Wiltshire News

The phrase “Do all such acts and things and sign all necessary documents” is not simply superfluous legal jargon that Lawyers use to fill Court documents with.

Parties to Family Law property settlement proceedings often come to their own agreement in relation to what is to happen to the matrimonial assets and liabilities following separation. This agreement is typically formalised by way of Consent Orders filed and then made by the Court, or incorporated into a Binding Financial Agreement.

Often such an agreement will only be reached at the doorstep of the Court (when a trial is pending) or at a Mediation or other Settlement Conference.

It is extremely important the way these Orders are worded.

Orders must place a personal obligation on either or both parties to do something or sign something to make something happen.

It is not simply good enough to draft an Order to say for example that:

“The land will be sold and ...”

The Court must be able to enforce the Order, by having an obligated party against whom the Court can enforce the obligation to ensure that everything is done to comply with the Order that the land be sold.

The Order should be drafted so that it is clear to the parties and to the Court:

• Who is to do what to ensure that the land is sold;

• Who is to do what if the land is not sold;

• Who is to sign the contract;

• Who is to prepare the transfer documents;

• Who is to negotiate the sale;

• Who determines the price;

• Who engages, instructs and signs documents with the Real Estate Agent; and

• Who determines where the settlement proceeds are to be held, and what obligations are to be placed on the Trustee of the sale proceeds.

These are all matters that should be addressed, and an obligation must be placed on either one or both of the parties to the Orders to do all such acts and things and sign documents necessary to ensure that these things happen.

In a recent matter that I was involved in the Federal Magistrates Court in Brisbane, I was retained by a Wife in property settlement proceedings, who had come to me after Consent Orders had been drawn up by her former solicitor (and the Husband’s solicitor at the time) at the conclusion of a lengthy Conciliation Conference at Court in 2006.

The Wife informed me that “the pressure was on” to have Consent Orders drawn up and signed, otherwise the Wife would be up for (what she was told by her solicitor at the time to be) “the horrendous legal costs involved in proceeding to trial”.

Eventually Consent Orders were drawn up by both solicitors, and were signed by the parties and the Registrar of the Court.

The Wife instructed me that she could not understand the Orders that were drafted by her former solicitor, and numerous Applications had to be made to the Court to interpret the meaning and effect of the Orders.

When it came to trying to interpret the meaning of those Orders, Federal Magistrate Cassidy vented her frustration with the drafting of the Orders because a primary and crucial Order was, quite simply, not enforceable because of the way it was drafted.

This is an unreported decision In the Marriage of Cummings BRC4999/2009.

On 9 March 2010 at an Interim Hearing in the proceedings, Federal Magistrate Cassidy was faced with the difficulty of trying to interpret, with a viewing to enforcing, Order 11 which stated:

“That upon completion of the subdivision, the vacant land will, pursuant to these Orders, be transferred to the Husband at the election of the Husband or failing election or for whatever reason, the vacant land will be listed for sale by private treaty.”

Her Honour was simply unable to enforce the Order because it did not place an obligation on either party to do anything in relation to transferring the property to the Husband, or listing the property for sale.

Her Honour made the following comments directed at the solicitors who had drafted the original Consent Orders in 2006, which Orders had been the subject of so much ongoing litigation:

“I’m giving a lecture to some practice students today.  It’s one of the first things I’m putting in the Orders, that advice to them is draft Orders that have a positive obligation on a party.  I mean, Orders that just say, ‘upon completion that the vacant land be transferred,’ are just totally unenforceable.”

“Don’t you feel as if, you know, you should, perhaps, not be charging your client from now on with this matter.”

Her Honour also pointed out that there was no ability for her to try to cast Order 11 with a positive obligation, and that if she attempted to do that then the Registrar of the Court would not be able to sign off on anything because there is no obligation by the primary party to do anything.

The end result was that a further application had to be made to the Court (at the further considerable expense of both parties) to have the Orders re-drafted with positive obligations.

Her Honour also mentioned that she may have been able to have more success in trying to enforce Order 11, if there had been a general all encompassing Order (included in the Orders when read as a whole) which said:

“That the parties would do all such acts and things and sign all necessary documents to give effect to the terms of the Orders”.

However this Order was also absent from the Consent Orders.

I am now assisting the Wife in those proceedings with investigations relation to a negligence action against her previous solicitor who was an author and drafter of the unenforceable Orders.

The necessity to have to bring the matter back again before the Court to have fresh and enforceable Orders made has undoubtedly cost both parties considerable expense, financial hardship, delay and frustration.

Lawyers need to be very careful in the drafting of Court Orders to ensure that the Orders are capable of being enforced by the Court.

Please telephone us to arrange a free initial consultation for a review of your own Binding Financial Agreement or Consent Orders if they did not appear to cast a positive obligation on one or both parties to “do all such acts and things and sign all necessary documents” to ensure that the Orders are capable of enforcement by the Court.


Gary Mallett
Senior Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

This article should not be considered as either formal or informal legal advice.  This article should only be read as general information relating to the particular subject matter it is written about.  The information may or may not apply to the reader's particular circumstances. Wiltshire Lawyers only purport to provide legal advice to clients who have provided detailed instructions and who have formally retained our services.