Babel and Johansen

[2007] FamCA 904

FAMILY COURT OF AUSTRALIA

BABEL & JOHANSEN [2007] FamCA 904

FAMILY LAW – PROPERTY SETTLEMENT – sale by interim orders – enforcement – stay – contempt – costs

APPLICANT: MS BABEL

RESPONDENT: MR JOHANSEN

FILE NUMBER: BRF 3413 of 2006

DATE DELIVERED: 22 August 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 22 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Pope

SOLICITOR FOR THE APPLICANT: Derek & Dwyer Lawyers

COUNSEL FOR THE RESPONDENT: Respondent appears on own behalf

Orders

1. That the Husband’s stay application filed on 17 August 2007 be dismissed.

1. That a mandatory injunction issue requiring the Husband to forthwith vacate the dwelling at H, by no later than 24 August 2007 and in default of the husband so vacating the said property, that the Marshal, Deputy Marshal and all officers of the Federal Police and State and Territory Police take such action as may be required to forthwith remove the said husband from the said dwelling.

1. That a mandatory injunction issue restraining the Husband from entering or re-entering the dwellings at H and S, until the completion and finalisation of the conveyances and settlements relating to the sales of those properties.

1. That a mandatory injunction issue restraining the Husband from going within 100 metres of the dwellings at H and S, until the completion and finalisation of the conveyances and settlements relating to the sales of those properties.

1. That the General Tenancy Agreement in Form 18A entered into between the Husband as Lessor and Mr P as Tenant dated 28 February 2007 be set aside.

1. That the Registrar of the Family Court of Australia forthwith execute a Notice to Quit to Mr P in accordance with Annexure “A” to the Wife’s Application in a Case filed 31 July 2007.

1. That the Husband pay to the Wife all costs necessarily incurred, including legal fees and outlays so necessitated by the Wife’s solicitors to prepare the Withdrawal of Caveat forms, to draw and engross the Withdrawal of Caveat forms and to attend upon the Registrar to execute same and all costs necessarily incurred to lodge same at Brisbane Titles Registration at the Department of Natural Resources and Water.

1. That Derek & Dwyer Lawyers, the solicitors appointed by the Court by Order of 3 August 2007 to proceed with the conveyances of the properties at H and S, be at liberty to secure settlement of any such contracts for sale forthwith.

1. That the Husband pay the Wife’s costs of and incidental to the Wife’s Application in a Case filed on 22 August 2007 and the Husband’s Application in a Case filed on 17 August 2007 on an indemnity basis.

1. That the Husband pay the Wife’s costs of and incidental to the Wife’s Application in a Case filed on 31 July 2007.

IT IS DIRECTED

1. That a transcript of today’s proceedings be prepared and provided to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Babel & Johansen.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3413 of 2006

MS BABEL

Applicant

And

MR JOHANSEN

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. I need to deal with the husband's application for a stay filed on 17 August 2007 and the Application in a Case filed by leave today by the wife.  The wife has also placed before the Court an application for contempt through her counsel, with the acknowledgment that that serious matter should not be heard and determined today and that matter will, as I see it, need to be the subject of filing and an allocation of appropriate dates when the husband has had ample opportunity to consider his position. 

2. However, the matters raised by the husband in his application filed on 17 August 2007, and the wife by her application filed by leave today, need to be determined forthwith, having regard to the history of the matter and the circumstances of the parties.  In essence, those applications relate to occupation and/or control over the premises at H, pending settlement of a sale.

3. The husband seeks an order for a stay of the operation of the orders of 27 March 2007 and 3 August 2007, pending the hearing of an appeal.  He filed a Notice of Appeal on 17 August 2007, indicating that he would seek orders that there be a property settlement made by the Court before any sale of assets, that he be allowed to occupy the house pending the property settlement and applications for costs. 

4. In his grounds of appeal, he says that the orders made on 27 March were made without a fair hearing and that both properties were sold without consideration of fairness and, finally, that the solicitors for the wife are dishonest, untrustworthy, deceitful and immoral and cannot be trusted to handle the sale of the properties. 

5. The background of the matter is that the parties have been litigating for some time and in negotiation, I gather, since some time in 2006.  The wife filed proceedings for interim orders, including orders for sale of the property, which were heard on 27 March 2007.  The Court being satisfied at that time that the husband had notice of the proceedings, the husband choosing not to appear at the proceedings on 27 March and having regard to the material filed by the wife, made orders for the interim sale of the properties at H and S and made further orders authorising the Registrar to sign documents if the parties failed or refused to do so.

6. There was a further order which provided that the wife should be entitled to the sole use and occupation of the property at H from the date of listing to the date of settlement. 

7. It is to be noted that the husband did not appeal against those orders within the times prescribed or at all and, of course, being interlocutory orders, he has not sought leave to appeal. 

8. On 31 July 2007, the wife filed an application to enforce the operation of the orders made on 27 March 2007, and on 3 August 2007 the husband filed a cross-application to have those earlier orders set aside.

9. In the material filed by the wife in support of her application on 31 July 2007, the wife satisfied the Court that she had made every endeavour to take all of the steps necessary to secure the sale of the properties in accordance with the machinery provisions of the orders made on 27 March 2007.  She further satisfied the Court that, by a course of conduct or inaction, the husband refused, failed or deliberately frustrated that process from time to time in ways designed to prevent the wife from being able to take the number of machinery steps designated in the orders of 27 March. 

10. In his response and submissions, the husband sought to rely on any machinery irregularities caused by his non-compliance or conduct as a basis for his application to set aside those original orders.

11. In any event, I heard that application on 3 August 2007.  I dismissed the husband's application to set aside the earlier orders and, pursuant to applications by the wife, I made further orders designed to further facilitate the sale and settlement of the two properties in question, including a further order that the Registrar be authorised to execute certain documents.

12. The H property is sold.  It is the subject of a binding legal contract to sell to identified bona fide purchasers and the settlement is due, I gather, either towards the end of this month or early September, at which time, of course, the purchaser is entitled to take possession and the vendors are required to provide vacant possession.

13. Notwithstanding that contract and notwithstanding the orders of 27 March 2007, notwithstanding the outcome and orders made on 3 August, on the weekend of 18 and 19 August 2007, having induced the wife to temporarily vacate the home by falsely representing in writing to the solicitors on the record for the wife that he intended to utilise that weekend for the purposes of removing his remaining possessions, the husband, in fact, deceptively returned to the home, moved in his possessions and took up occupation of the home.  He changed the security code and changed the locks and, therefore, purported to exclude the wife from the home, notwithstanding the orders which authorised her to continue to have sole use and occupation.  He acknowledges he is in occupation and it is clear that what he has done is in direct contravention of the Court orders made on 27 March 2007 and entirely inconsistent with the success of the wife in her applications on 3 August and entirely inconsistent with the dismissal of the husband's applications.

14. The husband's continued occupation of the home jeopardises the legal right of the proper purchasers of that property to take occupation and, as I say, until settlement, the wife is entitled, as between these parties, to sole use and occupation rights and, therefore, the control of the property until such time as it passes into the hands of the third parties.

15. Given the fact that the husband has not sought leave to appeal against the decisions of 27 March, given the time that transpired since the making of those orders before the filing of any appeal or any stay application, given the rights of third parties and given my view that there are some fundamental difficulties and flaws in the husband's Notice of Appeal, I do not propose to stay the operation of any of the Court orders made on 27 March 2007 or 3 August 2007 pending appeal.

16. The husband has demonstrated by his deceptive conduct on 18 and 19 August, and his willingness to directly contravene orders, that, sadly, it will be necessary to provide the wife with further means of securing his removal from the H property by the Marshal or Federal Police, and I propose to make orders in terms of paras 1, 2 and 3.

17. I have, from time to time, made reference to the husband's contravention of the Court orders.  As I say, there is pending before the Court a contempt application.  In my view, the husband needs to be aware that he has placed himself at great jeopardy and his asserted need to have the property at H for accommodation may well be overridden by the fact that he may not need any private accommodation for a very long time in light of his decisions of 18 and 19 August.  The last thing one would want to see is the husband spending an extended period in gaol.  I trust that it will not be necessary to have the Marshal or the Federal Police forcibly remove him, but having made the findings and observations I have made, I think it would be inappropriate that I hear and determine the contempt application.  It was necessary for me to have regard to those matters to hear and determine the applications in the case of both the husband and wife.

18. I have expressed a view about the husband's contravention which clearly has the effect of declaring that, as far as I am concerned, the husband is in contempt of Court.  Obviously, I have done that without allowing the husband the opportunity to be heard afresh on the contempt component of this case, so it would be entirely inappropriate for me to hear that contempt application.  The matter will have to be referred to another Judge who will hear the matter afresh and view the papers afresh and hear the husband's case on that issue in its entirety but, as I say, in the meantime, I propose to make those orders. 

19. The wife also makes application for an order for costs on an indemnity basis.  The husband has been entirely unsuccessful in his stay application.  The wife has been entirely successful in her further enforcement proceedings.  These are further enforcement proceedings following earlier enforcement proceedings following dated orders and, in that sense, these represent extraordinary proceedings.  Whilst, in the ordinary course, the overriding principle which governs these matters is that each party should bear their own costs, it is quite clear that the Court takes a different view to the standard approach when parties are unnecessarily required to continually litigate to secure the fruits of earlier proper applications and to support, indeed, the orders and authority of this Court.

20. The wife was before the Court as recently as 3 August yet again seeking compliance and enforcement, and less than three weeks later she is back before the Court and again seeking relief.  On this occasion, it is precipitated by the deceptive conduct of the husband, which was in direct contravention of the orders of 27 March and 3 August, and obviously in contravention of the spirit of those orders and entirely inconsistent with the outcomes ordered by this Court.

21. It would be entirely inappropriate if the wife were left out of pocket at all as a consequence of this entirely inappropriate and unnecessary exercise, and in those circumstances, having regard to the fact that, at the end of the day, there is significant property available to meet any order for costs, I further order that the respondent husband pay the wife's costs and that he do so, having regard to my reasons in the principal judgment, on an indemnity basis, that is, costs of and incidental to the application filed on 27 August 2007 and the husband's Application in a Case filed on 17 August 2007.

    RECORDED  :  NOT TRANSCRIBED

22. Again, it is essential to give proper effect to earlier orders made by this Court that the property at S be capable of being passed to a purchaser and capable of providing a purchaser vacant possession.  It is alleged that, in circumstances of ignorance of litigation, the husband purported to execute a lease to a tenant without the wife's knowledge or consent and without her execution of that lease.  Earlier, the husband had said in Court that the parties had been in negotiations for property settlement throughout 2006.  He was, therefore, well aware of the wife's claims for an interest in these properties.  It is unnecessary for me to find whether the husband was aware of any pending application before the Court at that time.  To execute as joint tenant his own individual tenancy agreement without the wife's knowledge and consent in the context of any litigation and/or negotiations in relation to property settlement speaks for itself.

23. The husband continually asserts that he has at all times been honest and upfront and that it is the wife, and perhaps even more so, her solicitors, who have been continually dishonest.  The material I have read, including material filed by the husband and material filed by and on behalf of the wife, certainly does not support that proposition.

24. The tenancy should be set aside.  I am of the view that, indeed, it has been designed to frustrate the wife's application and the process before the Court.

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

25. As to the costs of and incidental to the proceedings filed on 31 July 2007, I am satisfied that they are by way of enforcement proceedings necessitated by the husband's default.  In terms of ordering those costs on an indemnity basis, I reserve costs ordered on that basis for the types of situations I have identified in relation to the applications of today's date by the wife and the husband's application for a stay which, on the view that I took of that case, included conduct which was contemptuous of the wife's rights and contemptuous of the authority of the Court.

26. In relation to this earlier application, in the absence of being able to make such strident observations, and having regard to the fact that, albeit as a result of the husband's non-compliance, there were aspects of enforcement which were complicated as a result of machinery provisions being necessarily modified to accommodate the new set of circumstances, I fall just short of being persuaded that I should order costs on an indemnity basis.  However, having fallen just short of that point, I do otherwise order that the husband pay the wife's costs of and incidental to the application filed on 31 July 2007.

    RECORDED  :  NOT TRANSCRIBED

27. One of the orders I made today was an order authorising the Marshal to forthwith have the husband removed from the H property.  It is clear that, until such time as settlement, the only person who has a right to occupy that home is the wife.  It is quite clear from her material that she is in the process of preparing that property so that she may be in a position to give vacant possession to the purchasers.  The husband has previously, and will again, be required to make his own arrangements for accommodation consistent with the orders of 27 March 2007.  It is in the interests of the parties, if they are in a position to each vacate that property, that they receive the proceeds of sale and have those proceeds invested and earning income for them, the sooner the better.  In those circumstances, I can see absolutely no reason whatsoever why the solicitors charged with the conduct of the conveyances should not be at liberty to complete the sale transactions, the subject of contracts, at any time from this day on, and I do so order.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: