Donovan & Bath

[2024] FedCFamC1F 867

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Donovan & Bath [2024] FedCFamC1F 867  

File number(s):	CAC 1082 of 2024
Judgment of:	GILL J
Date of judgment:	16 December 2024
Catchwords:	FAMILY LAW – PROPERTY – Overseas divorce agreement – Where the husband consents to property orders transferring real property to the wife – Where despite purported willingness the husband has not effected the transfer of real property – Where the wife seeks orders to effect the divorce agreement and subsequent judgment made in overseas enforcement proceedings – Orders made to effect the transfer
Legislation:	Family Law Act 1975 (Cth) s 106A, 114
Cases cited:	Yadu & Orjit [2022] FedCFamC1A 79
Division:	Division 1 First Instance
Number of paragraphs:	3
Date of hearing:	16 December 2024
Place:	Canberra
Solicitor for the Applicant:	Ms Goh, Farrar Gesini Dunn
Solicitor for the Respondent:	Litigant in person

ORDERS

CAC 1082 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DONOVAN

Applicant

AND:

MR BATH

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	16 DECEMBER 2024

THE COURT ORDERS, BY CONSENT:

1.That forthwith the wife provide to the husband the mortgage discharge authority (“the authority”) required for discharge of mortgage registration dealing number … (“the mortgage”) to Australia and New Zealand Banking Group Limited (“the ANZ Bank”) secured against the property described in Certificate of Title Volume … Folio … Edition 4 and located at Section … Block … on Deposited Plan … in the Division of Suburb C more commonly known as B Street, Suburb C in Region F (“the B Street Property”).

2.Within 7 days of receiving the authority, the husband sign and return it to the solicitors for the wife.

3.That upon receipt of the signed authority by the wife’s solicitors the wife cause the authority to be lodged with the ANZ Bank, together with any required registration fee.

4.That forthwith upon the mortgage being discharged, the wife provide to the husband all documents required to be executed by him (or if the husband engages a conveyancing solicitor or agent, the wife invite the husband’s solicitor to a PEXA settlement workspace) to give effect to the transfer to the wife of all of interest in the Suburb C Property (“the transfer documents”).

5.Within 14 days of receiving the transfer documents, the husband sign and return them to the solicitor for the wife (or if he engages a conveyancer, do all things necessary to instruct his conveyancers to effect the transfer of the Suburb C Property via PEXA).

6.Should the husband fail to comply with the preceding orders the wife be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign on behalf of the husband all documents required to be signed by him pursuant to these orders.

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 Donovan & Bath has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. The parties to this application, both of Country D origin but with the wife a citizen of, and the husband a permanent resident of, Australia married in 1996, divorced late 2018.  During their marriage the parties acquired property in Country D, the United States of America and Australia. In late 2018 the parties signed a divorce agreement and filed it with the Marriage Registry of the Region E Civil Affairs Department.  Amongst other things, the terms provided for the transfer unencumbered of a property in Suburb C, Region F to the wife.  Although the loan has been paid out, the property has not yet been transferred.  The husband has not yet complied with a number of his obligations under the agreement in relation to the Suburb C property. 

2. The wife commenced enforcement proceedings in Country D where on 30 June 2022 the Court made orders for the discharge of the loan and transfer of the Suburb C property, or rather within the judgment acknowledged those obligations.  The husband communicated to the wife his willingness to comply on her preparation of the relevant documents.  He did not do so, and the wife commenced enforcement proceedings in Australia constituted by these proceedings.  The husband has again expressed his agreement to comply with the orders but has not yet done so.  The wife now seeks orders to effect the transfer as set out above.  The husband agrees to such orders being made.  A question arises as to the authority of this court to make such orders. 

3. The wife has identified, pursuant to the Full Court authority of Yadu & Orjit [2022] FedCFamC1A 79 that such proceedings fall within paragraph (e) of the definition of matrimonial cause which relates to proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship. Paragraph (e) is expressed in broad terms sufficient to encompass proceedings as here to enforce foreign obligations recognised by the court in Country D. Section 114 of the Family Law Act 1975 (Cth) then confers power to offer injunctive relief as it considers proper, including regarding the property of a party to the relationship. Here the agreement of the parties gives good reason to consider that the orders sought by the wife, which reflect both the terms of the divorce agreement at exhibit W1 and reflect the judgment of the court at exhibit W2 being the local Court points to the orders sought as being proper. The orders sought by the wife imposed minimal burden on the husband in affecting his obligations as described in the local Court judgment. The s 106A orders giving the wife liberty to execute documents on non-compliance by the husband are proper in the circumstances where repeated non-compliance by the husband has occurred in the face of his purported willingness. It is appropriate that the wife have that authority as it does not place the husband at risk and minimises the burden associated with the practicalities of the use of the conveyancing system. These orders finalise the proceedings between the parties.

I certify that the preceding three (3) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       17 December 2024