to 10.00 am on 21 August 2009 at the Brisbane Registry of the Family Court.

7. The Father’s Application in Form 1 filed 31 December 2008 be adjourned for case management review to 10.00 am on 21 August 2009 at the Brisbane Registry of the Family Court.

IT IS NOTED that publication of this judgment under the pseudonym Waters & Waters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC4640/2008

MS WATERS

Applicant

And

MR WATERS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the wife on 23 April.  She seeks orders in accordance with paragraphs 1 to 4 of that application in a case. 

2. The parties own four pieces of real estate in the P district.  One is the former matrimonial home, which is currently occupied by the respondent, the husband.  That property is at T Street.  The respondent is a builder and a property was built on L Street, and that was the matrimonial home at the time of separation.  The applicant currently resides there with the three daughters of the parties, aged twelve, nine and six.  The children attend school in the P area.

3. The husband is out of work.  He was a self-employed builder and he says because of the economic downturn, he has closed his business.

4. The parties have significant mortgage obligations, and currently the mortgages are in arrears. The best summation I can find is at paragraph 9 of the applicant's affidavit of 23 April where she sets out the assets and liabilities.  The total assets are said to be about $1.48 million.  She says the parties are agreed that L Street is worth $550,000, T Street $610,000 and each of the vacant lots at 15 E Street and 17 E Street are $110,000 each.  The home loan liability is said to be around $250,000; the supplementary loan $168,000/$169,000.  There is a debt of about $200,000 to an ANZ equity manager account.  The land loan is $91,000.  There is a certificate from an independent valuer, N & Associates, valuing the respective properties at $110,000. 

5. Gadens Lawyers on behalf of the mortgagor wrote to the respondent husband on 23 March in the following terms:

   "We are writing to advise you that control of your accounts has been transferred from the mortgage operations department of the bank to this firm, due to the adverse conduct of the accounts.  Given the unsatisfactory conduct of your accounts, the bank has instructed us to proceed to issue formal legal notices for payment.  Failure to pay the moneys will result in an enforcement action being commenced.  In order to update the bank's records, please forward within fourteen days of the date of this letter to this office a copy of the current insurance policies."

6. The situation in respect of the financial circumstances of the parties is that nobody is in a position to make mortgage instalment payments at the present time.  The situation will simply continue to get worse.  The mother's proposal is to sell the two vacant allotments, use the funds from that as set out in her proposals at paragraph 3(e):

   "Payment of all debts secured as at the date hereof currently secured over the property, payment of the agent's commission, payment of legal costs and other costs of sale, payment of outstanding arrears on the loan accounts for [L Street] and [T Street] and the balance to be held in the wife's solicitor's trust account."

7. The respondent father, for his part, says, "sell the lot".  In the alternative, he says:

   "I will transfer [L Street] and transfer the balance of the properties into my name and remove various caveats and I will have 55  per cent of the assets, she can have 45 per cent."

8. The wife's proposals, as I understand it, she seeks 65 per cent to her name and 35 per cent to the respondent.

9. We can juggle the percentages later.  At this stage I think it is critical that the properties, particularly the properties occupied by the parties, be preserved.  To do that the only option I can see is to sell the vacant land.  I propose to make an order in terms of paragraphs 1, 2 and 3 of the wife's application filed on

   
   23 April 2009

   .  I will reserve on costs at this point in time.

   RECORDED  :  NOT TRANSCRIBED

10. I propose to adjourn this matter to 10 o'clock on 21 August. 

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  9 June 2009