Dorfer and Dorfer

[2009] FamCA 893

FAMILY COURT OF AUSTRALIA

DORFER & DORFER [2009 ] FamCA 893

FAMILY LAW – ENFORCEMENT – Penalty clause

APPLICANT: Mr Dorfer

RESPONDENT: Ms Dorfer

FILE NUMBER: SYF 2189 of 1991

DATE DELIVERED: 2 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: STEVENSON J

HEARING DATE:

9 & 10 July 2009

17 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Anne Day & Associates

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: David H Cohen & Co

Orders

1. That the application of the wife filed on 14 November 2006 is dismissed.

2. That both parties do all things and execute all documents required to authorise David H Cohen & Co. to distribute the funds held on trust for them in Commonwealth Bank account number … as follows:

   2.1in payment of the sum of $165,624 to the husband

   2.2in payment of the balance to the wife.

3. That all outstanding applications and responses are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Dorfer & Dorfer is approved pursuant to s 121(9)(g) of the Family Law Act 1975(Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2189 of 1991

MR DORFER

Applicant

And

MS DORFER

Respondent

REASONS FOR JUDGMENT

the proceedings

1. On 31 May 1993 Mr Dorfer and Ms Dorfer entered into consent orders for settlement of their property.  In summary, these provided as follows:

   ·    The wife and the two children of the marriage to live in the former matrimonial home until the younger child attained 18 years of age or became self supporting, whichever event first occurred (“the triggering event”)

   ·    The husband to continue to pay the mortgage on the property, in lieu of child support

   ·    The wife to pay outgoings on the property including “rates, taxes, stamp duties, house insurance, et cetera”

   ·    upon the triggering event,  the parties to sell the property and divide the net proceeds as to 65% to the husband and the balance to the wife

   ·    for the period between the triggering event and the sale of the property, the wife to pay an amount described as “rent”, in a sum equivalent to “0.15% of the market value of the house”.

2. The younger of the parties’ two children, their son, turned 18 in January 2005.  Contracts for sale of the property were exchanged in November 2006 and settlement took place in February 2007.

3. On 13 September 2006 the husband filed an application for an order pursuant to section 106A, to appoint a Registrar to execute all documents necessary to effect the sale of the property on behalf of the wife.  On 31 October 2006 he filed an amended application seeking orders “by way implementation of the consent orders made on 31 May 1993”.  Specifically he sought that the wife pay the outgoings on the property and “rent” for the period from 17 January 2005 to the settlement of the sale.  Any such unpaid amounts would be deducted from the…