Caine & Seddon
[2022] FedCFamC2F 462
Federal Circuit and Family Court of Australia
(DIVISION 2)
Caine & Seddon [2022] FedCFamC2F 462
File number(s): ADC 2127 of 2021 Judgment of: JUDGE DICKSON Date of judgment: 28 March 2022 Catchwords: FAMILY LAW – Property – interim hearing – where respondent has failed to engage in the proceedings – where applicant seeks interim order for sale of property – where mortgage is in arrears – where respondent entered into a tenancy agreement over the property without the applicant’s knowledge or consent – where Court is satisfied that respondent is on notice of these proceedings – default orders - where interim order for sale of property is granted – where injunctions are granted restraining the respondent or his agents from executing any further tenancy agreements over the said property – where matter is listed for undefended final hearing – where the applicant’s costs of and incidental to this application are reserved to final hearing Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.27, 12.06 Division: Division 2 Family Law Number of paragraphs: 19 Date of hearing: 28 March 2022 Place: Adelaide Counsel for the Applicant: Ms Ross Solicitor for the Applicant: Mildwaters Lawyers The Respondent: No appearance ORDERS
ADC 2127 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CAINE
Applicant
AND: MR SEDDON
Respondent
order made by:
JUDGE DICKSON
DATE OF ORDER:
28 MARCH 2022
BY DEFAULT THE COURT ORDERS PURSUANT TO RULE 10.27 OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021:
1.That as and by way of interim orders:
(a)the Applicant is hereby appointed as the sole agent on behalf of the Applicant and the Respondent for the sale of and shall do all acts and sign all documents necessary to list the real estate known as B Street, Town C, South Australia (“the B Street, Town C house”) for sale and for that purpose the following shall apply:-
(i)the B Street, Town C house shall be listed for sale by private treaty with H Real Estate of J Street, Town K (“the real estate agent”);
(ii)the list price of the B Street, Town C house shall be such sum as is recommended by the real estate agent as an appropriate list price;
(iii)the sale price of the B Street, Town C house shall be such amount that is at least 90% of the list price shall be accepted by the applicant as the sale price;
(iv)the parties are to co-operate in every way with the real estate agent in relation to the marketing of the properties for sale;
(v)when the B Street, Town C house is sold, then any net proceeds of sale of that property shall be paid in the following manner:-
(1)payment of all monies owing and secured by registered mortgage number … to the Commonwealth Bank of Australia over the B Street, Town C house;
(2)payment of all agent’s commission and advertising or other agent’s expenses of sale;
(3)payment of the legal and conveyancing expenses relating to the sale;
(4) payment of the following liabilities:-
Council rates owing on the B Street, Town C house;
(ii) SA Water Rates owing on the B Street, Town C house.
(5)the balance thereof to be deposited in the Trust Account of the Applicant’s solicitors, Mildwaters Lawyers.
that until the B Street, Town C house is sold and the date of settlement, the parties shall manage the matrimonial liabilities as follows:-
(i)the Respondent do all things necessary to ensure that all rental payments made by any third parties for the right to live in the B Street, Town C house are paid off of the mortgage on the B Street, Town C house;
(ii)the Respondent shall pay all mortgage payments on the B Street, Town C house as well as all rates and utilities on the B Street, Town C house;
(iii)the Applicant shall be responsible for paying her own rent and utilities and all minimum repayments required for the credit card, the Zippay and Afterpay loan and the dog fines in her name;
2.That pursuant to section 106A of the Family Law Act 1975 (Cth) that in the event that either party refuses or neglects to comply with the provisions of these orders, a Deputy or Judicial Registrar of the Federal Circuit and Family Court of Australia at Adelaide is hereby appointed to execute all deeds and documents in the name of the defaulting party and the defaulting party shall pay any costs of such default.
3.The respondent be restrained and an injunction be granted restraining the respondent and any agent acting on behalf of the respondent including but not limited to Ms L from further executing any tenancy agreement either with Ms G or any other proposed tenant for the property situated at B Street, Town C South Australia.
4.Liberty to the applicant to provide a sealed copy of the order made this day to SACAT confirming the terms of the injunctive order with respect to the said B Street, Town C property.
5.The applicant take all such steps to ensure the respondent is served personally with a sealed copy of the orders made this day.
6.In the event that the said B Street, Town C property has not sold prior to 8 July 2022 then the Court foreshadows that the Trial listing on 10 August 2022 be vacated.
7.That the applicant’s Initiating Application seeking final orders for property settlement be listed for undefended Trial before Judge Dickson on 10 August 2022 at 2:15pm NOTING half day allowed, with such trial to be conducted on a face-to-face basis in accordance with the Courts protocols.
8.The proceedings be adjourned for Trial management to 8 July 2022 at 9:30am for Trial directions and management by telephone.
9.The Applicant’s costs of and incidental of these proceedings be reserved to the final hearing.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym Caine & Seddon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE DICKSON:
INTRODUCTION
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
This matter comes before the Court this morning by way of an Initiating Application filed by the applicant on 5 May 2021. These reasons relate to the application for the sale of a property at B Street, Town C. These reasons are provided in short form given that the respondent has failed to appear at today’s hearing or engage in these proceedings in any way.
BRIEF BACKGROUND
The parties in this matter are the applicant, Ms Caine (‘the applicant’), and the respondent, Mr Seddon (‘the respondent’). The parties commenced a relationship in 2006 and separated for the final time on 27 October 2019, hence it was a relationship of some 13 years duration. There are two children of the relationship, X born in 2016 now aged about five years and Y who was born in 2015 and is now aged nearly seven years.
The Initiating Application filed by the applicant has had a difficult trajectory through the litigation pathway. For the purposes of these reasons I note the following litigation history.
The Initiating Application first came before Registrar M on 5 July 2021 when the applicant was given liberty to apply for an urgent hearing date in relation to the B Street, Town C property as the Court was advised that the bank may repossess the property due to non-payment of the mortgage. On that occasion, the proceedings were adjourned to 2 August 2021 at 9:30am for mention.
On 2 August 2021 the matter came back before Registrar M. Registrar M noted that the applicant was seeking interim orders for the sale of the parties’ property forthwith with the applicant submitting that there was a possibility that the bank would foreclose on the parties’ property as a result of outstanding mortgage repayments. The proceedings were then adjourned before Judge Cole to 19 October 2021 at 9:15am for mention.
On 19 October 2021 the matter, in fact, came before me as the theoretical new docket judge. On that occasion, concerns were raised by the Court with the applicant’s counsel as to the lack of attempts at personal service of the applicant’s Initiating Application and supporting documents personally on the respondent. The Court also sought updated information with respect to possible foreclosure proceedings and whether or not the application to sell the B Street, Town C property may impact on third party rights, noting that the B Street, Town C property was said to be tenanted. On that occasion the Court ordered during the period of the adjournment that the applicant is to take all steps to attempt personal service of the application and supporting documents on the respondent, together with a sealed order of the order made that day and liberty to relist was granted in the event of an application by way of mortgagee in possession proceedings being imminent. The matter was adjourned to 17 December 2021 before me for directions.
Regrettably on 17 December 2021 there was no appearance by or on behalf of either party at that hearing and accordingly, in the absence of any attendance, the proceedings were adjourned to 4 March 2022 for further directions. It was noted that if neither party failed to appear at the adjourned hearing, the application would be dismissed for want of Prosecution.
On 4 March 2022 Ms Ross of counsel appeared on behalf of the applicant. Ms Ross informed the Court that an affidavit of service had been filed on behalf of the applicant confirming that the respondent had been personally served as directed and a listing was sought in relation to the interim application for the sale of the B Street, Town C property. I made orders on that occasion as follows:
(a)Listing the matter for argument and the delivery of reasons to 28 March 2022, half day allowed;
(b)For the filing of updated material and further attempts at service personally on the respondent of a sealed copy of the order made that day; and
(c)For an affidavit to be filed during the period of the adjournment and a letter advising the respondent of today’s hearing and the fact that the Court would proceed to make orders in his absence should he fail to appear.
HEARING ON 28 MARCH 2022
The matter was called on this morning after I had concluded my lists at 9:30 am. At 11:00am when the matter was formally called, the respondent failed to appear. The non-appearance of the respondent is consistent with all of the hearings that I have just outlined wherein the respondent has, for reasons known only to himself, failed to attend or to instruct a solicitor to attend on his behalf.
For the purposes of the hearing today the applicant has filed an outline of case document setting out the documents to be relied upon and they are as follows:
(2)Initiating Application filed 5 May 2021;
(3)Affidavit of the applicant filed 5 May 2021;
(4)Financial Statement of the applicant filed 5 May 2021;
(5)Affidavit of service of Kylie Marie Mildwaters filed 26 July 2021;
(6)Affidavit of service of Mr N filed 9 November 2021;
(7)Affidavit of service filed 4 March 2022;
(8)Affidavit of the applicant filed 17 March 2022;
(9)Costs Notice; and
(10)Affidavit of service of Darren Mildwaters filed on 21 March 2022.
In addition to the documents just referred to as being relied upon by the applicant, I have received and marked as Exhibits A1 and A2 respectively correspondence forwarded from Mildwaters Lawyers on behalf of the applicant to the respondent dated 16 March 2022 and 25 March 2022, informing the respondent of the hearing this day and confirming with him that should he fail to attend orders will be made in his absence.
SALE OF THE B STREET, TOWN C PROPERTY
Given the extensive efforts that have been made by the applicant and her solicitors to have the respondent engage in these proceedings, I am satisfied by virtue of the sheer number of affidavits of service that have been filed to date that every effort has been made to engage with the respondent and in his absence it is appropriate to proceed today to make interim orders by default in terms of the interim application filed by the applicant for the sale of the B Street, Town C property.
The sale of the B Street, Town C property is not without some complexity. For reasons, again, that are yet to be clarified it would appear that the respondent, via his mother Ms L, has arranged for the B Street, Town C property to be tenanted by a person named Ms G. A Tenancy Agreement which was not executed by a registered co-owner of the B Street, Town C property was executed on 13 February 2020 and the bond for the said property, lodged with SACAT, on 12 March 2020. It would appear that the lease has now expired and the said Ms G remains in occupation of the B Street, Town C property as a “periodic tenant.” In those circumstances I received an oral application made by Ms Ross of counsel on behalf of the applicant this day which restrains the respondent and any agent on his behalf from entering into any further tenancy agreement with Ms G or any other person pending the sale of the said B Street, Town C property.
I am content to make the orders as proposed by the applicant in the draft Minute of Order provided to the Court this day. The application to sell the property has now been on foot for almost 12 months. In that time, the mortgage arrears for the property have continued to accrue. It is unreasonable for the applicant to delay any further her proper entitlement with respect to, in the long term, final orders for property settlement in circumstances where the respondent for reasons, as I say, best known to himself has failed to engage in these proceedings.
I am satisfied, given the lack of engagement by the respondent, that it is appropriate for the applicant to have the sole agency of the B Street, Town C property and for the applicant to determine the best manner in which that property is to be sold and, of course, to execute all documents as are necessary to ensure that the orders of this Court are complied with. Out of an abundance of caution, the Minute of Order provides for any document that requires the respondent’s signature to be signed by a Registrar or Deputy Registrar of this Court to ensure that the documents are executed and hopefully the sale of the B Street, Town C property to proceed as expeditiously as possible.
In addition, I consider it appropriate that the applicant’s costs of and incidental to these proceedings to be reserved to the final hearing. The applicant has incurred significant legal costs endeavouring to engage the respondent and undoubtedly in due course I will be provided with an itemised list of those costs or a rule 12.06 Cost Notice prior to the final date for hearing which will inform the Court as to the quantum sought by the applicant by way of final distribution.
The amount to be divided between the parties, however, still remains questionable given that the B Street, Town C property is yet to go on the market and, of course, as things drag on the mortgage continues to accrue and eat into the valuable equity that the parties have available to divide between them by way of final orders for property settlement.
CONCLUSION
For all of the above reasons, I am content to make the orders as sought by the applicant in the draft Minute of Order provided to me this day by default pursuant to rule 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Dickson. Associate:
Dated: 11 April 2022
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