Auden and Auden (No. 2)

[2019] FamCA 125

FAMILY COURT OF AUSTRALIA

AUDEN & AUDEN (NO. 2) [2019] FamCA 125

FAMILY LAW – PROPERTY – Interim property

Family Law Act 1975 (Cth) s 106A

APPLICANT: Ms Auden

RESPONDENT: Mr Auden

INTERVENER: Mr B Auden

FILE NUMBER: PAC 3319 of 2017

DATE DELIVERED: 12 February 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT: No Appearance

COUNSEL FOR THE 2^ND RESPONDENT: Ms Lioumus

SOLICITOR FOR THE 2^ND RESPONDENT: Lander & Rogers

Orders

1. Orders are made with consent of the wife and second respondent and on an ex parte basis against the Respondent in accordance with the Minute of Order marked Exhibit A as attached hereto. 

1. Pursuant to Section 106A of the Family Law Act 1975 a Registrar of the Family Court of Australia is appointed to execute any instrument in the name of Mr Auden and sign all documents necessary to give validity and effect to the payment to the wife of $2,000,000 from the funds currently held in the name of Mr Auden held in the G Trust Account to be paid to an account as directed by the wife.

THE COURT NOTES

A.    The wife’s seeks cost in respect of this application which is adjourned to the final hearing.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Auden & Auden (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3319 of 2017

Ms Auden

Applicant

And

Mr Auden

Respondent

And

Mr B Auden

Second Respondent

REASONS FOR JUDGMENT

1. For the reasons that I will come to in a moment, I propose making an order under section 106A of the Family Law Act appointing the Registrar of this Court to execute the documents necessary to give effect to orders that I made on 23 January 2019, and in particular order 24, that by way of interim property settlement, the husband direct that out of the sale proceeds of a particular named property there shall be paid to the wife the sum of $2 million, described as “the interim property moneys”.

2. The very brief background to these proceedings is that the applicant wife being the applicant in these proceedings today and respondent in the substantive proceedings and her husband have been engaged in parenting and property proceedings following the breakdown of their marriage.  There have been various applications, and in particular there was an interim application, which I heard in August and October of last year, relating to the payment of $2 million for the purposes of the wife purchasing a home for herself and children, and also the payment of $100,000 to meet the various legal expenses and costs incidental to the proceedings.

3. The Second Respondent, being the husband’s father, was granted leave to join the proceedings.  He as well as the husband had opposed the orders sought by the wife and made by me on 23 January 2019. 

4. The particular order in question, (that is, requiring the husband to direct that out of the sale proceeds of the former family home $2 million be paid to the wife), was in the terms sought, which did not include a date by which the obligation was to be complied with.  There is Full Court authority to the effect that the absence of a particular date means that the order is to be complied with forthwith.[1]

   [1] See also rule 1.15 Family Law Rules 2004 (Cth).

5. The husband has not complied with that order.  The affidavit of the wife’s solicitor, upon which the wife relies indicates that there have been attempts by the solicitor to communicate with the husband in order to have him give the required direction to enable the funds to be released in accordance with the order. 

6. The husband has effectively made himself scarce.  He has not appeared today, even though he has been notified by the Court and, as I understand it, by the wife’s solicitor about today’s Court event.  He has not instructed any lawyer to appear on his behalf, even though at previous times he has engaged lawyers to appear on his behalf who have withdrawn some time ago.  I understand that the wife is reliably informed that the husband is in Africa. 

7. Of note, the husband, who has the obligation under the order has not appealed against the order. There is no explanation before the Court as to why he did not comply with the obligation under the order immediately upon the making of the orders. Those circumstances, in my view, quite clearly enliven the exercise of my discretion under section 106A.

8. However, the Second Respondent in the proceedings, that is, the husband’s father, has lodged documents with the Appeal Registry yesterday in relation to the judgment delivered on 23 January.  In my view and it appears to have been conceded by counsel appearing on his behalf those documents lodged ought to have been an application for leave to appeal, though they do not, on their face of it, seek leave.  

9. Certainly we are a long way from dealing with a properly brought application for leave to appeal having been filed and an application for a stay being filed with this Court. 

10. These proceedings today should not be treated as a de facto stay application in respect of a matter which was requires leave for an appeal and that leave has not yet been sought.  To do that would be to elevate these proceedings to something that they are not.  It may be that the Second Respondent is granted leave to appeal.  It may be that at some time in the future he is successful in that appeal.  But that is a matter of mere speculation at this stage. 

11. I cannot see that there would be any prejudice to the Second Respondent if the s106A order is made. His case, which is dealt with in the judgment delivered on 23 January 2019, is in reality, no more than that he was a creditor of a party or the parties. There are ways in which he can enforce that debt and he is not thwarted in any way by the making of this order.

12. The 23 January 2019 orders created a clear and unambiguous obligation upon the husband to do certain things immediately, which he has not done, against which he has not appealed and for which he has offered no explanation.

13. The entire tenor of the 23 January 2019 judgment was to place the wife in the position of having funds available to purchase a property.  There is no evidence before me that that’s about to happen immediately or in a matter of days.  That does not mean that as was put to me that this is a reason that there is no urgency to deal with this application.  There is likewise no reason not to deal with this application, bearing in mind that the effect of an order to do something without a timeframe set out is that that should be complied with forthwith.  So in these circumstances, I make the orders sought by the applicant.  Now, I will come to the terms of that order in a moment. 

14. The applicant wife had also sought the Second Respondent’s consent to an order to enforce another of the orders made on 23 January, being order 29, that the husband do all acts and things to cause each of the parties to receive $100,000 from the sale proceeds, to meet their respective expenses and legal costs of and incidental to the proceedings. The Second Respondent has not appealed against or sought leave to appeal against that order and consents to a section 106A order being made appointing the Registrar to exercise the necessary powers with respect to it.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 February 2019.

Associate: 

Date:  15 February 2019