Cotter and Cotter

[2016] FamCA 424

FAMILY COURT OF AUSTRALIA

COTTER & COTTER [2016] FamCA 424

FAMILY LAW – PROPERTY – ENFORCEMENT - Where orders made by consent – Where wife seeks to set aside the orders under s 79A of the Family Law Act 1975 (Cth) – Where husband seeks to enforce orders made by consent – Where self-executing orders made for the wife to file evidence in support of her application and should she fail to do so her application would stand dismissed – Where wife failed to file or provide to the Court documents as ordered and her application under s 79A was dismissed – Where orders made for husband to be authorised to act on behalf of both parties to give effect to consent orders in part – Where balance of husband’s application for enforcement and costs adjourned to a later date for hearing.

Family Law Act 1975 (Cth) s 79A

APPLICANT: Ms Cotter

RESPONDENT: Mr Cotter

FILE NUMBER: PAC 4313 of 2013

DATE DELIVERED: 19 May 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms Judge

SOLICITOR FOR THE RESPONDENT: Jonathan Abbott & Associates

Orders

1. That the husband Mr Cotter be authorised on behalf of he and the respondent Ms Cotter to all things necessary and sign all necessary documents so as to make application to the Director of Land Titles, New South Wales for a replacement Certificate of Title in relation to the property at B Street, Suburb C, being the land comprised in folio identifier ...

2. That the husband Mr Cotter be authorised to do all things necessary and sign all necessary documents on behalf of himself and the respondent Ms Cotter so as to obtain a replacement discharge of mortgage from Perpetual Trustee Limited in relation to the mortgage that previously encumbered the property at B Street, Suburb C, being folio identifier ...

3. That the husband Mr Cotter be authorised to do all things necessary and sign all necessary documents on behalf of himself and the respondent Ms Cotter to obtain a replacement Certificate of Title in relation to the property situated at D Street, Sydney, being the land comprised in folio identifier ….

4. That the Registrar, Family Court of Australia, Parramatta forthwith be authorised to execute in the name of the wife the Memorandum of Transfer in respect of a property at B Street, Suburb C, being the land comprised in folio identifier …, that transfer effecting a transfer of the wife’s right title and interest in that property to the husband. 

5. Otherwise, proceedings as to the balance of the husband’s enforcement application seeking a sale of the property at E Street, Suburb F and as to costs be adjourned for hearing to 10.00 am on 20 July 2016.

6. That the applicant husband file and serve any further affidavit material to be relied upon by him in relation to the outstanding matters for determination by no later than Friday 8 July 2016.

7. That the solicitor for the husband, by ordinary prepaid post addressed to the wife at E Street, Suburb F forward to the wife a sealed copy of orders made today together with a letter informing the wife that in the absence of her during the period of the adjournment complying with order 1(c) made on 24 February 2015, there may well be an order for sale of the Suburb F property on that day and that further, the husband’s application for costs will be heard and determined on that day. 

8. That the wife file any affidavit material to be relied upon by her by no later than 8 July 2016. 

9. The husband’s costs of today be reserved.

10. Leave to the husband to relist proceedings as to implementation of these orders on short notice. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cotter & Cotter 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 PARRAMATTA

FILE NUMBER: PAC 4313 of 2013

Ms Cotter

Applicant

And

Mr Cotter

Respondent

REASONS FOR JUDGMENT

Context

1. On 19 May 2016 various orders were made as to the husband’s enforcement application more fully set out below. Ex tempore reasons for judgment were delivered. These are those reasons.

2. These are proceedings that were initially commenced by the wife, Ms Cotter, by application initiating proceedings filed on 14 July 2015. That application sought relief under s 79A of the Family Law Act 1975 (Cth) (“the Act”) in relation to various consent orders made between the husband and wife on 24 February 2015.

3. The orders made by consent of the parties on 24 February 2015 were orders made by a Registrar in chambers, with the appearance of Ms Hamilton of counsel on behalf of the applicant husband at that stage, and Ms Shevket solicitor on behalf of the respondent wife at that stage.

4. The orders made provision for various adjustments in relation to the matrimonial property, but particularly in the context of the issues that have arisen. 

5. The orders require relevantly in summary:

   a)The husband to transfer his interest in a property situated at E Street, Suburb F to the wife, and concurrently with that transfer the wife procure a discharge of the joint mortgage presently secured over that property;

   b)The wife transfer to the husband her interest in a property situated at B Street, Suburb C. The B Street property is presently unencumbered, although the discharge of mortgage in relation to that property has not as yet been registered. There is some suggestion the wife has the duly-signed discharge in her possession.

   c)The orders provide relevantly for the sale of a commercial property owned by G Pty Ltd as trustee for the Cotters Unit Trust, which is the parties’ self-managed superannuation fund. 

6. As will be seen below, orders were made by consent on 6 May 2016 so as to empower the husband to be able to conclude that sale in accordance with the orders made by consent on 24 February 2015.

7. The wife’s application came before a Registrar in chambers on its first return date on 18 September 2015. On that day, the applicant wife appeared in person, and Ms Hamilton of counsel appeared on behalf of the husband. It was noted that the wife would be seeking some time to obtain legal advice in relation to her application under s 79A of the Act, and that the husband may seek to list an application for enforcement filed by way of application in a case on 9 September 2015 for determination. In any event, proceedings were adjourned for further directions before a Registrar to 30 October 2015.

8. On 30 October 2015, there was no appearance on that date by or on behalf of the applicant wife in relation to her s 79A application, and the husband sought to have his application for enforcement filed on 9 September 2015, listed for determination. The proceedings were adjourned to a judicial management list on 14 December 2015 at 11.30 am. The copy of orders facilitating that adjournment were forwarded to the wife at her notice of address for service shown on her s 79A application, and the matter was listed on 14 December 2015.

9. On 14 December 2015, Ms Smith, solicitor, appeared on an amicus basis on behalf of the wife, who appeared in person, and Ms Hamilton of counsel appeared on behalf of the husband. On that day, certain directions were made to bring the various applications into order so as to facilitate determination. It was ordered, in summary:

   a)That proceedings be adjourned to 15 March 2015 for further case management;

   b)That the husband’s application in a case be adjourned to 15 March 2016 for hearing; 

   c)That the husband file and serve any amended application, together with any further affidavit and material to be relied upon by him by no later than 11 March 2016; and

   d)That the wife file and serve a response to the application in a case and any affidavit material upon which she seeks to rely by no later than 11 March 2016.

10. It was further ordered that the husband have leave to administer a request for further and better particulars to the wife as to the precise grounds relied upon by her under s 79A of the Act to set aside or vary the subject property orders, and for particular facts relied upon in support of each of the grounds to be specified, with that request to be administered by 29 January 2016, with the wife’s response to that request for particulars to be provided by no later than 26 February 2016. The Court further ordered that the costs to the husband of 14 December 2015 be reserved.

11. The wife on 24 February 2015 filed a response to the husband’s application in a case, simply seeking an order that his application by way of enforcement be dismissed. 

12. The proceedings were again before the Court on 15 March 2016. The wife appeared in person, and Ms Hamilton of counsel for the respondent husband. It was clear the proceedings were not ready to proceed, as the fate of the wife’s outstanding s 79A application had not been determined. Accordingly, it was ordered by the Court that proceedings be adjourned to 6 May 2016 at 2.15 pm for the husband’s application for summary dismissal of the applicant wife’s s 79A application and thereafter for hearing of the husband’s application for enforcement of property orders.

13. It was ordered:

    a)That the wife’s compliance with Order 4 made on 14 December 2015 – that is, as to her filing a response and any affidavit in support relating to the husband’s enforcement application – be extended to no later than 29 April 2016;

    b)That the wife file and serve any further affidavit material to be relied upon by her in support of her s 79A application by no later than 29 April 2016;

    c)That the wife file and serve an amended initiating application setting out with particularity the provisions of s 79A on which she relies by 29 April 2016; and

    d)That the wife pay the husband’s costs thrown away by reason of the further adjournment assessed in the sum of $750, within two months. 

14. It is noted that those costs have been paid by the wife.

6 May 2016 

1. On 6 May 2016, proceedings were again before the Court, and the wife, arriving somewhat late at court on that day, appeared in person. Ms Judge of counsel appeared on behalf of the husband. 

2. After some discussion:

   a)The parties agreed that in order to facilitate the implementation of part of the orders made by consent that the parties appoint H Agents, Sydney, as agent for sale of the commercial property at D Street, and that thereafter the husband be empowered to do all necessary things and sign all necessary documents on behalf of both he and the wife to list that property for sale in the manner provided for in orders made on 24 February 2015;

   b)It was further ordered that upon noting that the parties have agreed upon the appointment of a conveyancer for the purposes of conducting a sale of the commercial property, that I Conveyancing be appointed, and the husband do all things necessary and sign all necessary documents so as to appropriately instruct on behalf of the husband and wife I Conveyancing to have carriage of the sale of the commercial property as provided for in orders made on 24 February 2015;

   c)It was furthered ordered on that day that proceedings be adjourned to 19 May 2016, as the wife continued to agitate her s 79A application in respect of certain of the orders made by consent on 24 February 2015;

   d)It was ordered that the wife be in attendance in person on that date, and that she produce to the Court on that date the Certificate of Title in relation to the property of B Street, Suburb C, being Folio Identifier …, together with the duly executed discharge of mortgage of the mortgage secured over that property;

   e)It was noted that on the adjourned date it was proposed that those documents be provided to the husband or his solicitor and the wife concurrently sign a memorandum of transfer of that property to the husband as provided for in orders made on 24 February 2015;

   f)It was further ordered that the wife’s compliance with Order 2 made on 15 March 2015 be extended to the close of business on 18 May 2016, that the wife’s compliance with Orders 3 and 4 made on 15 March 2016 be extended to the close of business on 18 May 2016;

   g)Proceedings as to enforcement and the husband’s application for summary of dismissal of the wife’s s 79A application adjourned for hearing to 19 May 2016 at 10.00 am;

   h)Importantly, it was further ordered that in the event that the wife fails to comply with the previous orders for her to file and serve her further material in relation to her s 79A application, then her initiating application filed on 14 July 2015 shall stand dismissed, that is, in effect, a self-executing order; and

   i)It was further ordered that the costs of the husband of 6 May 2016 be reserved, noting that he has had that day made an application for indemnity costs in the sum of $4357.85. 

19 May 2016

1. The proceedings came before the Court again today at 10.00 am.  The wife appeared in person and the husband appeared represented by Ms Judge of counsel. 

2. The wife informed the Court that she had not filed documents in relation to her s 79A application, as previously ordered, and the wife was thereupon informed that as a consequence her s 79A application filed on 14 July 2015 was dismissed by reason of the orders made on 6 May 2016.

3. That left for determination the husband’s application for enforcement and his outstanding applications for various costs incurred by him endeavouring to enforce the consent orders made on 24 February 2015. 

4. The wife informed the Court that she did not bring to the Court the Certificate of Title and discharge of mortgage in relation to the property at B Street, Suburb C as ordered on 6 May 2016, asserting that she was unable to find those documents during the period of the adjournment.

5. Subsequently, the matter was stood down in the list until 2.15 pm, in expectation of the wife attending at that time and she bringing to the Court the documents that were previously required by her. 

6. The wife was ordered to be in attendance in person at 2.15 pm before the Court. 

7. The Court has been informed by Ms Judge of counsel that during the period of the adjournment and prior to 2.15 pm, her chambers received communication from the wife indicating that for some reason she was delayed at Suburb J and that she would, initially, be in attendance at the Court later than expected. There was then a subsequent call from the wife to Ms Judge’s chambers informing those chambers that the wife was indeed unable to attend Court today as a consequence of still being unavoidably detained at Suburb J and that she would provide the documents requested by her by delivering them under the door of the husband’s home during the course of this evening.

8. The Court required inquiries to be made of the wife by telephone as to whether she proposed to be in attendance and informing her that in the absence of her attendance, the Court would proceed to hear and determine portion of the husband’s enforcement application. 

9. The Court has been informed by Ms Judge of counsel that a phone call was made by her instructing solicitor to the wife’s telephone and that the call went through to the wife’s voicemail facility and a detailed message was left for the wife informing her that in the event that she did not attend, that the matter would proceed as to enforcement, and that otherwise, an issue as to the husband’s costs and enforcement of the order in relation to her discharging the mortgage over the Suburb F property by way of a sale of that property would be deferred to a later date for consideration.

10. The wife has not attended and Ms Judge, with leave of the Court, has made an oral application for certain orders to facilitate the procuring by the husband of a replacement Certificate of Title in relation to, firstly, the Suburb C property at B Street, and otherwise in relation to the property at D Street, Sydney, being more particularly the property known as D Street, Sydney.  Ms Judge also sought leave to make an oral application for an order to facilitate the husband doing all things necessary on behalf of he and the wife to obtain from the former mortgagee over the Suburb C property, Perpetual Trustee Limited, a replacement discharge of mortgage, with the husband empowered to sign all documents to make that request on behalf of he and the wife.

11. Clearly, this matter has taken an unduly long period of time to come to resolution by reason simply of the wife’s inability to come to grips with the orders of the Court and, notwithstanding suggestions that she do so, obtain appropriate legal advice. 

12. As a consequence, her s 79A application has been dismissed.

13. In all of the circumstances, it is appropriate to make orders as sought by counsel for the husband to facilitate him bringing to fruition part of the outstanding issues arising from orders made by consent on 24 February 2015.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 May 2016.

Associate: 

Date:  19 May 2016