Bele & Vaughan (No 2)

[2012] FamCA 841

FAMILY COURT OF AUSTRALIA

BELE & VAUGHAN (NO. 2) [2012] FamCA 841

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Case objecting to jurisdiction, enforcement of previous orders, signed Contract of Sale not the same and seeking a stay due to concurrent litigation – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bele

RESPONDENT: Mr Vaughan

FILE NUMBER: MLC 9056 of 2009

DATE DELIVERED: 4 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 11 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person by telephone

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Harriss 

SOLICITOR FOR THE RESPONDENT: Mills Oakley

IT IS ORDERED THAT

1. Paragraphs 2, 4, 5, 6, 11, 12 and 15 of the Application in a Case filed 20 July 2012 be and are hereby dismissed.

2. The parties file and serve any application for costs by 4.00pm on 1 November 2012.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bele & Vaughan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9056  of 2009

Ms Bele

Applicant

And

Mr Vaughan

Respondent

REASONS FOR JUDGMENT 

1. This matter has a long and somewhat complicated procedural history which is relevant for the purposes of the application listed before me today. That history is set out in detail in Strickland J’s judgment of 21 August 2012. In summary that history is as follows:

   ·    The applicant, Ms Bele, and the respondent, Mr Vaughan, lived together in a de facto relationship.

   ·    On 9 June 2011 after a contested hearing Cronin J made a declaration pursuant to s90RD  and s4AA of the Family Law Act 1975 (Cth) as to the date upon which that relationship ended. Both Ms Bele and the respondent were represented by Counsel at the hearing.

   ·    Ms Bele filed a Notice of Appeal on 7 July 2011.

   ·    In December 2011 that appeal was deemed to be abandoned when Ms Bele failed to comply with directions with respect to the filing of the Appeal Books.

   ·    Le Poer Trench J made final property orders by consent on 13 December 2011. Both Mr Vaughan, who was the applicant in the proceedings before His Honour and the respondent, Ms Bele, were again represented by Counsel. The final orders included an order which goes to the heart of Ms Bele’s complaints before the Court today, that Ms Bele  “... sign all documents and do all things necessary to transfer to the Applicant on trust for sale and to thereafter sell the real property at [No 9] by public auction by [C] Real Estate Agents no earlier than 15 March 2012...”. The order further provided that the net proceeds of sale are to be divided as to 46.75 per cent to Mr Vaghan, with the balance to Ms Bele and Ms Bele was further ordered to pay $100,000 from her share to Mr Vaughan. Ms Bele was also given an opportunity to purchase Mr Vaughan’s interest in the property, which she did not avail herself of. 

   ·    In March 2012, a matter of days before the auction of the No 9 property in accordance with the orders, Ms Bele filed an Initiating Application in which she objected to the Court’s jurisdiction with respect to the orders of 13 December 2011 and, on an interim basis, sought a stay of those orders and an order prohibiting the sale of No 9 pending the determination of her objection to jurisdiction. The primary basis of her objection to jurisdiction being that the provisions of the Family Law Act 1975 (Cth) relating to de facto property matters had not received Royal Assent and therefore had no legal force or effect.

   ·    Ms Bele also filed an Application in a Case in which she sought a return to the status quo as it was prior to 9 June 2011 when Cronin J made his orders as to the existence of a de facto relationship and directions for the hearing of her objection to jurisdiction.

   ·    On 26 March 2012 Cronin J noted that Ms Bele had withdrawn her Initiating Application and dismissed her Application in a Case.

   ·    On 4 May 2012, following the sale of the property, Ms Bele attempted to file a Notice of Appeal against the orders of Cronin J on 9 June 2011 and the orders of Le Poer Trench J on 13 December 2011. The Notice of Appeal was out of time and was not accepted for filing by the Regional Appeals Registrar.

   ·    On 13 June 2012 Ms Bele filed an Application in an Appeal seeking an order permitting her to file the Notice of Appeal rejected by the Regional Appeals Registrar and, in the alternative, an order reinstating her Appeal, deemed abandoned, against the orders of Cronin J of the 9 June 2011 and an order extending the time for filing an Appeal against Le Poer Trench J’s orders of 13 December 2011. On 21 August 2012 Strickland J dismissed that application.

2. Ms Bele has refused to sign the documents required to give effect to the orders for the sale of the No 9 property and a Registrar has been required to sign those documents on her behalf. She also refused to produce the Duplicate Certificate of Title for the property as a result of which, on 12 June 2012, in anticipation of settlement of the sale on 2 July 2012, Mr Vaughan filed an Application in a Case seeking production of the duplicate certificate of Title. On 25 June 2012 Cronin J made orders for the production of the Duplicate Certificate.

3. On 6 July 2012 Ms Bele filed a Notice of Appeal against the orders made by Cronin J on 25 June 2012. On 8 August 2012 that appeal was deemed abandoned.

4. Ms Bele did not comply with the orders of Cronin J for the production of the Duplicate Certificate of Title as a result of which, on 18 July 2012, Mr Vaughan filed an Application in a Case seeking sole use of the No 9 property and restraining Ms Bele from being within 100 metres of the property, and orders directed to the Registrar of Titles in relation to the cancellation of the existing title and folio and the creation of a new title and folio and directing delivery of the new Certificate of Title to Mr Vaughan’s solicitors.

5. That application was heard by Cronin J on 23 July 2012. On 20 July 2012, prior to the commencement of the hearing, which was expedited, Cronin J gave Ms Bele, who was the respondent in that application, leave to file her Application in a Case.

6. On 23 July 2012 Cronin J made orders to facilitate settlement of the sale of No 9 including orders that the Registrar of Titles cancel the existing Folio of the Register and create a new folio for the property. He further ordered that the Certificate of Title so created was to be delivered to Mr Vaughan’s solicitors and held in trust pending settlement of the sale of the property. Cronin J also ordered that Ms Bele pay Mr Vaughan’s costs and that those costs be satisfied from the respondent’s entitlements.

7. Cronin J also dismissed paragraphs 1, 3, 7, 8, 9, 10, 13, 14, 16 and 18 of Ms Bele’s Application in a Case and adjourned the balance of her application to the Judicial Duty List. It is those matters which are before me today.  

8. Having read Ms Bele’s application and affidavit I had some difficulty understanding, in the context of the history of this case, what relief it was that she was seeking, however with some prompting from me Ms Bele identified the following issues:

   ·    That the Court has not dealt with her objection to jurisdiction with respect to the orders made by Cronin J on 9 June 2011 and the orders of Le Poer Trench J made 13 December 2011;

   ·    That the husband and/or his solicitors have not complied with the orders made by Le Poer Trench J in that the No 9 property was not transferred to the husband for sale;

   ·    That the date shown on the Contract of Sale of the No 9 property signed by Registrar Mestrovic was 20 March 2012 but that it was not until 21 March 2012 that the husband’s solicitor, Mr Harriss, swore and filed his affidavit in support of his request that the Registrar sign the Contract annexing an unsigned copy of that Contract, it being her case that the contracts were not the same; and

   ·    That there is concurrent litigation on foot in Europe with respect to the No 9 property.

9. During the course of the hearing Ms Bele again sought leave for Mr A to appear on her behalf. I note that Ms Bele appeared with leave by telephone from city X in Europe whereas Mr A was present in Court. On 19 July 2012 Ms Bele made an oral application seeking leave for Mr A to represent her on the hearing of her Application in an Appeal or to assist her as a McKenzie Friend. Strickland J, having heard submissions by both Ms Bele and Mr Harriss on behalf of the respondent, dismissed that application. Ms Bele also made an application to Cronin J on 23 July 2012 that Mr A be permitted to represent her but withdrew that application in the course of the hearing on the basis that Mr A could not be both her witness and represent her. Notwithstanding that the application was withdrawn, Cronin J again pointed out that it would be most unusual for a person who had himself been the subject of orders pursuant to s118 of the Act, as is the case with Mr A,  to be permitted to represent a party to proceedings. Ms Bele did not make any submission as to any reasons why it would now be necessary or appropriate for Mr A to represent her. He is not a legal practitioner and he remains himself the subject of an order pursuant to s118 of the Act. As Ms Bele was appearing by telephone from city X and Mr A was present in Court it could not even be said that he could assist as might be expected of a McKenzie Friend. In those circumstances, I did not allow Mr A to appear on her behalf.

10. There are no substantive applications on foot and there are no appeals pending. There is nothing to be stayed or any status quo to be reinstated. The property has been sold and orders have been made to enable settlement to take place.

11. In so far as Ms Bele submits that either Cronin J on 9 June 2011 or Le Poer Trench J on 13 December 2011 did not have the jurisdiction to make those orders, they have clearly made those orders on the basis that they had the jurisdiction to do so and it is not a matter for me to determine otherwise. Strickland J considered the merits of Ms Bele’s arguments with respect to jurisdiction when he determined her Application for Appeal concluding that the “flaws in those arguments are breathtaking...”. Save and except for enforcement proceedings, Ms Bele appears to have exhausted the remedies available to her.

12. Although Ms Bele has complaints about the respondent and his solicitors complying with the orders, there is no application for enforcement or contravention. Even if Ms Bele had made such an application, it would appear that nothing of substance turns on the allegations she is making. Ms Bele concedes that the intent of Le Poer Trench J’s order of 13 December 2011 was that the No 9 property would be sold, and that has taken place, notwithstanding the barriers she has attempted to put in place to prevent it. I note that Mr Harriss disputes that either he or his client have failed to comply with the orders.

13. Finally, Ms Bele submitted that there are proceedings on foot in the European country and it is her application that I should order the appointment of an expert in Dutch law in relation to the concept of “cohabitation” versus “registered partnership”. Whether there are proceedings on foot in Europe is of no consequence because there are no proceedings on foot in this Court other than the application I have before me today. No purpose would be served by making the order sought by Ms Bele in those circumstances and thus I do not propose to accede to her application. 

14. Strickland J described the conduct of Ms Bele and her advisers as “appalling” and said that her constitutional arguments were a ruse intended to prevent the sale. This application is, in my view, more of the same and has no merit. I propose to dismiss the remaining paragraphs of the application. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 4 October 2012

Associate: 

Date:  4 October 2012