Ernesta & Ernesta
[2023] FedCFamC2F 1753
•11 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ernesta & Ernesta [2023] FedCFamC2F 1753
File number: MLC 5356 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – Application for enforcement – whether application to sell former home is really an application for enforcement or the making of consequential or machinery orders – application granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.16(3), Ch 11. Cases cited: Olsson & Olsson [2022] FedCFamC1A 129 Division: Division 2 Family Law Number of paragraphs: 37 Date of hearing: 11 December 2023 Place: Melbourne Counsel for the Applicant: Ms Drew Solicitor for the Applicant: Intouch Legal Centre Advocate for the Respondent: In Person ORDERS
MLC 5356 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ERNESTA
Applicant
AND: MR ERNESTA
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant Wife has permission to pursue her application on an undefended basis as contemplated under Rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2.The real property situated at and known as B Street, Suburb C, in the state of Victoria, more particularly described as Certificate of Title Volume … Folio … ('the Property'), be placed on the market for sale.
3.For the purpose of carrying into effect these Orders, the Applicant Wife is hereby appointed trustee for sale of the Property ('the Trustee').
4.The Respondent Husband must vacate the Property within 60 days of the date of these Orders.
5.Upon the expiry of 60 days from the date of these Orders, the Applicant Wife shall be entitled to exclusive occupation of the Property.
6.Upon the expiry of 60 days from the date of these Orders, the Trustee shall have the authority to conduct the sale of the Property and must promptly organise and conduct the sale of the Property as follows:
(a)either by public auction or by private treaty or a combination of both;
(b)with estate agents and/or auctioneers as elected by the Trustee;
(c)with a conveyancing service as elected by the Trustee;
(d)at a contract price and/or reserve price as determined by the Trustee;
(e)to sign all documents as are necessary to cause the sale of the Property, including but not limited to, agency agreements, auctioneer agreements, conveyancing costs agreements, contracts for sale and Transfers of property; and
(f)with the Trustee to keep the Respondent Husband informed of decisions made in accordance with Orders 6(a) – (e) above.
7.The proceeds of the sale of the Property be applied as follows:
(a)firstly, to pay any mortgages and all costs and expenses of the sale;
(b)secondly to pay;
(i)50% to the Respondent Husband;
(ii)Subject to Order 8 herein, an additional sum of $20,000 ('the Additional Sum'); and
(iii)the balance to the Applicant Wife.
8.From the proceeds of the sale of the Property, the Applicant Wife pay to the Respondent Husband, an adjusting sum of $20,000 from her share of the proceeds. The Applicant Wife is entitled to cause the Additional Sum to be held in trust pending payment out of the costs of the removalist referred to in Order 9(b) herein, and any outstanding utilities or rates connected to the Property, and to then pay the balance of the Additional Sum to the Respondent Husband.
9.Should the Respondent fail to vacate the Property and provide the Trustee with exclusive occupation in accordance with Orders 4 and 5 of these Orders:
(a)The Marshall, all officers of the Australian Federal Police and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, be authorised and directed with such assistance as they may require, and if necessary, by force, to remove the Respondent from the Property to an address to be nominated by the Respondent or his Agent ('the Respondent's Address');
(b)The Trustee be authorised to engage the services of a removalist to remove and deliver the Respondent's possessions (if any remain in the property) to the Respondent's Address with the cost of this removal to be deducted from the Respondent's share of the proceeds of sale of the Property in Order 7(b)(ii) herein.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)[1]
JUDGE BLAKE
[1] Reasons were delivered orally on 11 December 2023. These settled reasons were prepared following a request by the Applicant on 29 February 2024.
This is an application by the Wife. She seeks orders that will enable her to give effect to final orders made between the parties on 18 September 2019 (‘the Final Orders’).
In the Final Orders, the Husband was required to pay the Wife the sum of $140,000 (‘the payment’). A failure to make the payment was to result in the sale of the property situated at B Street, Suburb C, with each party then receiving 50 per cent of the proceeds of sale, and with the Wife to make a further adjusting payment of $20,000 to the Husband.
The Husband has not made the payment required under the Final Orders. The Wife also says that the property was never sold. The Wife now seeks orders to give effect to the Final Orders, requiring the sale of the property and a division of the sale proceeds after costs and expenses of 50 per cent each, along with the making of an adjusting payment of $20,000 from the Wife to the Husband.
The Wife appeared before me represented by her solicitor, Ms Drew. The Husband appeared unrepresented by lawyers. Both parties required the assistance of an interpreter.
BACKGROUND
The Wife commenced these proceedings by filing an application for enforcement on 29 November 2022. The application was accompanied by a supporting affidavit. On 14 February 2023, the Husband filed a response. In it, he sought to be excused from particularising the final orders he sought. The response indicated that he sought an interim order that appointed Mr D, born in 1968, be appointed as his litigation guardian.
The matter came before a Judicial Registrar on 15 February 2023. At that hearing, the matter was adjourned until 29 March 2023. The Court noted that the Husband’s solicitor who appeared that day was of the view that her client required a litigation guardian, and that Ms D was willing to accept that role.
The matter next came before the Court on 28 March 2023. The matter was adjourned to a date not before 24 April 2023. The Court noted that the Husband had attended on Dr E for an assessment of his capacity, and that the report had not yet been received.
On 10 May 2023, the matter was back in Court, and the Husband’s solicitor was given leave to withdraw. Pursuant to the rule 3.16(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘Rules’), the Attorney-General was requested to appoint a person to manage the affairs of the Husband, with such manager to be appointed as litigation guardian. The Court noted that the Husband had been found in the report, on Dr E’s view, to require a litigation guardian. However, the Husband’s former lawyer who appeared amicus curae, advised that they had been unable to find a family member or friend willing to act as litigation guardian for the Husband.
The case returned to the Court on 19 June 2023. The Husband did not appear. The Court made orders that the matter be listed for financial enforcement hearing on 27 September 2023 before a Judicial Registrar. The Court made the following orders:
(a)that the Husband be legally represented on the next hearing date;
(b)that the Husband file and serve a Notice of Address for Service on 24 July 2023; and
(c)that the Wife serve on the Husband a copy of, among other things, previous orders made in the proceeding, as well as the Central Practice Direction.
On 27 September 2023, the matter was back before the Court, and the Husband did not appear again. The Judicial Registrar made orders listing the matter for a compliance and readiness hearing before the Chief Judge on 9 November 2023. The Court also made the following orders:
(a)that each party file and serve, seven days prior to the listing, any amended application or response; and
(b)the Wife serve on the Husband a sealed copy of the orders of that day, as well as a covering letter enclosing documents.
The Court noted that the matter had been listed for financial enforcement that day, that orders had been previously made regarding the appointment of a litigation guardian, that all avenues to secure a guardian had been exhausted, and that the matter required judicial intervention, given the Husband required a litigation guardian, given his age, and given that he has a disability.
The Court also noted it had been informed that the Husband had filed intervention order proceedings in Court, where the Husband had appeared without a litigation guardian, and where he had conducted the proceedings.
On 9 November 2023, at the compliance and readiness hearing, the Husband failed to appear again. The Chief Judge listed this matter to me for a one-day enforcement hearing on 30 November 2023.
The Chief Judge made the following orders:
(a)that the Wife serve on the Husband a list of the precise orders sought on a final basis, a copy of the orders made that day, and a letter explaining that, if he did not appear, the case would be determined in his absence;
(b)in the event the Husband did not appear, without reasonable excuse, the Court may proceed with the matter on an undefended basis;
(c)within 14 days of the date of this order, the Husband file and serve any amended response, and any supporting affidavit; and
(d)that the Court lodge a request with the Victorian Bar Pro Bono Barristers Court Referral Scheme in order for it to provide assistance to the Husband at final hearing.
On 30 November 2023, the parties appeared before me for final hearing. The Husband appeared unrepresented. After hearing from the Husband it became apparent that he could not understand me. I adjourned the matter, and an urgent interpreter was arranged for him. When the matter came back on with the interpreter, I dealt with three preliminary issues, being what I understood to be the Husband’s request for an adjournment, the Husband’s participation in the proceedings without representation, given issues with his mental health and his disability, and the Wife’s application to proceed undefended.
For the reasons given on the transcript on 30 November 2023, I declined the request for an adjournment, and determined that the matter should proceed that day notwithstanding the reports before the Court concerning the Husband’s mental health. Also, for the reasons given that day, I granted leave to the Wife to proceed on an undefended basis.
After explaining to the Husband the nature of the hearing, and the way in which it would run, the case commenced. The Wife was called to give evidence, and it became apparent that she could not understand the questions that were being asked of her, and required an interpreter. None had been arranged by her solicitor, and the matter had to be adjourned to 11 December 2023 to enable an interpreter to be engaged.
On 11 December 2023, the wife was re-sworn. The Wife relied on her affidavit affirmed 26 October 2023, her amended enforcement application filed 2 November 2023 (‘Application’), and various affidavits of service. She also relied on the affidavit of Mr D filed 14 February 2023, the affidavit of Ms F filed 14 February 2023, and the affidavit of Dr E filed 11 April 2023
The Husband did not file any material in accordance with trial orders. He had filed affidavits earlier from Mr D and his then solicitor, Ms F, and I have had regard to those.
In accordance with authority, I permitted the Husband to cross-examine the Wife, and to tender any documents, should he choose to do so.
APPLICATION BY THE WIFE
Before turning to the evidence, it is appropriate to consider the nature of the relief sought by the Wife, and whether the Court can grant it.
The Wife brought an application for enforcement, and the Chief Judge listed this matter for a hearing on enforcement. A close look at the relief sought by the Wife discloses that, substantively, what is really sought is not enforcement of existing orders for sale, but rather, for the Court to make consequential or machinery orders to enable a sale to take place.
The Application brought by the Wife, and the relief she seeks, does not neatly fit within the categories of relief that a party can obtain for enforcement when one has regard to chapter 11 of the Rules.
In Olsson & Olsson [2022] FedCFamC1A 129, Aldridge J, albeit in different circumstances, touched upon the issue that confronts me. Aldridge J discussed the ability of the Court to modify the machinery provisions of a property order at paragraphs [17]-[19] as follows:
[17]In McDonald and McDonald (1976) FLC 90-047 at 75,201, the Full Court identified the distinction between “those parts of an order which determine and vest property rights and those which provide for the machinery to carry out the order effectively”. The Full Court added:
In our view, there is ample power to modify the machinery provisions of a property order provided this does not affect the substantive property rights or cause undue hardship to either party.
[18]The Full Court returned to these issues in Ravasini and Ravasini (1983) FLC 91-312. The Court said at 78,126:
There is no question of the power of the Court to make what we would with respect suggest is more properly called a consequential order. The real questions are what is the proper definition of a consequential or machinery order and where is the dividing line between a consequential order which may be varied or modified and a substantive order which the Act gives no power to the Court to modify or vary.
[19] At 78,127, the Court said:
In determining whether or not an order may be varied as a machinery order, the enquiry must be firstly as to what part of the order is the substantive order and what part or parts of it merely follow that order as a necessary consequence. A Court in making a property order might do no more than order that the property be sold and the proceeds equally divided. That is the substantive order. If the Court at that time has before it sufficient evidence of the facts and circumstances it may go on and make appropriate “consequential” orders providing the machinery whereby the substantive order is to be carried out.
It is apparent, from what his Honour stated, that it is appropriate to make consequential or machinery orders where a Court has before it sufficient facts and evidence. There is also no doubt, given the statement of his Honour, that the Court has the power to make the orders now sought.
The Wife’s evidence is contained in her affidavit affirmed 26 October 2023, and is as follows:
(a)she is 60 years of age, and the Husband is 88 years of age;
(b)the parties met in 2002, were married in 2003, and there is one adult child of the relationship;
(c)in 2008, the Husband purchased the property at B Street, Suburb C. The property is registered in both the names of the Husband and the Wife;
(d)during the marriage, the Wife was subjected to severe family violence;
(e)the parties separated finally on 1 March 2017;
(f)that the Court made the Final Orders, which provided for, among other things, the Wife to be paid $140,000, the Husband to retain the property, and the Wife to withdraw the caveat on the property. If the Husband defaulted on the payment to the Wife, the property be sold, and after costs and expenses are paid, each party receive 50 per cent of the sale proceeds, and the Wife to pay an adjusting amount of $20,000 to the Husband;
(g)that pursuant to the Final Orders, the Wife arranged for the removal of the caveat, but the husband did not make the payment;
(h)that she made various requests seeking to follow up the payment from 2019 onwards. Those steps included correspondence with the Husband’s former lawyers, and correspondence with Mr D;
(i)that despite her various efforts, the Husband remains non-compliant with the Final Orders;
(j)that she has not sought to enforce the orders before now, because of COVID-19 and her own health issues;
(k)that she currently lives in Housing Commission accommodation in Suburb G, and receives Centrelink benefits;
(l)that she has an outstanding legal debt to her former lawyers of $20,000;
(m)that on 4 August 2023, the Husband made an application for an intervention order against her, and the intervention order was made on 11 August 2023;
(n)that in late 2023, there was an intervention order hearing at a Local Court. The Wife says she attended by video link, and the Husband attended and represented himself in Court in person, and was assisted by a duty lawyer and an interpreter; and
(o)that she was and remains under financial stress.
The Husband was given the opportunity to cross-examine the Wife. No effective challenge was made to the Wife’s evidence. I therefore accept all of her evidence.
The Husband filed two earlier affidavits in this proceeding. Neither of those affidavits deals substantively with why there has been non-compliance with the Final Orders.
The Husband, of course, has no evidence-in-chief before the Court. He told me in submissions various things, including that he had been a victim of corruption. He asserted, as best as I can understand it, that he had been forced to sign the Final Orders and that he did not understand them. The Husband also told me that the Wife had assets of several million dollars in Country H. In respect of this last matter, I understand the Husband to be saying that those assets had not been disclosed. He also made a range of other assertions of no relevance to the present proceeding.
On the question of whether the Husband was somehow misled or did not understand the Final Orders, and also on the question of whether the Wife has not disclosed property in Country H which was not taken into account in 2019, I note the following:
(a)the Husband was represented by Mr Arnold of Counsel in 2019. He therefore had the benefit of competent representation then;
(b)the Wife has disclosed correspondence in her affidavit affirmed 6 October 2022. That correspondence discloses that as long ago as that time the Husband said he was going to apply to reopen the case because of new evidence in Country H. Despite over one year having passed, he has not done so;
(c)the Husband has had ample opportunity to bring any competing application to this Application. He has not done so; and
(d)the Husband has had ample opportunity to file trial material in relation to this matter. He has not done so.
In all of these circumstances, the contentions of the Husband amount to nothing more than assertion without evidence. I do not accept those assertions, and, in any event, they do not explain the Husband’s failure to comply with the Final Orders, which remain in force and effect.
In view of the above mentioned matters I am satisfied that the Final Orders have not been complied with. In particular, I am satisfied that:
(a)the Husband has failed to pay the Wife the sum of $140,000 as required by order 5 of the Final Orders;
(b)the property has not been sold, nor the proceeds applied, as contemplated by order 9 of the Final Orders;
(c)because of the non-compliance with order 9, the Wife has not paid the adjusting amount as contemplated by order 10 of the Final Orders to the Husband;
(d)the Husband remains in the house; and
(e)the Final Orders need to be given effect to so that a just and equitable distribution of the property assets of the parties can be achieved. The Wife has waited long enough for that relief.
THE RELIEF SOUGHT
The orders sought by the Wife are contained in her Application. She seeks all of the orders set out in the Application as set out below:
1.That the real property situate at and known as [B Street, Suburb C], Victoria more particularly described as Certificate of Title Volume […] Folio […] (“the Property”) to be placed on the market for sale.
2.That for the purpose of carrying into effect these orders, the Applicant is hereby appointed trustee for sale of the Property (“the Trustee”).
3.The Respondent shall vacate the property within 60 days of the date of these orders.
4.The [sic] upon the expiry of 60 days from the date of these orders the Applicant shall be entitled to exclusive occupation of the property.
5.That after the expiry of 60 days from the date of these orders the Trustee shall have the authority to conduct the sale of the Property as follows:
(a) Either by public auction or by private treaty or a combination of both;
(b) with estate agents and/or auctioneers as elected by the Trustee;
(c) with a conveyancing service as elected by the Trustee;
(d) at a contract price and/or reserve price as determined by the Trustee;
(e)to sign all documents as are necessary to cause the sale of the property including but not limited to agency agreements, auctioneer agreements, conveyancing costs agreements, contracts for sale and Transfers of property.
(f)with the Trustee to keep the Respondent Husband informed of decisions made in accordance with orders 5(a)-(e) above.
6.That the proceeds of sale of the Property be applied:
a)Firstly to pay any mortgages and all costs and expenses of the sale;
b)Secondly to pay:
(i) 50% to the Respondent Husband;
(ii)Subject to Order 7 herein an additional sum of $20,000 (“the Additional Sum”) in compliance with Order 7 herein.
(ii) the balance to the Applicant Wife.
7.That from the proceeds of the sale of the Property the Applicant Wife pay to the Respondent Husband an adjusting sum of $20,000 from her share of the proceeds. The Applicant Wife is entitled to cause the Additional Sum to be held in trust pending payment out of the costs of the removalist referred to in Order 8(b) herein and and [sic] any outstanding utilities or rates connected to the property and to then pay the balance of the Additional Sum to the Respondent Husband.
8.That should the Respondent fail to vacate the property and provide the Trustee with exclusive occupation in accordance with Orders 3 and 4 within 60 days of the date or these Orders:
(a)That the Marshall, all officers of the Australian Federal Police and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia be authorised and directed with such assistance as they require and if necessary by force to remove the Respondent from the Property to an address to be nominated by the Respondent or his Agent (“the Respondent’s Address”).
(b)That the Trustee be authorised to engage the services of a removalist to remove and deliver the Respondent's possessions (if any remain in the property to the Respondent's Address with the cost of this removal to be deducted from the Respondent's share of the proceeds of sale of the Property in Order 6(b )(ii) herein.
9.That the Respondent Husband pay the Applicant Wife’s costs of these proceedings.
10.Any further Orders this Honourable Court deems appropriate.
Orders 1 to 5 are machinery in nature, enabling the Wife to occupy the property, evict the Husband and effect the sale of the property. The Court has the power to make these orders and it is appropriate to make them in order to give effect to the just and equitable division of property that ordered to occur in 2019.
Orders 6 and 7 in the Application deal with the distribution of sale proceeds. These orders largely mirror the Final Orders, save that from the adjusting payment of $20,000 that the Wife is to pay the Husband, the Wife be permitted to pay removalist costs and outstanding rates and utilities on the property that has been occupied by the Husband. It is appropriate that the Wife recover these costs, given that she has been put through the expense of bringing these proceedings to enforce the Final Orders, and given the Husband’s non-compliance with those orders. This does not, in my view, alter the outcome as being anything other than just and equitable.
Order 8 is an order for the Australia Federal Police to remove the Husband from the property if he does not move. Given he has been at that address for approximately four years and has been non-compliant with the previous orders for that long, it is appropriate to make the order so the Wife can receive the satisfaction of her property entitlements.
Accordingly, I will make orders 1 to 8 of the Application, which ensures that the Wife receives her share of the property under the Final Orders.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 14 March 2024