DANIELS & FINDLAY

[2013] FamCA 796

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY [2013] FamCA 796

FAMILY LAW – WARRANTS - Warrant for possession – extension

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Daniels

RESPONDENT: Ms Findlay

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 4 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 October 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. That the enforcement warrant referred to in paragraph 4 of the orders made on 5 October 2012 is extended for a further period of 12 months from the date of its issue.

2. That paragraph 4(d)(i) of the orders made on 5 October 2012 is varied to include all costs pursuant to orders of this Court made after 5 October 2012.

3. That the application in a case filed 2 September 2013 is otherwise dismissed.

4. That the letter purporting to be from the respondent dated 30 September 2013 be brought to the attention of the Deputy Chief Justice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Findlay 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 MELBOURNE

FILE NUMBER: MLC 1996 of 2008

Mr Daniels

Applicant

And

Ms Findlay

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Daniels filed on 2 September 2013 seeking that an enforcement warrant which was issued on 5 October 2012 for the sale of a property at Town M be renewed for a further 12 months.  The order on the file indicates that the original enforcement warrant relating to the sale was for a period of 12 months.  The applicant has also provided an affidavit of service of the application, and his affidavit filed 19 September suggests that he serve the documents by registered post to … O Street, Suburb F. 

2. There is sitting on the file a letter dated 30 September from a person who describes herself as Ms Findlay of that address addressed to the judge personally.  I do not understand the background of this matter.  So much of the rantings do not make a lot of sense, but in any event they are at best, impertinent, if not abusive.

3. The important part about it is that the letter indicates that she has received the documents although she seems to suggest that they were not properly signed or necessarily in an appropriate order.  She is not here today to complain about that but in any event the affidavit certainly seems to me to be in appropriate order and it certainly seems to have been signed in the appropriate way.  I do not understand what it is that she is complaining about.

4. There is a connection, I think, between what is said in the letter about the fact that there was a previous hearing that I conducted on 9 August and this letter.  Looking at my reasons for judgment which I had transcribed, Ms Findlay filed an application in a case seeking to leave the Commonwealth of Australia in circumstances where McMillan J had placed a restriction on her for reasons that do not matter.

5. I observed in my reasons that she could not make that application because there was a section 118 order precluding her from bringing any application without leave of the judge.  Looking at the letter, it would seem that she thought that she could attend by electronic communication but that certainly was not my understanding on the day and I dismissed her application on the basis that she was not present.

6. She also seems to be referring to the fact that Mr Daniels was present on the day and somehow her computer had been hacked into.  My recollection is that he had been told fortuitously as he was bringing the present application and his solicitors had checked the portal and seen the application and, he attended on the day.  I am therefore not entirely sure what the ranting is about.  First, the letter acknowledges the existence of the application and its receipt, but secondly, it does nothing to address the reason why she is not here today nor why the order ought not be made to extend the warrant.

7. The Court made an order that the Marshal take possession for the purposes of the sale and in March this year, the property burned down.  As a consequence there was not a lot of enthusiasm apparently by purchasers and therefore we are in a state of flux.  Mr Daniels now seeks an order for a further 12 month period and it seems sensible for that to occur to enable the warrant to be executed.

8. The application also seeks an order which is not exactly in terms that I could make, but I now understand it to mean that subsequent to the orders of 5 October 2012 there have been assessments by the Registrar in relation to costs.  It would be sensible having regard to paragraph 4D(i) of the orders of 5 October to alter that to read:

   Plus all other orders of the Court subsequent to the 5 October 2012 in relation to costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 October 2013.

Associate: 

Date:  16 October 2013