ANA & ANA

[2011] FamCA 408

FAMILY COURT OF AUSTRALIA

ANA & ANA [2011] FamCA 408

FAMILY LAW – PROPERTY – order made pursuant to Section 106A of the Family Law Act 1975

Family Law Act 1975 (Cth)

APPLICANT: Ms Ana

RESPONDENT: Mr Ana

FILE NUMBER: MLC 1367 of 2008

DATE DELIVERED: 17 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 17 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Perisic & Thomas Lawyers
SOLICITOR FOR THE RESPONDENT:	N/A

IT IS ORDERED THAT

1. Pursuant to Section 106A of the Family Law Act 1975 the applicant wife be and is hereby appointed to execute any deed or instrument and do all acts and things necessary in the name and on behalf of the husband to give effect to the completion of the Contract for Sale of the property know as and situated at 105 – CC Street, AA Town in the State of Victoria being the whole of the land more particularly described as Lot … on Plan of Subdivision … being the whole of the land in Certificate of Title Volume … Folio … lodged in the Officer of Titles.

2. To remove any uncertainty with regard to paragraph 1 hereof the wife’s authority extends to the signing of any transfer and other like documentation together with any discharge of mortgage and other like documentation together with instructing the conveyancer acting on behalf of the husband therein, DD Conveyancing in the State of Victoria, as may be necessary to give effect thereto.

3. The husband pay the wife’s costs of this application fixed in the sum of $1500.

4. As soon as practicable the wife cause a sealed copy of this order together with copies of her Application in a Case and affidavit filed on 16 May 2011 to be served on the husband either personally or by such electronic means as she may be able.

5. The wife’s said application be otherwise be dismissed.

6. Liberty be reserved to the husband to apply to vary or set aside these orders within 14 days of service in accordance with paragraph 4 hereof.

7. General liberty be reserved to both parties to apply on short notice.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1367 of 2008

Ms Ana

Applicant

And

Mr Ana

Respondent

REASONS FOR JUDGMENT

1. The wife makes Application in a Case for an order pursuant to section 106A of the Family Law Act 1975 to sign all documents and do all things on behalf of the husband to give effect to a contract of sale entered into by the husband in respect of a property which is a relevant property for the purpose of proceedings between the parties for alteration of property interest pursuant to section 79 of the Act. 

2. I am satisfied on the basis of the affidavit of the wife of a number of facts:  the parties were previously married and separated; they have proceedings before the Court for alteration of property interests, and those proceedings have been before the Court for some time.  The parties previously agreed that the property which is the former matrimonial home at CC Street, AA Town, in Victoria be sold and that the proceeds of sale be invested in a joint bank account pending determination of the proceedings.  The property is registered in the sole name of the husband. With respect to the investment of the funds, an order was made to that effect on 8 April 2008.  The property was placed on the market in December 2010.  That was pursuant to an order to that effect made in November 2010.  The order provided that it would be placed on the market during March 2011 and the husband was permitted to attend the property on two weekends to allow him to clean it out for sale.

3. It appears that he did attend and take photographs of the property but did not clean it up.  A contract of sale was entered into on 21 February 2011, and a copy of that contract is exhibited and is evidence before me.  The contract provided for settlement on 21 April 2011.  As a result of the husband’s inaction, that settlement did not take place.  The wife was advised on 5 May 2011 that settlement was not going proceed because the husband was refusing to allow the settlement to occur unless he received one half of the deposit moneys, being $28,000. 

4. On the same date, the parties established the joint bank account in accordance with the order previously referred to.  I am satisfied that these proceedings should be heard on an ex parte basis.  The wife has deposed, and I accept, that the husband has re-partnered and has relocated to Country R.  She is unaware of when he will be returning to Australia, and he is not in communication with her.  She alleges that he’s already in breach of orders of the Court by selling a truck without disclosure to her and that he used the funds, she believes, to purchase a property in Country R instead of placing them into the joint account.  She has deposed that:

   He repeatedly informed me that I will “see no money” in property settlement.

5. I am satisfied that unless appropriate orders are made, it is likely that the purchasers will withdraw from the purchase.  In the property transfer transaction, the husband is represented by a conveyancer, who understandably is concerned that she does not breach her professional relationship with the husband in being seen to cooperate with the wife in any way.  However, she has advised that the conveyancer has indicated through the solicitor who has appeared on behalf of the husband today that she will abide any order of the Court. 

6. In the circumstances, in my view, it is appropriate that an order be made pursuant to section 106A of the Act empowering the wife to execute any document, including any transfer of land, in the name of the husband and to give all necessary instructions to the husband’s conveyancer to complete the contract of sale. I will order accordingly.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 17 May 2011.

Associate:

Date:  8 June 2011