ARCHER & ARCHER

[2011] FamCA 719

FAMILY COURT OF AUSTRALIA

ARCHER & ARCHER [2011] FamCA 719

FAMILY LAW – PROPERTY AND PROCEDURE - Matter listed ex parte – Husband in Lebanon and not represented at hearing – Previous order of Registrar dispensing with service – Satisfied as to the actions of the wife’s solicitor in compliance with court order and their endeavours to serve husband – Sale of former matrimonial home and application of the proceeds of sale – Order to Registrar to sign documents in the name of the husband – Liberty to apply

Family Law Act 1975 (Cth)

APPLICANT: Ms Archer

RESPONDENT: Mr Archer

FILE NUMBER: MLC 3773 of 2011

DATE DELIVERED: 5 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 5 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lovering

SOLICITOR FOR THE APPLICANT: Wainwright Ryan & Eid

COUNSEL FOR THE RESPONDENT: Ex Parte No Appearance

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED

1. THAT the former matrimonial home at … S Street, Suburb C (“Suburb C”) in the State of Victoria be forthwith sold altogether out of court and with the wife to have sole conduct of the sale subject to the reserve price being the current market price and the property being sold on an unconditional contract for sale.

2. THAT the proceeds of sale of Suburb C are to be applied:

   (a)first in payment of all costs, commission and expenses of and related to the sale;

   (b)secondly to discharge the mortgage and all interest, arrears and penalties owing thereunder to the Commonwealth Bank of Australia;

   (c)thirdly to pay to the wife’s solicitors on behalf of the wife a sum of $10,000 on behalf of the wife’s past and future legal costs and expenses of and incidental to these proceedings;

   (d)the balance of monies then remaining is to be held in an interest bearing account in the wife’s name pending further order of the Court or written agreement of the parties.

3. THAT pending completion of the sale of Suburb C the wife have the sole right of use and occupancy of the property.

4. THAT pursuant to s 106A of the Family Law Act 1975 a Registrar of this Court be appointed to execute any contract of sale, transfer or other document or instrument in the name of the husband and to do all acts and things and give all validity and operation to the sale process of Suburb C and the investment of the balance of monies pending further order of the Court.

5. THAT the wife’s Application in a Case filed 30 June 2011 be otherwise dismissed.

6. THAT the extant Initiating Application filed 5 May 2011 be otherwise referred to a Directions List before Registrar Kaur on a date to be fixed subsequent to the settlement of the sale of Suburb C.

7. THAT liberty is reserved to the husband to apply upon proper written documentation filed and served within fourteen (14) days if he then wishes to be heard on any aspect of the orders pronounced this day.

8. THAT forthwith the wife’s solicitors serve upon the husband by email address and otherwise at his last known residential address in Lebanon:

   (a)     a sealed copy of this order;
   (b)    a true copy of the extempore reasons for judgment;

   (c)a letter from the wife’s solicitors explaining in detail all of the steps undertaken or proposed to be undertaken by the wife in effecting a sale of Suburb C including the name of the selling agent, the reserve price and all other relevant details of sale.

9. THAT the wife’s solicitors be at liberty to provide a sealed copy of these orders to the Commonwelath Bank of Australia by way of notification to them of the sale of Suburb C.

10. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the wife’s solicitors together with an email copy of the order and reasons for judgment being made available by my associate to them in the form of a pdf file.

11. THAT the wife’s costs of and incidental to the hearing this day be fixed in the sum of $1,500 and those monies be paid from the sum preserved in favour of the wife from the sale of Suburb C pursuant to paragraph 2(c) hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Archer & Archer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3773 of 2011

Ms Archer

Applicant

And

Mr Archer

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me upon the application of the wife for interim orders which include dispensation of service and for the matrimonial home property at S Street, Suburb C (“Suburb C”) to be sold, pending a hearing on another occasion of a section 79 property application.  The matter was before Registrar Kaur on 18 July 2011.  At that time the wife was represented by Mr Lovering of Counsel who again appears for her this day.  There was then and there is today no appearance by or on behalf of the respondent husband.

2. On that occasion the Registrar adjourned the hearing of the wife’s interim applications to this Judicial Duty List.  She further provided for dispensation of service upon the husband on condition that the wife or her solicitors comply with the requirements of paragraph 2 of her then order.

3. I have before me two affidavits of service of a solicitor engaged by the wife, Mr Rashleigh, those affidavits being filed 30 June 2011 and 31 August 2011.  I am satisfied that all efforts have been made to effect meaningful and proper service upon the husband, both by email and by regular post to his last known address.  I am satisfied that the documents required by paragraph 2 of the order of the Registrar have been forwarded as required to the husband. 

4. The husband no longer has solicitors acting on his behalf in Melbourne.  Formerly, he had engaged the firm KPA Lawyers of Oakleigh, though by letter dated 8 August 2011 they have recently advised that they no longer act for their client and in particular have highlighted that they do not have instructions to accept service of proceedings in this Court on behalf of their former client.

5. The other interesting letter from that firm of solicitors, which was previously annexed to the affidavit of the wife’s solicitor, is dated 7 January 2011 and is exhibit “JR-01” to the affidavit of the solicitor filed 30 June 2011.  In that letter those solicitors confirmed that they then acted for the husband, that they had previously received correspondence from the wife’s previous lawyers and that they had instructions that the husband was agreeable to the sale of Suburb C, subject to certain matters being agreed upon and which primarily included the discharge of the mortgage to the Commonwealth Bank, the payment of the costs and expenses of and related to the sale and otherwise the moneys being held in an interest bearing account pending further order of the Court.

6. There has been no document submitted to the Court by or on behalf of the husband which highlighted any revocation of those previous instructions, though I clearly understand that they are not current and that the husband has elected not to be represented today or otherwise has not the time in his busy life, living in Lebanon as he does, to make the effort to be represented or to put any further instructions before the Court.  That is his choice but on all that I have read, and with the work undertaken by the wife’s solicitors, I am satisfied of compliance with the previous Court order of the Registrar and of the fact that the husband knew or should have known of these proceedings.

7. In any event, the order that I intend to make today is both a commercial and practical order which will otherwise preserve the balance of net assets within Australia subject to any further hearing in respect of those assets.  The husband and wife are the joint registered proprietors of Suburb C.  The wife’s evidence is that the property has a current market value of approximately $725,000.  The mortgage, in favour of the Commonwealth Bank, is approximately $375,000 and there has been an agreement with the Commonwealth Bank to freeze or to limit mortgage repayments to a sum manageable by the wife.

8. The wife’s affidavit discloses other properties in the husband’s name alone in Lebanon or other cash assets.  I make no finding as to the existence of or value of those assets.  I carefully restrict this extempore judgment and the interim hearing before me, in the absence of the husband, to orders which will facilitate sale of Suburb C and the discharge of immediate liabilities and thereafter preserving in an interest bearing account the balance of moneys.

9. I will provide to the wife the sole conduct of the sale of the property. That is a necessary and proper order. I will make an order pursuant to section 106A of the Family Law Act 1975, nominating a Registrar of this Court to sign documents in the name of the husband and otherwise to do all acts and things and to complete all transactions so required to effect the settlement of the sale of that Suburb C property and invest the balance of moneys outstanding after payment of the identified liabilities.

10. Pending settlement of the sale of the home, the wife may occupy Suburb C but must provide vacant possession on settlement date.  It will be a fundamental requirement that the orders that I make today and these extempore reasons are served by post upon the husband.  I will request my associate to provide to the wife’s solicitors an email form of judgment in a file that cannot be altered but which can be then served by email upon the husband at his last known email address, which I accept is that one disclosed in paragraph 2 of the order of Registrar Kaur.

11. I had explored with counsel and he had explored both with his client and the adult children of the marriage, who were present in Court supporting their mother this day, as to whether that email address remains current.  They were confident that it does and in that regard the eldest daughter, Ms M, had filed an affidavit with a bundle of annexures thereto.  I have read that affidavit and whilst it is not wholly conclusive, it does assert that the father has received emails and that he uses this particular email address on a regular basis for business.

12. If that is not the case, the onus of proof lies upon the husband to otherwise dispute and/or prove to the contrary.  They, however, are not matters that I am going to further investigate today as, on the basis of all of the inquires undertaken by or on behalf of the wife and of the level of service effected, I am satisfied that the husband does know or should know of this application and this hearing today.  I proceed on that basis.

ORDERS DELIVERED

I certify that the preceding Twelve
(12) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 5 September 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………