Cavallaro and Vico

[2009] FamCA 1302

FAMILY COURT OF AUSTRALIA

CAVALLARO & VICO [2009] FamCA 1302

FAMILY LAW – ENFORCEMENT – vacate premises – restraint from entering property – stay of orders – costs 

Family Law Act1975 (Cth)

APPLICANT: Ms Cavallaro

RESPONDENT: Mr Vico

FILE NUMBER: SYF 4354 of 2005

DATE DELIVERED: 26 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 26 October 2009

REPRESENTATION  

COUNSEL FOR THE APPLICANT: Mr Johnson

SOLICITOR FOR THE APPLICANT: Burt & Allen

RESPONDENT HUSBAND: In Person

Orders

1. That the husband vacate the premises at C in the State of New South Wales within fourteen (14) days from the date of these orders AND thereafter the husband is restrained from entering onto that property.

2. Leave to the wife to make application without further notice to the husband for the issue of a warrant of possession in the event that those orders are not complied with.

3. Orders are made in terms of paragraphs 1, 2, 3, 6, 7 and 11 of the document titled “Short Minute of Order” marked Exhibit 1 as set out hereunder:

   “1.That pursuant to Section 106A of the Family Law Act, the Registrar sign the Sales Agency Agreement in respect of the proposed sale of the property at [C] NSW (‘the property’) in lieu of the husband.

   2.That the Registrar, pursuant to Section 106A of the Family Law Act, execute the Contract for Sale in respect of the proposed sale of the property located at [C] NSW.

   3.That pursuant to Section 106A of the Family Law Act, the Registrar sign the Transfer on behalf of the husband on the proposed sale of the property located at [C] NSW.

   6.The wife is to keep the husband informed of the progress of sale proceedings.

   7.The solicitors for the wife be the solicitors for the vendor on sale.

   11.That the Marshal and all officers of the Australian Federal Police and State Police force within the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.”

4. That the operation of those orders last mentioned be stayed for a period of fourteen (14) days from today’s date.

5. That the husband pay the costs of the wife of the application before the Court today together with costs reserved on 12 October 2007 and 4 December 2008.  Those costs to be as agreed between the parties within fourteen (14) days from today’s date and failing agreement as assessed by a Registrar of this Court.

6. In the event that the costs are quantified prior to final distribution of the proceeds of sale of the property in accordance with the orders made by this Court on 18 July 2006, those costs are to be paid from the husband’s share of the proceeds prior to that share being paid to the husband.

IT IS NOTED that publication of this judgment under the pseudonym  Cavallaro & Vico is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:       SYF 4354 of  2005

MS CAVALLARO

Applicant

And

MR VICO

Respondent

REASONS FOR JUDGMENT

1. These are proceeding for enforcement of orders made on 18 July 2006.  Those were proceedings heard before a Judicial Registrar on an undefended basis and resulted in orders on that date for the sale of a property at C, and for the net proceeds of sale after the required payments to be divided equally.  It appears that outside the time provided by the rules, the husband sought to review that decision.   That matter came before Benjamin J, who made an order extending the time for an application for review, on condition of a payment for moneys. That decision, in turn, was appealed to the Full Court and the Full Court found that because there was no evidence that the husband had available funds, the extension of time provided no net benefit, and so there was an inconsistency between his Honour's proposal to extend the time and the condition that was imposed. The Full Court extended the time again, allowing the husband until 18 December 2008 to make his application to seek to review the decision of the Judicial Registrar.  No such application was made. Therefore, as at 18 December 2008, the orders of the Judicial Registrar were in force and were enforceable. 

2. The wife brings these proceedings seeking orders that she have access to the property; that the husband vacate the property; that she have carriage of the sale and the assistance of 106A orders for documents to be signed in the stead of the husband; and she seeks costs.   The husband appears today on his own account.  He says that he would like the case adjourned for a month so that he could instruct solicitors to try and continue negotiations. He says that English is his second language.  He has been very articulate today.

3. His case is one that he would have wanted to make in the substantive proceedings if he had been able to, or had arranged to, and perhaps it is a case that he might have made on the hearing of the review. The case is that the home in question was built with his own hands; that he came into the relationship with the wife, with the property. He would argue that in applying section 79, a proper outcome would be that he retain the property and the wife be paid out.

4. The husband may not know this, but had he taken the opportunity in 2006, or if he had taken the extended opportunity granted by Benjamin J, or the further extension granted by the Full Court, there would have been a fresh hearing of his application for settlement of property.  An applicant for a review is not even required to show that there was an error made in relation to the decisions of a delegate on property settlement.  In any event the time for that has passed.

5. There is no evidence offered by the husband today in relation to delay.  He has provided a bundle of documents which talks about the background of the case.  He has provided three medical certificates but they do not provide admissible evidence about his health.  Two of the certificates dated 2006 and 2007 address an anxiety condition and the other related to a work place injury, I gather some time before that.  There is no evidence from the husband and no explanation as to how the time, between 12 December last and today, has been expended.

6. This application was originally filed on 31 July 2009 and then a further amended application filed on 29 September 2009.  There is an affidavit of the wife, Ms Cavallaro, and the process server, Mr H, and he gives evidence about attempts to serve the documents. In particular attending at the husband’s address on the 8^th, 10^th, 13^th, 17^th, 21^st, 24^th and 25 August, at all different times including late afternoon and early evening. On occasions there were lights on in the property and a van was parked outside.  There is evidence of a mobile phone number and a landline number.  A call was made to the mobile number on 3 September 2009 and a conversation was held with somebody purporting to be the husband.  The husband tells me today, in effect, that he was not at the home on any of the occasions.  That seems a bit unlikely.  He says that he does not have paid employment and there was a van parked at the premises. He does however concede that he spoke to the process server in the telephone call referred to above, of 3 September.  The husband said:

   I am not accepting service.  If my ex-wants to speak to me at property settlement, she can ring me.

   The process server:      

   The documents still need to be delivered to you.

   The husband:

   I am not accepting them.

   The process server:

   If you will not make yourself available then we will leave the documents at [the C property].

7. Technically, the husband is keeping house, he is avoiding service of the documents.  He agrees that he knows the identity of the wife's solicitor.  He could have made a phone call to that firm and arranged to collect the documents himself. On the basis of those facts, to the extent that there was some delay in the documents actually getting into his hands, that is his own responsibility. 

8. I am satisfied in those circumstances that it is proper to deal with the wife’s application today. Enforcement is a discretionary remedy, but the only real issues are the practicalities.  The husband needs to leave the premises and that takes some time.  The wife seeks that he do that within 7 days, and that seems a bit tight to me. In giving the husband a longer period, without suggesting there is any merit in his approach, it seems to me that such a period might facilitate belated settlement discussions. It gives the husband a bit a more time to reach an agreement with the wife's solicitors, through his solicitor. I have indicated to the parties I might make the order that he leave the property within 14 days and make all of the other orders, but stay their operation for 14 days.  In other words, the effect of getting the property on to the market and so on, could not start within that time.  It is, presumably, not what the wife would prefer because she asked for a shorter time.  I know it is not what the husband wants because he wants a much longer time, but it addresses the issues to some extent. 

9. There is an application for costs.  The wife formally seeks indemnity costs estimated in the sum of $40,000.  There is no basis revealed to that estimate and it seems to me that the usual order should apply.   Minds might differ about that.  It is not unusual that costs assessments are made on a more generous basis than party and party basis in enforcement proceedings, because the wife was forced to come to Court. If there is any interruption in the program that I will put in place, then a court looking at this issue again might well say that there is a proper basis for an indemnity order, or at least an order on lawyer and own client basis.

ORDERS DELIVERED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  7 December 2009