Arness & Murad (No 2)
[2024] FedCFamC1F 637
•9 September 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arness & Murad has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCNAB J
BACKGROUND
I have before me for consideration two applications. First, the wife filed an application for enforcement on 20 April 2023. The orders that were sought to be enforced were orders made between the parties by consent at a conciliation conference, which was conducted on 14 September 2022. The orders provided, inter alia, that:
(1)The husband pay to the wife the sum of $232,500 within 180 days of the date (“the due date”); and
(2)The husband do all acts and things and sign such documents as may be required to transfer to the wife at her expense all of his interests in real property at R Street, Suburb T, and that the wife procure a discharge of the mortgage over the real property and indemnify the husband against all rates, taxes and outgoings and that the wife, upon the payment of the sum of $232,500, would return Motor Vehicle 1 to the husband.
The orders provided that, if the payment was not made by the due date, then a property at Q Street, Suburb S, would be sold forthwith, out of court, and the proceeds of sale would be applied to pay for the cost of the sale, to discharge a mortgage or encumbrance affecting the real property and then to pay the amount outstanding to the wife together with interest at the rate prescribed by the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”). The balance of the monies were to be paid to the husband.
Second, I note that under the terms of those orders, a notation to the orders provided:
C. The Respondent in these proceedings:
a.Is unrepresented;
b.Has confirmed he is aware of his right to obtain independent legal advice in relation to the final property agreement reached today and its implications; and
c.Acknowledges the Judicial Registrar recommended he seek independent legal advice prior to the execution of any Minute of Consent Orders however requested the final Orders be made this day.
D.By execution of the Minute of Consent Orders both the Applicant and the Respondent consented to the Orders being made in these terms and have either received independent legal advice or are aware of their right to obtain such advice concerning their rights and obligations arising out of the paragraphs of this Order and generally under the Family Law Act 1975.
The husband then brought an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside the orders. In substance, the husband alleges that he was subject to coercion and duress in entering into the agreement, he has issues with the conduct of Mr Dunstan, who was the solicitor for the wife and attended the conciliation conference, in relation to whether or not Mr Dunstan had received emails. The husband further alleges that at the conciliation conference a document was provided at 8:45am, 15 minutes prior to the conciliation conference starting, and that he did not have adequate time to read over the document and that he was subject to a great deal of anxiety and that he was put under undue pressure.
The evidence does not support a finding that he was short-served with the conciliation documents and, in fact, the document was provided to him the night before, but he says that he does not read his emails due to a health condition, which, as noted above, involves anxiety. He also says that he has various issues in relation to the contents of the conciliation conference document which was provided by Mr Dunstan. The document referred to an assessment made by the Child Support Agency which indicated that for the 2021 financial year, the husband had a taxable income of $212,614. The husband says that he had no such method of earning such a robust income.
He also raises that he was misled in relation to the statement:
“In [late] 2019, the wife sold the [Suburb O] property to assist her in meeting her expenses. The deposit and net proceeds received at settlement totaled $294,723.00 were deposited into her mother’s bank account”.
[Ms Arness] sold this property without consent of husband and [Ms Arness] did it after Separation. I was never informed of such financial movements. I assert this conduct was completed to manipulate the settlement proceeding, minimise this income from Services Australia/ATO. [Ms Arness] placed that money of $294,723 into her mother’s account.
The husband asserts that he was coerced into the property settlement by comments made by the wife’s father prior to the conference. He says that he has had various mental health issues of reasonably long standing, which affected his capacity to deal with the stress at the conference and that he tested positive for Covid-19 in June 2022. He also submits that there is an issue in relation to the wife retaining certain property, most particularly several pieces of jewellery and Motor Vehicle 2. The issue regarding Motor Vehicle 2 arose, as I understand it, post the conciliation conference in September 2022.
RELEVANT LAW
The jurisdiction to set aside orders is dealt with in s 79A of the Act. Section 79A provides:
1.Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
a.there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
b.in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
c.a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
d.in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
e.a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Principally, the applicant relies on a ground that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, including a failure to disclose relevant information and an assertion that there has been a change of circumstances since the making of the orders, in particular, regarding his health.
FINDINGS
Section 79A Application
In relation to the ground that he was coerced into making this agreement, I do not accept that was the case. The evidence does not support a finding that there was coercion or any apparent lack of capacity for the husband to reach an agreement or that any lack of capacity was somehow taken advantage of by the wife. There was no medical evidence provided to the Court which would support a finding that, as of 14 September 2022, the husband lacked capacity, nor is there any evidence that it was apparent to the wife and her legal representatives that he lacked capacity and they took advantage of such.
The claim of non-disclosure, in particular, a non-disclosure by the wife of the proceeds of the sale of a property, is similarly not made out. The husband himself set out at [22] of his affidavit, that on 30 January 2020, he wrote to the wife's solicitors to settle the matter, putting an offer in these terms:
Dear Madam,
Given we agree on the current asst pool of $2,537,142. My offer to settle with your client is on the following basis:
Your client retains the following:
•[Motor Vehicle 1]
•Property at [R Street, Suburb T] Vic and all encumbrances
•$294,000 from sale of [Suburb O] property
•Further I agree to transfer to your client with all encumbrances the property at [M Street, Suburb J] VIC.
This offer represents 62% of the current total asset pool.
It is notable that the reference to the $294,000 for the sale of the Suburb O property is a reference to the property that he asserts was somehow withheld or not properly dealt with at the conciliation conference, referring to [5][d] of the husband's affidavit. He was aware that the property had been sold and was aware of what had happened to the proceeds of sale and, with that in mind, he made an offer to settle.
I also note that the offer that he made to settle was, prima facie, significantly more advantageous to the wife than the offer that she subsequently accepted and I accept the submission made by counsel that the agreement the wife made on 14 September 2022 delivered to her 55 per cent of the assets, whereas the husband's offer, on his calculations, amounted to 62 per cent. In these circumstances, it appears that the settlement he reached on 14 September 2022 was significantly more advantageous to him than the offer that was subsequently accepted and the terms of settlement that were entered into and reflected in the orders of 14 September 2022.
To summarise, I find that there has been no miscarriage of justice on the grounds outlined by the husband, whether by reason of fraud, duress or suppression of evidence. In relation to the notion of duress, I accept that most people who are engaged in this type of litigation will be feeling anxious and stressed, but duress is, as is described in the legislation, something far more than that and the husband does not descend into any evidence that would support a finding that there has been duress such as to vitiate his consent or the orders. There has been no exertion of pressure by “threatened or actual unlawful conduct”. See: Thorne v Kennedy [2017] HCA 49 at [70] per Nettle J.
Furthermore, I do not find that there has been any material withholding of evidence. The issue regarding the return of property is something that could have been agitated by the husband, but he did not as of 14 September 2022. In particular, the return of jewellery which he asserts has been retained by the wife. It is notable that in his affidavit at [13], the husband says regarding the financial settlement and the orders made on 14 September 2022 that:
I was encouraged by my then Partner to settle on this matter so we can move on with our life’s. My then partner offered him $50,000 from her money to pay off [Ms Arness]. But once she heard (False) allegations made against me by [Ms Arness] on 5th DEC 2022 hearing she decided to part ways.
By way of his application, the husband had sought a specific set of orders in his application but did not press that. The husband did submit that he was seeking orders for Motor Vehicle 1 to be returned to him and that he would no longer owe the wife money and she would not owe him any money. Subsequently, he suggested that the matter could be dealt with on the basis that she returned Motor Vehicle 1 to him and he paid her $30,000.
On the basis of the evidence filed on behalf of the husband, I am not persuaded that it is in the interests of justice to set aside the orders made on 14 September 2022 and I dismiss the husband’s application brought pursuant to s 79A of the Act. It then comes to a question as to the orders sought by the wife by way of enforcement.
Enforcement Application
The wife seeks orders for the orders of 14 September 2022 to be enforced by way of the respondent husband paying her on or before 24 September 2024 the sum of $95,613. The husband accepted that it was an amount that was payable by him in the event the Court did not set aside the orders and that he accepted the calculation of interest, which is set out in Exhibit R1, and I accept that the document is an accurate statement of the interest payable pursuant to Order 6(c) of the orders of 14 September 2022.
The wife then seeks orders that if the husband fails to make the payment on the due date, then the property at Q Street, Suburb S, be sold, but subject to the husband vacating that property by 8 October 2024 and that, if the payment has not been made in full, and is not vacated by 8 October, then a warrant of possession be issued upon an application being made without notice to the husband which is a permissible order pursuant to the Rules.
The issue, which was the subject of some discussion, was whether an order should be made for the sale of the Suburb S property in the event of default or a sale of a property in Suburb J. The husband gave evidence that the mortgage on the property at Suburb J was about $223,983, but the property was worth about $360,000 and that was a property that was subject to a lease agreement which was terminated.
The husband had urged the Court that if any property was to be sold that it should not be the Suburb S property. He submitted that with his mental health concerns he is not able to live in a confined space and that the Suburb S property gives him the opportunity to live in a reasonably open space, tend to a garden and it is a place that he hopes to enjoy at some point with his children, where there is space to set up facilities for them if they were to visit. There was no evidence referred to by the husband to support this submission.
The difficulty with the submissions made by the husband is that the wife is not the only creditor. The Australian Tax Office is a creditor to the extent of about $158,000 arising from tax debts. There is also a significant debt arising from the non-payment of child support, so the agency would also be interested as a creditor and it may well be that, on the figures provided to the Court, there would be insufficient funds to pay the wife, the Australian Tax Office and child support arrears from the sale of the Suburb J property. In these circumstances, it is appropriate that the Suburb S property be sold if the husband defaults in payment under these orders.
There is also a restraint sought in relation to the husband lodging any caveat or registering a mortgage against the Suburb S property. There are usual orders in relation to the husband removing items of personal property from the Suburb S property when he vacates. In my view, those orders are machinery orders to give effect to the sale as outlined and are appropriate and necessary in the circumstances.
As to the sum owing, I accept the wife's evidence that she has not received all the payments alleged to have been made by the husband.
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.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 19 September 2024
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