Arness & Murad (No 2)

Case [2024] FedCFamC1F 637

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Arness & Murad (No 2) [2024] FedCFamC1F 637

File number: MLC 1506 of 2020
Judgment of: MCNAB J
Date of judgment: 9 September 2024
Catchwords: FAMILY LAW – PROPERTY – Ex tempore reasons – Application by the wife for enforcement of orders made by consent – Application by the husband to set aside the orders – Allegations by the husband that there has been a miscarriage of justice by reason of duress and suppression of evidence – Application to set aside the consent orders dismissed – Orders made enforcing the consent orders.  
Legislation:

Family Law Act 1975 (Cth) s 79A

Federal Circuit and Family Court of Australia Rules 2021 (Cth)

Cases cited: Thorne v Kennedy [2017] HCA 49
Division: Division 1 First Instance
Number of paragraphs: 27
Place: Melbourne
Date of hearing: 9 September 2024
Place: Melbourne
Counsel for the Applicant: Ms Byrnes
Solicitor for the Applicant: Bowlen Dunstan and Associates
Counsel for the Respondent: Litigant in person

ORDERS

MLC 1506 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ARNESS

Applicant
AND:

MR MURADI

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

9 SEPTEMBER 2024

THE COURT ORDERS THAT:

Section 79A application

1.Orders 1 to 10 contained in the Initiating Application filed by the Respondent husband on 31 August 2023 be dismissed.

Application – Enforcement

2.By way of enforcement of the Final Orders made by this Honourable Court on 14 September 2022 (“the final property orders”), the Respondent husband, Mr Muradi, shall on or before 24 September 2024 (“the date”) pay to the Applicant wife the sum of $95,613 (“the payment”) being the sum outstanding pursuant to Order 4 and interest pursuant Order 6(c) of the final property orders.

3.If the Respondent husband fails to make the payment on or before the date then:

(a)no later than 8 October 2024 he shall vacate the property situated at and known as Q Street, Suburb S in the State of Victoria ("the Suburb S property") and thereafter not enter upon the Suburb S property; and

(b)he shall do everything in his power to assist any person occupying the Suburb S property to similarly vacate the property.

4.Pursuant to r 11.56(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), on notification by the Applicant wife or her legal representative to the chambers of Justice McNab that the payment has not been made in full by the due date and Mr Muradi has not vacated the Suburb S property by 8 October 2024 the court issues a Warrant for Possession of the Suburb S property authorising an Enforcement Officer to enter the Suburb S property and give possession of the Suburb S property to the Applicant wife or her nominated agent and such warrant is issued in the following form:

To the Marshall of the Court, to all officers of the Federal Police and to all officers of the Police Force of the…

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AGLC
Arness & Murad (No 2) [2024] FedCFamC1F 637
Case
[2024] FedCFamC1F 637
Decision Date

CaseChat Overview and Summary

In the case of Arness v Murad, the applicant wife sought enforcement of consent orders related to property division, while the respondent husband sought to set aside those orders on the grounds of duress and suppression of evidence. The court was required to determine whether the husband had demonstrated a miscarriage of justice warranting the setting aside of the consent orders and, if not, whether enforcement of the orders should proceed as requested by the wife. The court also had to consider whether costs should be awarded to the wife.

The court found that the wife had produced bank records that did not evidence the payment the husband alleged had been made from a UK bank account. The court accepted that the wife had not received the additional $10,000 as alleged and that as of the relevant date, the total sum owed was $83,465.26. The court found the wife's evidence regarding the schedule of payments received and the interest accruing on the outstanding sum to be credible. The husband's application to set aside the orders was dismissed, and the court ordered enforcement of the consent orders. The court found that the husband's application was not a strong one and that his behaviour did not warrant solicitor-client or indemnity costs. However, the court did order the husband to pay the wife's costs, considering her modest income and the voluminous material he had presented.

The court made several orders enforcing the consent orders, including requiring the husband to pay the wife $95,613 by a specified date, vacate a property if he failed to do so, and refrain from devaluing or damaging the property. The wife was authorised to sell the property and undertake necessary maintenance and repairs. The court also ordered the husband to pay the wife's costs of $15,000 within 21 days of the order.

Orders

Orders of the court

MLC 1506 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ARNESS

Applicant

AND:

MR MURADI

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

9 SEPTEMBER 2024

THE COURT ORDERS THAT:

Section 79A application

1. Orders 1 to 10 contained in the Initiating Application filed by the Respondent husband on 31 August 2023 be dismissed.

Application – Enforcement

2. By way of enforcement of the Final Orders made by this Honourable Court on 14 September 2022 (“the final property orders”), the Respondent husband, Mr Muradi, shall on or before 24 September 2024 (“the date”) pay to the Applicant wife the sum of $95,613 (“the payment”) being the sum outstanding pursuant to Order 4 and interest pursuant Order 6(c) of the final property orders.

3. If the Respondent husband fails to make the payment on or before the date then:

(a) no later than 8 October 2024 he shall vacate the property situated at and known as Q Street, Suburb S in the State of Victoria ("the Suburb S property") and thereafter not enter upon the Suburb S property; and

(b) he shall do everything in his power to assist any person occupying the Suburb S property to similarly vacate the property.

4. Pursuant to r 11.56(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), on notification by the Applicant wife or her legal representative to the chambers of Justice McNab that the payment has not been made in full by the due date and Mr Muradi has not vacated the Suburb S property by 8 October 2024 the court issues a Warrant for Possession of the Suburb S property authorising an Enforcement Officer to enter the Suburb S property and give possession of the Suburb S property to the Applicant wife or her nominated agent and such warrant is issued in the following form:

To the Marshall of the Court, to all officers of the Federal Police and to all officers of the Police Force of the State of Victoria:

Whereby by an order of this Court made at Melbourne on 9 September 2024 it was ordered by the Court that the Respondent husband, Mr Muradi, should, pay on or before 24 September 2024 the sum of $95,613 to the Applicant wife, Ms Arness, and in default of making that payment in full he shall on or before Tuesday 8 September 2024, vacate the property situated at and known as Q Street, Suburb S in the State of Victoria and whereas the Court is satisfied that the said Mr Muradi has failed to comply with such order, you are hereby directed for the purpose of giving effect to the said order at such time with such assistance as you may require, and if necessary by force, to enter the land described being the property situated at and known as Q Street, Suburb S in the State of Victoria, and cause the wife, Ms Arness to have vacant possession of it, and to cause the husband, Mr Muradi, to vacate the said land.

(a) The warrant lie in the registry until 8 October 2024 and thereafter on notice from the court to do so it be executed without further order of the Court.

5. Upon the Respondent husband and any other person vacating the Suburb S property pursuant to Order 3 or Order 4 of these orders the Respondent husband be and is hereby restrained by injunction from entering upon the Suburb S property and from causing any other person acting on his behalf or upon his instruction to enter the property for any purpose.

6. The husband be restrained by injunction from doing any act or thing which has the effect of devaluing the Suburb S property or causing damage or destruction to the property or any part of it or its surrounds or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property.

7. The Respondent husband be restrained from lodging or causing any third party to lodge on his behalf, a caveat and/or registering a mortgage against the Suburb S property.

8. Upon the Respondent husband vacating the Suburb S property pursuant to Order 3 or Order 4 herein he remove all motor vehicles, personal effects and other items belonging to him which are located on or in the Suburb S property.

9. Failing the husband's compliance with Order 8, the Applicant wife be entitled to dispose of any and all items that may belong to the Respondent husband located on the Suburb S property.

10. The Applicant wife do all acts and things and sign all documents necessary to cause the Suburb S property to be sold.

11. The Applicant wife in her capacity as trustee for the Respondent husband and in respect of the sale of the Suburb S property is entitled to do any or all of the following for the purpose of effecting the sale of the Suburb S property on her own behalf and as trustee for the Respondent husband pursuant to these orders:

(a) instruct a conveyance or lawyer of her choosing to undertake the conveyancing of the Suburb S property including signing any costs agreement and authorising any necessary disbursements for the preparation of a contract for sale;

(b) instruct a real estate agent of her choosing to conduct a sales and marketing campaign for the property and thereafter the auction or private sale of the Suburb S property at her election including signing any agency agreement or authority for any reasonable disbursement for the sales and marketing campaign, authorise the acceptance of a sale price, and authorise such other action as may be required to effect the sale of the Suburb S property;

(c) sign any request to discharge the mortgage registered over the Suburb S property and give authority to discharge the same;

(d) sign any contract for the sale of the Suburb S property;

(e) sign any Transfer of Land document for the Suburb S property in favour of the purchaser;

(f) sign any other document or do any other thing required of the parties in order to give effect to the sale of the property;

(g) authorise the payment of funds in satisfaction of the mortgage debt secured over the title to the property and any rates and charges with respect to the property upon the settlement of the sale;

(h) authorise the payment of fees and disbursements to the real estate agent and conveyancers or lawyers engaged with respect to the sale of the property;

(i) authorise the drawing of cheques for the disbursement of the proceeds of the sale of the property pursuant to Order 6 of the final property orders and Order 2 of these orders as well as any additional interest thereon to the date of the settlement of the sale pursuant to Order 6(c) of the final property orders; and

(j) do any other act or thing necessary in order to effect the sale of the Suburb S property.

12. Upon the Applicant wife taking vacant possession of the Suburb S property she is authorised to:

(a) permit any other person to occupy the property for the purposes of effecting inspections, maintenance and repairs and to ensure that the Suburb S property is secure, clean and maintained and otherwise in an appropriate condition to effect a favourable sale;

(b) undertake reasonable maintenance and rectification of the Suburb S property for the purpose of the sale of the Suburb S property including but not limited to:

(i) removing any rubbish or abandoned items; and

(ii) removing any equipment and tools left by the Respondent husband at the Suburb S property;

(c) undertake any necessary repairs to the Suburb S property for the maintenance, rectification and repair of the Suburb S property;

(d) authorise any other person to attend upon the Suburb S property for the maintenance, rectification and repair of the Suburb S property; and

(e) do any other act or thing reasonably necessary to prepare the Suburb S property for sale and to maintain it pending settlement of the sale.

13. Any payments made by the Applicant wife pursuant to Order 11 and 12 herein are to be paid to the Applicant wife from the proceeds of sale of the Suburb S property simultaneously with the fees paid at Order 6(a) of the final property orders upon the wife producing to conveyancers and the Respondent husband invoices for the works completed pursuant to Order 12 herein and providing any invoice in relation to anything paid pursuant to Order 11 herein.

14. Pursuant to Order 5 of the final orders the Applicant wife be authorised to sign all documents on behalf of the Respondent husband to transfer to her all of his right title and interest in the real property at R Street, Suburb T in the State of Victoria.

15. The wife be at liberty to apply upon short notice to have the matter re-listed before the Honourable Justice McNab in respect of the sale or implementation of these orders.

Costs

16. Within 21 days of the date of these Orders the Respondent husband pay to the Applicant wife the sum of $15,000.00, being her costs fixed by the Court.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept that the bank records that she has produced do not record payment which was allegedly forwarded from a bank account in the United Kingdom on behalf of the husband. That was the account which those monies were alleged to be deposited into, but there is no evidence of such. I accept her evidence that she has not received a further payment of $10,000 as alleged and that as of 21 April 2023, the total sum owed to her was $83,465.26. I also accept, as I said earlier, the schedule of payments received and the interest accruing on the outstanding sum as set out in Exhibit R1. In those circumstances, the Court will make the orders as proposed by the wife.CONCLUSION This is a case where an order for cost is warranted. I take into account the financial position of the wife and that she has a reasonably modest income. It is not clear what the husband’s income is, but according to the Australian Tax Office, it is significantly more than he claims it is in his various affidavits. That is a subject of considerable correspondence between the husband and the Australian Tax Office which is before the Court. I have taken into account that the husband has placed before the Court quite voluminous material, which has had to be dealt with and addressed by the solicitors for the wife. I do not think there is anything particularly noteworthy about his behaviour. It is certainly not behaviour which would put it into a class of a case which warranted solicitor-client or indemnity costs. He is a self-represented party, and he is entitled to bring an application. However, his application has been wholly unsuccessful and the proceedings which were brought by the wife in order to seek compliance with the orders were necessitated by the conduct of the husband, and in circumstances where I find that it was not a strong case he brought in relation to setting aside the orders.

Ratio Decidendi

Legal Principle Established

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