Crawford and Crawford

[2008] FamCA 323

FAMILY COURT OF AUSTRALIA

CRAWFORD & CRAWFORD [2008] FamCA 323

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

APPLICANT: Mrs Crawford

RESPONDENT: Mr Crawford

FILE NUMBER: MLC 12417 of 2007

DATE DELIVERED: 18 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 18 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K.R. Rees

SOLICITOR FOR THE APPLICANT: Mahoneys

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the wife’s Application in a Case filed 20 March 2008 shall be adjourned to the Judicial Duty List at 10.00am on 5 May 2008.

2. That the wife’s costs of this day shall be reserved.

3. That the husband shall have leave to file his affidavit sworn 17 April 2008.

4. That the husband’s oral application made this day to extend the time for the discharge of the mortgage pursuant to paragraph 6 of Watt J’s order made on 17 December 2007 is dismissed.

5. That there shall be a transcript of my reasons for judgment given this day and such transcript shall be placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 12417 of 2007

MRS CRAWFORD

Applicant

And

MR CRAWFORD

Respondent

REASONS FOR JUDGMENT

1. In this matter I have the wife's application to enforce orders made on 17 December 2007 by Watt J.  She seeks an adjournment of 14 days.

2. The brief history is as follows.  Final property orders were made in this case on 1 February 2006.  It is alleged by the wife that the husband failed to comply with those orders.  In the course of proceedings for non-compliance, the orders of 17 December 2007 were made by consent. 

3. The relevant parts of the 17 December orders are particularly to be found in paragraphs 6 and 8 of those orders.  Paragraph 6 provided for the husband to transfer to the wife a property described as the W Street property, and for him to discharge the mortgage over that property. From the summary I have received, it seems there were various entities involved, but it was the husband who needed to sign the relevant documents to effect paragraph 6 of the order.  Paragraph 8 provided that if the documents were not signed, then pursuant to section 106A of the Family Law Act, a Registrar of the Family Court would forthwith sign the documents. 

4. Ms Rees for the wife has described a situation where between December 2007 and this current application, the husband had failed to comply with the orders.  Yesterday, the wife's solicitor received notice from the bank that the husband had properly instructed the bank to discharge the mortgage.  He had otherwise signed the relevant documents for the transfer of the property.  The bank has advised that it requires 14 days to process the discharge of mortgage and accordingly the 14 day adjournment is sought. 

5. The husband has appeared today, representing himself.  He says that it would help him if the time for the discharge of the mortgage could be extended by 120 days.  He sought leave to file an affidavit and I am going to grant him that leave.  He must to go to the Registry after this and actually file it.  I have read the affidavit.  It says absolutely nothing that would compel me to do anything other than comply with the wife's application.  In it he sets out that Watt J's orders of 17 December, orders that I repeat were made by consent, were "an act of malice rather than a necessity" referring to the section 106A(1) order.

6. The husband also refers to certain facts pertaining to the time at which the orders were made as an argument for now changing the orders.  But it is clear that these were facts that not only pertained, but were known to him, at the time.  In essence what he is seeking is an appeal of the orders and I have made it clear that I cannot sit on appeal on another single judge’s decision, and there is no merit in any application on behalf of the husband today. 

7. I have made it clear to the wife's solicitor that I am prepared to adjourn the case for 14 days as she seeks, or to dismiss her application with a right of reinstatement, so that provided all the documents go through the bank, there is no need to come back to court.  She has chosen the former approach.  I am satisfied it is an appropriate option.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  18 April 2008