Danielsen & Ticha

Case [2025] FedCFamC1F 46

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…

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AGLC
Danielsen & Ticha [2025] FedCFamC1F 46
Case
[2025] FedCFamC1F 46
Decision Date

CaseChat Overview and Summary

In the matter of Danielsen & Ticha, the applicant, Mr. Danielsen, sought enforcement of consent orders made by the Court on 6 November 2023, following a de facto relationship with the respondent, Ms. Ticha, which lasted from 2004 to March 2022. The key issue before the Court was the enforcement of the consent orders, specifically focusing on the discretionary power of the Court under section 105 of the Family Law Act 1975 (Cth). This section allows the Court to enforce decrees made under the Act, providing it with a discretionary authority to decide whether to enforce or refuse to enforce a particular order.

The Court found that the consent orders were made in error, as the parties mistakenly believed a CBA bank account, which was actually held jointly, was solely owned by Mr. Danielsen. Ms. Ticha had removed funds from this joint account, which she had no entitlement to, and now resides in the United Kingdom with no known assets in Australia. Given these circumstances, the Court had to determine if it was equitable to enforce the consent orders. The Court concluded that the Respondent had not discharged the onus of showing why it would be inequitable to enforce the order, and delay in the nature of laches was a relevant consideration. Consequently, the Court exercised its discretion under section 105 to enforce the consent orders, directing Ms. Ticha to repay the sum of $129,390 to Mr. Danielsen's solicitors trust account by a specified date.

The Court’s reasoning was grounded in established legal principles that the discretion under section 105 is informed by facts or circumstances arising since the date of the orders and whether it is inequitable to enforce the order. The Court found no authority that restricts the exercise of the section 105 discretion to cases where an equitable remedy or discretionary bar to relief arises. Furthermore, the Court noted that the onus is on the party contending that it is not equitable to enforce the order, and delay or laches is a relevant consideration. Given Ms. Ticha’s failure to respond to the proceedings and her actions to remove funds from the joint account, the Court found it equitable to enforce the consent orders.

In conclusion, the Court granted the application for enforcement of the consent orders, directing Ms. Ticha to repay the removed funds to Mr. Danielsen's solicitors trust account. This decision underscores the Court's power to enforce consent orders and modify machinery provisions to effect enforcement, provided it does not affect the substantive property rights of the parties or cause undue hardship.

Orders

Orders of the court

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.

Background

Background to the litigation

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; andB.50% of any rectification work paid by the Husband pursuant to Orders 1 (e) and (f);ii. the balance then remaining to the Husband.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.