Watson and Pierce

[2008] FamCA 631

FAMILY COURT OF AUSTRALIA

WATSON & PIERCE [2008] FamCA 631

FAMILY LAW – PROPERTY – Interim distribution

APPLICANT: MS WATSON

RESPONDENT: MR PIERCE

FILE NUMBER: MLC 7473 of 2007

DATE DELIVERED: 28 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 28 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.R. Williams

SOLICITOR FOR THE APPLICANT: Slater & Gordon

COUNSEL FOR THE RESPONDENT: Ms M.L. Smallwood

SOLICITOR FOR THE RESPONDENT: Pearsons

Orders

1. The Husband and Wife forthwith do all acts and things and sign all necessary documents to apply for a loan from the Commonwealth Bank, 385 Bourke Street, Melbourne in their joint names and as joint/several guarantors to discharge the present mortgage and outstanding outgoings over the matrimonial home at M to the ANZ Bank.

1. The Husband and Wife be and are hereby restrained from doing any act or thing which may prejudice the loan application set out in paragraph (1) hereof.

1. That upon refinancing the property pursuant to paragraph (1) hereof each party be restrained from further encumbering the property without the written consent of the other.

1. That in the event that the Commonwealth Bank refuses to approve refinancing in accordance with paragraph (1) hereof the Wife be at liberty to proceed with an application for refinance in her name solely to discharge the mortgage and outstanding outgoings as per paragraph (1).  For the purposes thereof the Husband and Wife do all acts and things to transfer the property into the Wife’s sole name.

1. That upon refinancing in accordance with paragraph (4) hereof the Wife be restrained from further encumbering the property without the written consent of the Husband.

1. That upon approval for refinancing pursuant to paragraphs (1) or (4) hereof the Wife be at liberty to make all necessary arrangements to lease the property for a minimum period of 12 months and shall advise the Husband’s Solicitors in regard to the same 14 days prior to the execution of the lease.

1. The Husband shall within 30 days hereof complete all work at the joint expense of the Husband and Wife to enable the property to obtain a Certificate of Occupancy.

1. The Wife shall make the property available to the Husband at all reasonable times to enable the Husband’s compliance with paragraph (7) hereof.

1. The Husband forthwith supply the financial information set out in annexure “A” hereto to the Wife’s Solicitors.

1. The Wife forthwith sign an authority with K Accountants to enable completion of a report.

1. That the proceedings be adjourned to a Conciliation Conference on 10 October 2008 at 10.00am.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 7473 of 2007

MS WATSON

Applicant

And

MR PIERCE

Respondent

REASONS FOR JUDGMENT

1. This is the wife's urgent application to have the former matrimonial home transferred into her name from the parties' joint names, and for her to take over the responsibility for an ANZ mortgage.  There are two parts to the monies outstanding to the ANZ.  One is a loan that was taken out when the parties purchased the land.  The other is a loan in relation to the parties' business. The urgency of the application arises because the ANZ has made it clear that they are about to foreclose on the mortgage. 

2. I have heard a long history today from the wife's perspective.  I have not heard the detail from the husband's perspective because we started discussing some potential orders by way of consensus.  I have made it clear that what I have heard certainly does raise concerns but I cannot form any concluded view about the way the husband has dealt with the parties' business because I am not across all the material in that regard.  It is certainly a fertile area for the trial. It at the very least raises the spectre that the husband has undertaken some sort of transaction whereby the business has been transferred from one entity to a new entity controlled by him, for a sum of money without there being any real understanding as to how that sum was arrived at.  But I do emphasise the situation might look quite different when further details emerge and he puts his case.

3. Unfortunately, there has been an ongoing argument as to whether the appropriate documentation has been forthcoming between the husband and the wife, or from the voluntary liquidator brought into the midst of the case by the husband.  There is agreement that I should order a new conciliation conference today, and that I should make orders for various documents to be handed to the wife, so that the wife's accountant can complete a valuation as soon as possible.

4. There is some consensus now that the parties together will do all that they can to refinance the former matrimonial home.  The wife's version is that the ANZ Bank is not interested in dealing further with the parties.  She has made her own inquiries from the Commonwealth Bank and if the property is in her name, she will be able to obtain a $400,000 loan from the Commonwealth Bank.  That would enable the property to be retained.  She hopes to retain that property long term after the final court hearing.  In the short term before the case is heard, she is not able to afford to meet the Commonwealth Bank loan without leaving the premises, renting cheaper premises, and renting the home out to tenants.

5. The parties have two children who are aged 13 and 11.  They live eight nights a fortnight with their mother, six nights a fortnight with their father.  Since the parties separated several years ago, the children have lived with their mother in the former matrimonial home and with their father in rented premises.

6. There is a consensus too that failing the wife being able to arrange the refinancing jointly with the husband, the property shall be transferred into her name so that she can arrange the refinancing by herself.

7. There are two outstanding issues.  The first is that the husband now says that he would want to live in the home pending the final hearing.  I do not propose acceding to that.  It is very difficult for me to tell what has been going on, but what I can tell is that the wife is the one who has lived in and been responsible for the property since separation.  The husband currently pays $350 per week rent.  There has been ongoing issues about child support.  There is very little financial information before me about the husband's capacity to pay.  He estimates it will be $600 to $650 per week required to support the mortgage.  He says that he will move in with his partner and that will enable them to pay.

8. In the absence of proper financial material, and given the very turbulent financial history, I am going to permit the wife to make whatever arrangements she needs to make, as the one motivated to continue retaining this property, for the short period before the conciliation conference which I think will be in about October.  Thereafter the case could be gotten quickly ready for hearing and if not, then there can be any appropriate applications about the use of the property.  But for present purposes, I am certainly going to allow the wife to retain that use and control.

9. The other outstanding issue relates to some works that are required for a certificate of occupancy.  There is some contention as to what occurred at the last conciliation conference.  I am not convinced that I should be privy to what happened, either during or as an upshot to the conciliation conference, so I propose disregarding that, and proceeding on the basis that there is at least agreement that the works need to be done for the certificate of occupancy to be obtained.

10. I am told that the husband is a builder.  The wife submits therefore he should be the one that meets the costs of the certificate of occupancy.  As I disregard any confidential discussions or agreements, I take the view, looking at that matter afresh, that at this stage the parties should jointly meet the costs of the certificate of occupancy.  The trial Judge can consider how those costs are ultimately met.

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

Associate: 

Date:  28 July 2008