Demopoulos and Fullard (No. 2)
[2015] FamCA 1195
•21 December 2015
FAMILY COURT OF AUSTRALIA
| DEMOPOULOS & FULLARD (NO. 2) | [2015] FamCA 1195 |
| FAMILY LAW – PROPERTY– ENFORCEMENT – Writ of possession – Where the applicant husband seeks that a writ of possession be issued for possession of the former matrimonial home – Where the respondent wife seeks that the orders requiring her to vacate the former matrimonial home be set aside – Application of the wife dismissed – Writ of possession issued – Writ of possession to lie in the Registry for twenty-eight days, pending further order. |
| Family Law Act 1975 (Cth) s 80(1)(k) |
Kollmorgan & Kollmorgan (1984) FLC 91-551
Liu & Guo (No.2) [2007] NSWSC 288
| APPLICANT: | Mr Demopoulos |
| RESPONDENT: | Dr Fullard |
| FILE NUMBER: | SYC | 2390 | of | 2015 |
| DATE DELIVERED: | 21 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 21 December 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harper |
| SOLICITOR FOR THE APPLICANT: | McDonell Milne Toltz Family Lawyers |
| FOR THE RESPONDENT: | Dr Fullard in person |
Orders
The respondent wife’s oral application made to the Court today to deal with matters concerning parenting is dismissed.
The respondent wife’s application to set aside the Orders made by Justice Le Poer Trench on 18 November 2015 is dismissed.
That a Writ of Possession (“the Writ”) issue forthwith in the following form:
“To the Marshall of the Court, to all Officers of the Federal Police and to all Officers of the Police Force of the State of New South Wales:
1.Whereby in an Order of this Court made at Sydney on 18 November 2015 (“the Order”) it was ordered that [Dr Fullard] should, within 21 days of the date of service of the Order upon her, do all acts and things necessary to vacate the premises situated at [G Street, Suburb E] in the State of New South Wales, and whereas the Court is satisfied that service of the Order was effected on [Dr Fullard] on Monday 23 November 2015 and that the said [Dr Fullard] has failed to comply with the Order, you are hereby directed for the purpose of giving effect to the Order, at such time with such assistance as you may require, and if necessary by force, to enter the property and cause the husband, [Mr Demopoulos], to have vacant possession for the purpose of effecting the sale of it, and to cause the wife, [Dr Fullard], to vacate the said property.”
The Writ is to lie in the Registry at Sydney for a period of twenty-eight (28) days from the date of this Order and is not issue from the Registry without further Orders of a Judge of the Court.
An Application for the Writ to issue may be made on an ex parte basis to a Judge in Court or in chambers.
The Writ is to cease to have effect twelve (12) months after the date of issue.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Demopoulos & Fullard (No. 2) 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 SYDNEY |
FILE NUMBER: SYC 2390 of 2015
| Mr Demopoulos |
Applicant
And
| Ms Fullard |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The matter before the Court today concerns an application by the wife to set aside orders made by Le Poer Trench J on 18 November 2015 for her to vacate the former matrimonial home and also an application by the husband to seek the issue of a writ of possession in respect to the former matrimonial home, which is located at G Street, Suburb E (hereafter “the Suburb E Property”). Before considering the application by the husband for a writ of possession, I invited the wife to address me as to why the orders of Le Poer Trench J should be set aside.
The background to those orders were as follows:
·On 24 June 2015, Senior Registrar Campbell made interim orders in respect to parenting and property.
·The orders in respect to property matters were made by consent and relevantly provided that the parties, on or before 1 August 2015, do all acts and things and execute all documents necessary to sell the Suburb E property.
·The orders for the sale of the Suburb E property also included eight related orders to facilitate the sale. Those consent orders provided for the parties to be each paid $50 000 from the net proceeds of sale with the balance to be held in a controlled monies account.
By Application in a Case filed on 20 October 2015 the husband sought orders, pursuant to section 106A of the Family Law Act 1975(Cth) (“the Act”), empowering the Registrar to sign, on behalf of the wife, all documents necessary to effect the sale of the Suburb E property or, in the alternative, that the husband be appointed trustee for the sale of the Suburb E property. The Application in a Case was listed for hearing before Le Poer Trench J on 18 November 2015. The wife was not in attendance at that hearing. His Honour was, however, satisfied that the wife had been served with the relevant Court documents and made orders which relevantly included the following:
2. That the Husband in his capacity as trustee for the sale, do all acts and things necessary to cause the Home to be sold, and in particular shall:-
(a) list the Home for sale with such real estate agent as he shall determine;
(b) list the Home for sale by private treaty or public auction as he may be advised;
(c) list the Home for sale at an offering price or a reserve price to be determined by him;
(d) retain such solicitor as he shall determine to act on the sale of the Home;
(e) enter into a Contract for Sale in such terms as advised by the solicitors acting upon the sale;
(f) execute the Contract for Sale;
(g) execute all other documents necessary to complete the sale;
(h) upon completion of the sale of the Home, cause the proceeds of the sale to be distributed in accordance with the provisions of Order 15.2 of the Orders made on 24 June 2015.
That partial distribution of the net proceeds was, as indicated, for payment of $50 000 to each party and for the balance to be held in a controlled monies account, after payment of necessary expenses related to the sale. The orders also included an order that:
3. …within twenty one (21) days of the date of service of this Order upon her, the Wife do all acts and things necessary to vacate the home and give vacant possession hereof to the Husband.
His Honour, however, granted leave for the wife to make an application to set aside the order. Specifically, his Honour granted:
3. … liberty to the wife to apply on short notice to set aside the orders made today provided such application is made within 14 days of service upon her of these orders.
On 7 December 2015, by way of letter dated 6 December 2015, the wife sought to set aside the orders. In support of her application, the wife advanced the following arguments in a further letter dated 19 December 2015:
1. Despite my regular attempts to discuss the matter with my husband, he has refused to engage with me in any discussion pertaining to our jointly owned home. As I have informed my husband’s lawyer, I would like to attend a mediation session to discuss the matter with my husband so that it can be fairly resolved.
2. As I communicated to the court on December 14, I hold serious concerned for my son’s welfare. In a letter to McClelland J dated December 17, I updated those concerns following reports I made to Child Protection and the [Suburb E] Police… I was informed by [Acting Sergeant O] on December 18 that the matter has been referred to the Child Wellbeing Unit who would refer it to the Family and Community Services. I do not believe it is safe for my son to be alone in his father’s care while this matter is being investigated. Selling the family home and placing my son in an unfamiliar environment during this time could have negative impact on my son’s emotional wellbeing.
3. Prior to our separation in February of this year, my husband informed me that his mother was planning to distribute the family’s substantial assets to her children so she could rely on a pension for her living expenses. My husband informed me that his mother had discussed the matter in some detail with her lawyer. My husband has not, however, informed me of the outcome of those discussions. It is of the utmost importance that the current status of my husband’s financial and property assets be ascertained before proceeding with mediation in relation to the distribution of property. Once a clear picture has been obtained, I will be in a strong position to purchase a family home in order to provide continuity and stability for my son.
With the greatest respect to the wife, those arguments are not sufficient to justify setting aside the orders of Le Poer Trench J made on 18 November 2015. His Honour’s orders were made with a view to enforcing the orders made by the Court on 24 June 2015. As noted, those orders were made by consent. No argument has been presented today that the consent orders were entered into as a result of duress, undue influence, or unconscionable conduct, or that the wife was without appropriate legal advice.
The Court expects parties to comply with its orders including those made by consent. The orders made by Le Poer Trench J were made by His Honour as a result of the wife’s non-compliance with the orders made on 24 June 2015. The wife has not provided a reasonable basis for setting aside those orders and, on that basis, I will dismiss the wife’s application to set aside the orders made by Le Poer Trench J on 18 November 2015.
The second matter before the Court concerns an application for enforcement of the consent orders for the sale of the Suburb E property, pending final hearing of the substantive proceedings relating to parenting and property matters. The final hearing is listed for four days commencing on 26 April 2016. Earlier in these proceedings today, I dismissed the wife’s application to set aside the orders of Le Poer Trench J made on 18 November 2015. I outlined the nature of those orders, including the fact that his Honour had listed the husband’s application for the issue of a writ of possession for hearing today.
It is noted that the orders made by Le Poer Trench J were served on the wife on 23 November 2015. On 26 November 2015, McDonell Milne Toltz Solicitors, the solicitors for the husband, wrote to the wife giving her notice that the wife was required to vacate the Suburb E property on or before Monday 14 December 2015 and attached a copy of a proposed writ of possession.
In the period subsequent to receiving the letter from McDonell Milne Toltz, the wife sent several text messages to the husband attempting to achieve reconciliation and to discuss a resolution of the issues between them without the intervention of a third party. It remains the case, however, that the wife has failed to vacate the Suburb E property in terms of the orders made by Le Poer Trench J on 18 November 2015.
The wife has expressed her opposition to the Court issuing the writ of possession order, and she has done so for the following reasons;
(1) The wife wants the matter referred to mediation to be resolved between the parties;
(2) The wife believes it is difficult to resolve the matters concerning the sale of the property without engaging in discussion with the husband concerning matters such as; how to leave the property, how to prepare for sale and how to deal with the contents including their son’s, [B], belongings.
(3) The wife also submitted that the Court should have regard to the impact of the proposed sale on [B].
(4) The final point made by the wife was that she would like to purchase the property. In that respect the wife indicated that she will not be in a position to make such arrangements until she ascertains the husband’s asset position.
The wife acknowledged that the child has been living with the husband in rental accommodation since Johnston J made orders for the child to live with the husband on 24 September 2015. The wife also acknowledged that the orders made by Senior Registrar Campbell on 24 June 2015 for the sale of the property were made by consent.
In terms of the relevant law, counsel for the husband referred to Kollmorgan & Kollmorgan (1984) FLC 91-551 where Elliot J held that section 34(1) of the Family Law Act (1975) (“the Act”) authorised the Court to issue appropriate writs and orders to cope with circumstances not envisaged by the Family Law Rules, including the issue of a writ of possession where a party refuses to comply with an order to vacate the former matrimonial home.
Also, in Liu & Guo (No.2) [2007] NSWSC 288, Brereton J held that the Supreme Court of New South Wales had jurisdiction to issue a writ of possession in respect of proceedings under the Property (Relationships) Act 1984 (NSW). Significantly, in finding the existence of that power, Brereton J noted that the Supreme Court had broad powers pursuant to section 38(1)(k) of the Property (Relationships) Act, which relevantly empowered it to “make any other order or grant any other injunction (whether or not of the same nature as those mentioned in the preceding paragraphs) which it thinks is necessary to make to do justice”.
It is noted that section 38(1)(k) of the Property (Relationships)Act substantially replicates section 80(1)(k) of the Family Law Act. The Court has, on a number of occasions, issued writs of possession.
It is significant that the interim property orders made on 24 June 2015 reflected a consent minute of order signed by each of the parties, which was marked as Exhibit 5 in those proceedings. As I have previously indicated, once entered, the Court expects parties to comply with the orders of the Court. The reasons advanced by the wife for failing to comply with the orders of the Court are, with respect, without merit.
The wife has every right to seek a mediated resolution of the issues being considered by the Court in these proceedings. However, the interim property orders were considered and discussed between the parties and orders were made to reflect their agreement at that time. The fact that the wife’s position has altered since does not change the fact that she voluntarily entered into an agreement at that time which was reflected in the orders made by Senior Registrar Campbell. Those orders are enforceable by the Court on the application of the party who seeks to enforce them.
Counsel for the husband noted that this matter is being considered a few days before Christmas and appropriately acknowledged that there may be difficulty in the wife obtaining alternative accommodation over the Christmas period. In those circumstances, counsel for the husband submitted that it may be appropriate for the Court to provide for the writ of possession to lie in the Registry for a period of time. It was submitted that approximately 21 days would be appropriate as it reflected the time specified by Le Poer Trench J in his orders made on 18 November 2015 for the wife to vacate the Suburb E property.
In conclusion, the orders made by Le Poer Trench J on 18 November 2015 were appropriate in circumstances where an application was made to enforce the consent orders made by Senior Registrar Campbell on 24 June 2015 following the wife’s non-compliance with those orders. The wife is not entitled to simply fail to comply with an order of the Court because she has changed her position since those orders were made.
The wife has indicated a desire to purchase the property. Nothing in these orders will prevent the wife from being able to purchase of the property at fair market value, and she is free to obtain appropriate advice in respect to that.
As the Court is considering this matter several days before Christmas, I agree with counsel for the husband that it is appropriate for the writ of possession to lie with the Registry for a period of time. I note that a period of twenty-one days was proposed by counsel for the husband. In light of the intervening Christmas period, however, I consider that a period of 28 days is more appropriate. I will therefore make the writ of possession order on that basis.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 21 December 2015.
Associate:
Date: 22.01.2016