E and E

[2003] FMCAfam 148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

E & E [2003] FMCAfam 148

FAMILY LAW – Contravention – Consent property orders – Wife’s own caveat prevents her compliance – no reasonable attempt to comply – judgment creditor’s estate or interest in land.

Family Law Act 1975 (Cth) ss. 112AB, 112AD
Land Titles Act 1980 (Tas) ss. 3, 49, 58, 133, 134

Hall v Richards (1961) 108 CLR 84

Applicant: M E E

Respondent: J P E

File No: LNM 1202 of 2003

Delivered on: 8 May 2003

Delivered at: Hobart

Hearing date: 29 April 2003

Judgment of: Roberts FM

REPRESENTATION

Counsel for the Applicant: Ms Gibson

Solicitors for the Applicant: AT Legal

Counsel for the Respondent: Mr Paterson

Solicitors for the Respondent: Kim Paterson & Associate

ORDERS

1. That the Court declares that J P E (“the Wife”) has without reasonable excuse contravened Order No. 1 of the Orders of the Family Court of Australia of 25^th November 2002 bearing number HBF10 of 2002 (“the Orders”).

2. That within seven days the Wife enter into a bond without surety or security to comply with her obligations under the Orders within a further 14 days.

3. That the Wife forthwith instruct her solicitors to withdraw Caveat No. C429757 within fourteen days to enable the registration of transfers provided by her in relation to the land comprised and described in Certificates of Title Volume 217139 Folio 1 and Volume 60927 Folio 18.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

LNM 1202 of 2003

M E E

Applicant

And

J P E

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Before the Court is a Form 48 Contravention Application filed by M E E (“the Husband”) on 26^th March 2003.  The Respondent is J P E (“the Wife”).

2. On 25^th November 2002 Orders were made by consent in the Family Court of Australia (“the Orders”) that were intended by the parties to be in full and final settlement of their rights and claims for property settlement.

3. The first order required the Wife to:

   “transfer to the husband all that her right, title and interest”

   in one property at Nabowla and two properties at Scottsdale in Tasmania.  The Order gave the addresses of each of those properties and the details of each Certificate of Title.

4. The second order required the Husband to provide the Wife, contemporaneously with those transfers, a discharge of her liabilities pursuant to all mortgages registered over the properties and required him to pay and indemnify her in relation to the payment of all rates, taxes and other outgoings in relation to those three properties.

5. The third order required the Husband to pay to the Wife’s solicitors:

   “for and on behalf the wife the sum of $30,000 as follows:

   (a)contemporaneously with the transfers referred to in Order No. 1 hereof:

   (i)the sum of $18,800 by bank cheque payable to the said solicitors;

   (ii)by delivery to the Wife of:

   (1)     a duly registrable transfer of the husband’s interest in 800 Telstra shares held jointly…