Danielsen & Ticha
[2025] FedCFamC1F 46
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Danielsen & Ticha [2025] FedCFamC1F 46
File number: MLC 15850 of 2024 Judgment of: MCGUIRE J Date of judgment: 6 February 2025 Catchwords: FAMILY LAW – PROPERTY- Section 105 Application for enforcement – Application by the husband for enforcement of Consent Orders made 6 November 2023 – Consideration of the discretionary power of the Court to enforce orders pursuant to section 105 of the Family Law Act 1975 (Cth) – Application proceeded undefended the wife where Court satisfied that she had been properly served with the process and given notification of the hearing date and no Response was filed - Orders granted Legislation: Family Law Act 1975 (Cth) ss 79A and 105 Cases cited: Bray & Bray [1988] FamCA 22; (1988) FLC 91-968
In the Marriage of Spry and Roet (1977) 29 FLR 425
McDonald and McDonald (1976) FLC 90-047
McMillan & McMillan [2016] FamCA 387
Molier & Van Wyk [1980] FamCA 85; (1980) FLC 90-911
Ramsey & Ramsey [1982] FamCA 42; (1983) FLC 91-301
Ravasini & Ravasini [1982] FamCA 62; (1983) FLC 91-312
Taylor v Taylor (1979) FLC 90-674; [1979] HCA 38
Yilmaz & Yilmaz [2014] FamCA 663
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 31 January 2025 Place: Melbourne Counsel for the Applicant: Ms Dellidis SC Solicitor for the Applicant: Velocity Legal Solicitor for the Respondent: Litigant in Person - no attendance ORDERS
MLC 15850 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANIELSEN
Applicant
AND: MS TICHA
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS THAT:
1.This matter proceed to hearing undefended the Respondent.
2.Pursuant to s 105 of the Family Law Act 1975 (Cth) and for the purpose of giving effect to Order 4(c)(ii) of the Final Orders made 6 November 2023, the Respondent do all things necessary to pay to the Applicant’s solicitors trust account (Account Name: Velocity Legal Trust Account; BSB number …; Account Number: …29) by 4pm AEST on 7 February 2025, the sum of $129,390 removed by her from CBA Account ending ## …33 on 13 December 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym of Danielsen & Ticha has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATION
Mr Danielsen (“the Applicant”) seeks enforcement of consent property orders made 6 November 2023 and through the tool of a machinery or consequential order.
The Applicant seeks an order in the following terms:
1.Pursuant to s 105 of the Family Law Act 1975 (Cth) and for the purpose of giving effect to Order 4(c)(ii) of the Final Orders made 6 November 2023, the Respondent do all things necessary to pay to the Applicant’s solicitors trust account (Account Name: Velocity Legal Trust Account; BSB number […]; Account Number: […]29) by 4 pm AEST on 7 February 2025, the sum of $129,390 removed by her from CBA Account ending ## […]33 on 13 December 2024.
Circumstantially the matter was brought on for urgent hearing. Ms Ticha (“the Respondent”), having been served with process and given notice of the hearing date and time, did not provide a Response or attended at the hearing. Given the nature and urgency of the matter, and after hearing the submissions of senior counsel for the Applicant, I determined to make the order sought but, with the consent of senior counsel, to provide these written reasons at a later date. The urgency stems from the Court being satisfied that the Respondent did opportunistically remove monies from a CBA bank account held jointly with the Applicant but where she had no entitlement to those moneys and the parties were each mistaken at the time of the making of the consent orders as to that account being held jointly rather than held solely by the Applicant. Further, the Respondent now resides in the United Kingdom and has no known assets in Australia and where the evidence suggests that the Respondent acted with intention to use the relevant monies for her own benefit.
BACKGROUND
The Applicant and the Respondent were in a de facto relationship between 2004 and March 2022.
In a document titled Application for Consent Orders signed by the Applicant and Respondent respectively on 10 October and 11 October 2023 the parties sought final property settlement orders by consent
Both parties were represented by solicitors who duly completed Statements of Independent Legal Advice on the Application for Consent Orders.
The Application at [48] purports to set out the parties’ bank accounts and balances. The parties acknowledge one jointly held CBA account but where the evidence is that the account was linked to the mortgage on their former jointly owned property and that the account was finalised and closed upon the sale of the relevant property.
Mistakenly the Application for Consent Orders discloses at [45] a number of CBA accounts purported to be held solely by the husband including the account ending in ##…33 where, in fact, the evidence now discloses that this particular account was held in the joint names of the parties.
The Application proceeded to consent orders being made by a Deputy Registrar on 6 November 2023 without either party rectifying the error.
It is the Applicant’s evidence that the relevant bank account ending in ## …33 held a balance of $0.55 cents at the relevant date being the signing of the Application for Consent Orders and hence the Court can consider it de minimis in its impact on the consent orders eventually made.
Inter alia the Consent Orders of 6 November 2023 provide at [1] – [5] for the sale of the jointly owned real property situate at Suburb B in the state of Victoria. Suffice to note that Order [4] provides for the disbursement of the proceeds of sale as follows:
Upon settlement of the sale of the [Suburb B] property, the net proceeds of sale shall be divided as follows:
a.first, to pay all costs, commissions and expenses of the sale including agent’s fees and commissions, and conveyancing costs;
b.second, to discharge the CBA mortgage encumbering the property;
c.third, the balance then remaining to be divided as follows:
i.65% to the Wife PLUS the sum of $19,126 LESS:
A.50% of the CBA mortgage repayments for the [Suburb B] mortgage paid by the Husband from 1 August 2023 to the settlement of the sale of the property; and
B.50% of any rectification work paid by the Husband pursuant to Orders 1 (e) and (f);
ii. the balance then remaining to the Husband.
Further, Orders [12] and [13] provide mirror orders in respect of each of the parties retaining to the exclusion of the other:
The Husband otherwise retain for his sole use and benefit free from any claim by the Wife:
a. monies in any bank accounts in his sole name;
b.personal belongings and household items in his possession;
c.his [Motor Vehicle 1], [Motor Vehicle 2], [Motor Vehicle 3] and 50% interest in the [Motor Vehicle 4];
d.his trailer; and
e.save as otherwise provided for in these Orders, his [Super Fund 1] entitlement.
13.The Wife otherwise retain for her sole use and benefit free from any claim by the Husband:
a. monies in any bank account in her sole name;
b.save as provided in these Orders, the personal belongings and household items in her possession;
c.her [Motor Vehicle 5]; and
d.her [Super Fund 2] entitlements.
The Orders nowhere deal with any joint bank account.
The Applicant relies on his affidavit sworn 16 December 2024 where he deposes as follows:
(i)the Application for Consent Orders incorrectly identified the joint CBA account as an account of the Applicant and that he understood it to be his account at that time;
(ii)commencing from 10 January 2024 the Applicant began transferring monies from his CBA account in his sole name ending ## …84 (his Everyday Account) into the CBA account ending ## …33
(iii)that the Applicant utilised this bank account in accordance with [73] of the Application for Consent Orders noting the proposed distribution of property which by reference to [45] would include the balance of the CBA account ending ## …33;
(iv)the sale of the property at Suburb B settled in early 2024 and in early 2024 the Applicant received his share of the sale proceeds being $136,000 and, on his instructions, deposited it into his NAB account;
(v)the Applicant then loaned these monies to a friend on agreement for repayment by instalments to be received into his “Everyday Account” ending ## …84;
(vi)the Applicant then transferred those monies into the relevant CBA account (in joint names) ending ## …33 deposing that he intended to use that account as a “savings account”;
(vii)as at 13 December 2024 the Applicant had accumulated from the property settlement monies and from his income a balance of $258,780.33 in the relevant account ending ## …33;
(viii)that the Respondent had made no contribution to that account since the date of the Final Orders;
(ix)that on 13 December 2024 the Applicant became aware that there had been a significant withdrawal of $129,390 at 6:55am from the relevant account ending ##…33;
(x)he attended upon the bank and was advised that the withdrawal had been made by the Respondent and advised that the account remained held in joint names. The bank advised that it could not, therefore, reverse the transaction. The bank identified the deposit being made into the Respondent’s personal bank account;
(xi)that upon review of statements in respect of the relevant account ending ## …33 the Applicant discovered that the Respondent also made further withdrawals being:
(a)on 1 January 2024 a withdrawal of $150 into her account ending ## …08; and
(b)on 22 April 2024 a withdrawal of $2,990 into her account ending ## …08 with total monies therefore withdrawn by the Respondent being $132,530.
(xii)the Applicant says that he then transferred the remaining balance in the relevant account ending ## …33 to his personal Everyday Account;
(xiii)on 16 December 2024 the Applicant instructed solicitors to correspond with the Respondent seeking urgent repayment. No positive response was received; and
(xiv)the Respondent is now resident in the United Kingdom and has no known assets in Australia.
The Applicant also relies on an affidavit of his solicitor, Shannon Dale Hilton, affirmed 30 January 2025 deposing that documents subpoenaed from CBA confirm the Applicant’s evidence as to the removal of monies from the relevant account ending ## …33 and into the Respondent’s personal bank account and deposing at [3] thus:
From documents produced by the CBA pursuant to a subpoena I caused to be filed on 24 December 2024 for the Respondent’s bank accounts, it appears:
a.On 13 December 2024, the Respondent received $129,390 into her account ending #[…]78 from the Joint Account.
b.On the same day, the Respondent transferred the $129,390 to another CBA account in her name ending #[…]74. This account held a balance of $202,984 before this transfer and increased to $332,354 after this transfer.
c. Between 13 December 2024 and 21 December 2024:
i.The Respondent made lump sum transfers totalling $330,000 from her account ending #[…]74 back to her account #[…]08.
ii.On the same day as each of the lump sum transfers into her account #[…]08, she then made a transfer of the same amount to an account ending #[…]57 in her name in the United Kingdom, totalling $330,000.
The solicitor then deposes as to service of process and interim orders on the Respondent by email and WhatsApp message and including notice of the hearing before this Court on 31 January 2025.
CONSIDERATION
The Application before me initially relied upon s 79A of the Family Law Act 1975 (Cth) (“the Act”) to ground the Application. Wisely, senior counsel at the hearing agreed that no power was available to the Court utilising this section and hence mounted argument for enforcement of the Consent Property Orders pursuant to s 105 of the Act by way of a machinery or consequential order.
Section 105 of the Act provides this:
(1)Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
Rule 11.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide for enforcement of financial orders and obligations.
The inclusion in s 105 of the Act of the word “may” indicates a discretion in the Court whether to enforce or refuse to enforce a particular order.[1]
[1] Ramsey & Ramsey [1982] FamCA 42; (1983) FLC 91-301.
It is important to emphasise that where the Applicant here asks the Court to make an order of a machinery type or consequential upon the substantive orders of 6 November 2023, it is not open to the Court to vary the substantive orders made under s 79 of the Act given that such orders are deemed to be “full and final”.[2]
[2] Taylor v Taylor (1979) FLC 90-674; [1979] HCA 38.
There is, however, ample authority to the effect that the Court has power to modify the machinery provisions of a property order provided that it does not affect the substantive property rights or cause undue hardship to either party.[3]
[3] McDonald and McDonald (1976) FLC 90-047.
In Molier & Van Wyk[4] the Full Court determined that whilst it does not have power to vary an order utilising s 79A of the Act where “circumstances” have occurred after the making of the orders, it does have power to enforce the orders and to modify the machinery provisions of the orders to effect enforcement provided, consistent with previous authority, that this does not affect the substantive property rights of the parties.
[4] [1980] FamCA 85; (1980) FLC 90-911.
A later Full Court in Ravasini & Ravasini[5] similarly held that the Court has no power to vary an order for property settlement but does have power to enforce the order and to modify the machinery provisions of that order to effect.
[5] [1982] FamCA 62; (1983) FLC 91-312.
With an eye on the rights and obligations conveyed on the parties by reason of the orders and with the intention of providing justice and equity, a consequential or machinery order is available to a court to enforce its orders dependent upon the nature and context of the order itself.[6]
[6] Bray & Bray [1988] FamCA 22; (1988) FLC 91-968 at P 77,001.
In McMillan & McMillan[7] Tree J at first instance provides a helpful summary of the authorities in respect of the discretionary power under s 105 of the Act and distils at [37] – [60] the general principles applicable to the exercise of that discretion as follows:
(1)Firstly, it is only facts or circumstances arising since the date of the orders sought to be enforced that will inform the discretion under s 105.[8]
(2)Secondly, the question of the Court’s consideration is whether in all the circumstances it is inequitable to enforce the order. But there is no decision of the Full Court which specifically restricts the exercise of the s 105 discretion only to circumstances where an equitable remedy or discretionary bar to relief arises;
(3)Thirdly, the onus upon showing that it is not equitable to enforce the order is upon the party so contending.[9]
(4)Fourthly, delay in the nature of laches is a relevant consideration. In this context, also relevant will be the absence of any Commonwealth limitation period for enforcement, and the existence of any relevant State limitation period for the enforcement of judgments.
[7] [2016] FamCA 387.
[8] In the Marriage of Spry and Roet (1977) 29 FLR 425 at 428, 430.
[9] Yilmaz & Yilmaz [2014] FamCA 663.
On the available evidence in this matter and noting that the Applicant’s evidence is not contradicted or challenged by reason of the nonparticipation of the Respondent, I am able to make the following findings of fact:
(1)the parties were jointly mistaken in their understanding of the status of CBA account ending ## …33 as indicated in their jointly signed Application for Consent Orders;
(2)the Consent Orders of 6 November 2023 are silent as to any jointly held accounts;
(3)the Applicant proceeded on his understanding, albeit mistaken, that CBA account ending ## …33 was an account in his sole name;
(4)the Applicant proceeded to use the account ending ##…33 as his own personal savings account following the making of the orders and that all deposits into that account following the orders were made the by the Applicant and none by the Respondent;
(5)the Applicant caused his entitlement from the proceeds of sale of the Suburb B property to be paid (eventually) into the CBA account ending ## …33;
(6)the Respondent unilaterally and surreptitiously withdrew $129,390 from the relevant CBA account ending ## …33 in circumstances where she knew, or should have known, that she had no entitlement to those moneys such being the Applicant’s property by reason of the disbursement of the net proceeds of sale of the Suburb B property pursuant to the Consent Orders of 6 November 2023;
(7)the Respondent has refused demands for the return of the moneys; and
(8)that the balance of the funds held in the relevant CBA account ending ## …33 as at the date of the Application for Consent Orders executed by each of the parties was $0.55 cents and hence de minimis in its absence of mention in the Consent Orders made 6 November 2023.
It is trite to observe that the fundamental requirement of s 79 of the Act is to provide justice and equity to parties in property settlement orders made pursuant to that section. I can infer that the Consent Orders of 6 November 2023 purported to give justice and equity to the parties by reason of their declarations in the Application for Consent Orders executed by each of them on 10 and 11 October 2023. In reality the Respondent has taken and retained the entitlement of the Applicant being his share of the proceeds of sale of the Suburb B property. She has done so by reason of mistaken belief of the parties, evidenced by their signing of the Application for Consent Orders, that CBA account ending ## …33 was the sole property of the Applicant and an account in his sole name. Flowing from that mistaken belief and the actions of the Respondent in removing the sum of $129,390 from that account does not, therefore, give effect to the intent of the Consent Orders and hence the Applicant should have the benefit of the consequential order that he seeks by way of enforcement pursuant to s 105 of the Act. I will order accordingly.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 6 February 2025
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