C and C

[2009] FCWA 50

[2009] FCWA 50

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	C and C [2009] FCWA 50
CORAM	:	THACKRAY CJ
HEARD	:	9 APRIL 2009
DELIVERED	:	9 APRIL 2009
FILE NO/S	:	PTW 3228 of 2004
BETWEEN	:	C Applicant/Husband
AND
C Respondent/Wife
Catchwords:

FAMILY LAW - PROPERTY - Longstanding orders for sale of property - the property has not been sold - the wife's presence in the home is a serious impediment to sale - the wife's emotional state is a consideration - change in circumstances - the children of the marriage no longer live with the wife at the property - wife ordered to give up vacant possession of the property.

Legislation:

Family Law Act 1975

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

[2009] FCWA 50

Solicitors:

Applicant	:
Respondent	:

Case(s) referred to in judgment(s):

Nil

[2009] FCWA 50

1 The application before the Court today is the Form 2 application of the husband filed on 13 March 2009. In this application he seeks three things:

• First, vacant possession of the property [in the suburbs] to allow what is called in the application “an uninterrupted sale of property”;

• Second, for the respondent, Ms [C], to be found in contempt of court and made accountable for breach of orders, namely, paragraphs 9 and 10 of the orders made on 26 September 2008; and

• Third, for the Court to reverse its decision handed down on 26 September 2008 (although it was said in the application to be 26 November 2008) and to make Ms [C] responsible for the rates and taxes on the property.

2 This matter has had an extraordinarily long and unfortunate history, which

I would not even begin to attempt to recite in these reasons. The background will be apparent from the principal judgment I delivered some very long time ago and all of the various judgments on the many applications that have come before the Court since.

3 In a nutshell, orders have been in place for the sale of the [suburban] property

for a remarkably long time and the property has never been sold. Mr [C] has been appointed as the sole trustee for sale of the property as the Court had lost confidence in Ms [C]'s desire and/or ability to sell the property. On 26 September 2008, when both parties were before me, I made a set of detailed orders designed to facilitate the sale.

4 If memory serves me correctly, Mr [C] has in the past sought vacant possession

of the property; that is for Ms [C] to be required to leave. However, these applications have been made more problematic on account of what I perceive to be Ms [C]'s vulnerable emotional state and difficult financial circumstances and, just as importantly, the fact that two of the children of the parties have been living with Ms [C] and were dependent upon her for accommodation. One at least of those children was also in an exceptionally vulnerable emotional state.

5 The only evidence I have of what has occurred since 26 September 2008 is that

contained in the affidavit of Mr [C] filed on 13 March 2009, together with the oral evidence he has given today. One of the most significant things which has occurred in that period is that since 27 March 2009 the two girls have been living with Mr [C]. On the basis of the evidence he has given today it would seem there is a fairly strong possibility they will continue to live with him.

6 The second thing to note, of course, is that the property has still not been sold.

Mr [C] has given evidence of advice given to him by the appointed real estate agents that Ms [C] has once again been, if I can use the word, “difficult” in relation to the sale of the property and she has questioned the right of the agents that Mr [C] has appointed to sell the property.

7 As has been made clear on previous occasions, it is entirely Mr [C]’s decision as

to the choice of agent, he having been appointed the trustee for sale. As I indicated to Mr [C] in hearing his submissions, it is unfortunate the Court does not have the benefit of sworn evidence from the real estate agents, but there is a signed letter attached to his affidavit confirming the information that he has provided. That information is entirely consistent with the manner in which Ms [C] has conducted matters over a very

[2009] FCWA 50

long period of time according to the evidence previously provided. Mr [C] has given what I regard as an adequate explanation of why this evidence is not available on oath.

8 It is also unfortunate that since the difficulty arose in relation to the agent in

November 2008, Mr [C] has effectively done nothing up until the time of filing of the application on 13 March 2009. Again, however, he has given a good explanation for the reasons for the delay. Firstly, he says that he is busy. I can see that this litigation has obviously been very trying for him over an extended period of time and he does have a responsible position in the business in which he works. Secondly, and more importantly, he recognised the dilemma he faced in circumstances where his two children were living in the home, which made it difficult for him to pursue the remedy he is pursuing today.

9 I am informed by Mr [C] that the application I am dealing with today was served

by a process server on Ms [C] on 24 March 2009. I have made it clear to Mr [C] that although I have continued with this hearing in the absence of an affidavit of service, it will be necessary before the orders I make today are extracted for the Court to be provided, initially, with the faxed copy of the sworn affidavit of service, followed up in due course by the hard copy being filed in the Registry.

10 In other circumstances I might have adjourned the Court pending the receipt of

that affidavit of service but as this will be my last day at the Court for the next five weeks, it was necessary for me to proceed to hear the matter, prior to dealing with the next matter waiting to be heard.

11 Assuming that the affidavit of service is provided, I will be satisfied Ms [C] has

had notice of these proceedings and has chosen not to take part. In that regard, the Court has always made clear in this matter that it would be prepared to allow the parties to attend the hearing by telephone, as it knows that both parties live some distance from the Court. In fact, as a courtesy to Ms [C], an attempt was made by my staff to telephone her so that she could take part in the proceedings, but there was no answer at her usual number.

12 It is significant also that Ms [C] has apparently stopped attending court hearings

in [the Regional Centre], notwithstanding that in the past she has been very particular about attending court hearings, quite often travelling all the way to Perth, even though she was permitted to attend by telephone.

13 Turning to the merits of the three matters before the Court today, I have

indicated to Mr [C] there are rules to follow in relation to applications for contempt. He has not followed those rules. They are important because contempt proceedings are very serious and they do require the applicant to state with considerable particularity the contempt alleged.

14 There is also the question of the adequacy of the evidence provided in support of

the application for contempt. Although I am prepared today to proceed with part of the application on the basis of what is effectively second-hand evidence regarding Ms [C]'s behaviour, I could not do that on a contempt application where there would need to be formal proof of each element of the complaint.

[2009] FCWA 50

15 In any event, although I have not had it confirmed by him, I suspect Mr [C] is

not out to get Ms [C] into any more trouble, but is simply trying to resolve the long standing financial impasse which has occurred with the sale of this property. On that basis, I will dismiss paragraph 2 of the application, but in doing so I make it clear that the Court has not come to any decision as to whether or not Ms [C] is in contempt. It is simply saying that it is necessary for Mr [C] to follow the correct procedures.

16 I will turn next to paragraph 3 of the application, by which Mr [C] seeks that the

Court reverse its decision holding him responsible for some of the rates and taxes relating to the property. Once again, as I have explained to Mr [C] this morning, court orders are normally changed only by appeal; however, it is possible in circumstances such as the present, where there is an ongoing payment, for the order to be varied if there has been some change in circumstances.

17 I do not see there has yet been such a change in circumstances. It was always

the case that any contribution Mr [C] might make towards the property would give Ms [C] some encouragement to continue to stay in the property, which is the main basis for his application. I am not satisfied it is appropriate that I vary or discharge the order I made last year. Therefore paragraph 3 of the application is dismissed.

18 I turn now to what I consider to be the most significant matter, and that is

paragraph 1 of the application. I have already indicated that I recognise the state of the evidence is somewhat unsatisfactory. However, in the event the orders I propose to make today were ever to be challenged, it has to be recorded that I have been the Judicial Officer who has had responsibility for this matter over a very extended period. I therefore have other evidence which I can and do take into account in addition to that which is contained in Mr [C]'s most recent affidavit.

19 The view I have formed over this long period of time is that this property has not

been sold largely because of the lack of co-operation on the part of Ms [C]; the lack of any motivation on her part to have the property sold; and because of obstructions she has placed in the way of the sale. Ms [C]'s apparent emotional difficulties and her ongoing resentment of Mr [C] satisfy me that her ongoing presence in the property will continue to be a serious impediment to the sale and that there will be a much better prospect of this matter being resolved if she vacates the property.

20 Mr [C] has, in my view, rather generously suggested that eight weeks might be an appropriate time to allow Ms [C] to vacate. I might have been inclined to consider a little less time, but the amount of time proposed does at least allow Ms [C] the opportunity to facilitate the sale in the meantime by cooperating with Mr [C]'s agents. There would be less prejudice to her if the property can be sold relatively quickly.

21 Ms [C] has previously given evidence of the help and support she has available

to her from her family in [the Eastern States]. I would anticipate that if all else failed she would be able to obtain accommodation with them, if not with friends. As I have said, it is a significant matter that in the meantime the children have come to live with Mr [C] and hence they will not find themselves out on the street as a result of the order that I propose to make.

[2009] FCWA 50

22 When I make the order for Ms [C] to vacate the property, I intend to include a

provision for her to have liberty to apply to the Court to vary or discharge the order. It is, of course, possible that Ms [C] was on her way to court this morning in order to be heard and has had an accident or there is some other good reason why she is not here to defend what is obviously a very serious matter for her.

23 If Ms [C] has some very good excuse for not being in attendance today, I would

be prepared, upon my return to the Court next month, to hear any application she might want to make in relation to variation of these orders. I would, however, require quite heavy persuasion that it is now not appropriate for her to vacate the property.

I certify that the preceding [23] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate