ETIHAF & ETIHAF

[2015] FamCA 328

FAMILY COURT OF AUSTRALIA

ETIHAF & ETIHAF [2015] FamCA 328

FAMILY LAW - PROPERTY - INTERIM

APPLICANT: Ms Etihaf

RESPONDENT: Mr Etihaf

FILE NUMBER: SYC 5127 of 2012

DATE DELIVERED: 20 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 20 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Birchgrove Legal

COUNSEL FOR THE RESPONDENT: Ms Breeze

SOLICITOR FOR THE RESPONDENT: V L Macri Lawyers

Orders

1. Within a period of 28 days the husband comply with orders 1(b) and (c) made 27 June 2014.

2. Within the next 28 days, the wife is to sign all documents tendered to her for her to provide the property at B Street, Suburb C as security for a loan to the husband by a financial institution of an amount of $140,000.

3. Should the husband not comply with order 1 within 28 days, the provisions of orders 2 and 3 made 27 June 2014 shall have full force and effect and both parties are to comply with the terms of those orders. I note that order 2 made 27 June 2014 would then require the husband to forthwith vacate the property and would entitle the wife to occupancy of the property and also entitle the wife to sell the property.

4. Liberty granted to either party to restore the matter on short notice before me in respect of implementation of these orders.

5. Both parties’ costs for today be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Etihaf & Etihaf 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 5127 of 2012

Ms Etihaf

Applicant

And

Mr Etihaf

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, orders were made by the Federal Circuit Court on 27 June 2014 in the following terms:

   (1)    That the husband pay to the wife, without admissions and on an interim basis, the sum of $150,000, payable as follows:

   a) $10,000 within seven days;

   b) $90,000 within a further 21 days;

   c) $50,000 by 4 pm on 30 September 2014

   (2)    That in the event that the sums referred to in order (1) are not paid by the dates required, the husband shall immediately following upon default, vacate the property at B Street, Suburb C, and the wife shall be entitled to occupancy thereof and shall have the right to occupy the property or sell it at her discretion.

   (3)    In the event that the wife elects to sell the said property, she shall do so as follows:

   a)Sell by auction or private treaty for the best price reasonably obtainable;

   b)Distribute the proceeds of sale as follows

   i.in payment to herself of any amount due pursuant to order (1).

   ii.The balance into a controlled money account in the name of her solicitor, to be held pending resolution by court order.

2. It is common ground that the order referred to in order 1(a) was complied with by the husband but that the payments required by order 1(b) and 1(c) were not paid.  The husband currently lives in the Suburb C property and has continued to reside there since the orders were made.

3. Before me today, by way of application in a case, the wife seeks orders in the following terms:

   3.1.Within seven days from the date of these orders, the respondent husband shall vacate the property at B Street, Suburb C (the property). 

   3.2.Provide the applicant wife’s solicitor with all keys for the property; and

   3.3.Do all things necessary to withdraw the caveat that he has lodged against the property.

4. The husband has filed a response to that application in a case seeking the wife’s application be dismissed and in his response he seeks an order that the wife transfer the property to him or, in the alternative, the wife be restrained and injuncted from encumbering the property in any way or dealing with the property in any way, including transferring the property to a third person and a further order that he be entitled to sole occupancy of the property to the exclusion of the wife.  He seeks an order that orders 1 to 5 of 27 June, including the ones to which I have just referred, be discharged.

5. It is unclear to me as to why the husband would want order 5 discharged as it relates to a matter of discovery. 

6. The husband, with leave, amended his application today to seek an order, in addition to the primary order that the Suburb C property be transferred to him; that he forthwith thereafter do all things necessary to transfer to the wife an amount of $100,000 (he does not say from where and I assume he means pay the wife) within six weeks of the wife transferring the Suburb C property to him and that the husband be at liberty to encumber the property for the purpose of complying with the orders.

7. There is no other order sought that would restrain the husband from further encumbering the property at Suburb C once it is solely in the husband’s name.  The husband says, at paragraph 21 of the affidavit that he filed on 6 March 2015, that he was originally forced to put the Suburb C property into his wife’s name because he was scared of his father-in-law and the husband knew him to be a violent and strict man. 

8. In the financial statement that the husband filed on 9 November 2012, when asked to set out the loans that he owed third parties, he indicated that the amount of those loans was nil and he swore that financial statement on 8 November 2012. At paragraph 52 of his March 2015 affidavit, the husband says that at the time he entered into the consent orders, it was his belief that he had an indebtedness to his brothers and his father in the region of $450,000.  He says he now, having made inquiries of his brothers and father, believes he owes them about $747,000.  How all that stacks up will be a matter that shall be further explored by the trial judge.  In relation to the circumstances of him entering into the consent orders, he sets out in paragraph 52 of his March 2015 affidavit what he says happened that led him to agreeing to these consent orders.  He says:

   I became aware at the mother’s hearing on her application in a case to sell the property which was heard on 27 June 2014, that the property which I seek to retain may be at risk of sale by court order.  I therefore agreed, by consent, to pay the mother the sum of $150,000 over a 3 month period in order to protect the property from sale.  When I was at court on 27 June 2014, I was not certain of the means by which I would raise those funds, which is why I directed my legal representatives to ensure that I had 3 months’ window in which to raise the funds.

9. Pausing there, that evidence alone points to the husband seeking to delay proceedings by at least three months so that he wouldn’t have a sale order made against him immediately on 27 June 2014.  Continuing with paragraph 52:

   I recall that when I was at court, there was a lot of urgency to the proceedings as there was an urgent interim hearing being conducted that afternoon and Her Honour Justice [sic] Walker indicated that the parties had a very limited time to talk before the case would be brought on.  I also recall that I had not filed a formal response to the mother’s application at that time.  I did not have sufficient time to carefully consider how I would raise the funds but I was in a state of some panic as I was worried about the property being sold.  This was in circumstances where [Ms Etihaf] had previously tried to sell the property and I had urgently had to lodge a caveat to prevent that occurring.  I depose to those matters in my affidavit of 8 November 2012 and above, and I annex to that affidavit a transfer in relation to property signed by [Ms Etihaf].  I also believe on 27 June 2014 that my and [Ms Etihaf’s] indebtedness to my brothers and my father was in the region of $450,000.  I now know that to be incorrect.

10. At paragraph 60 of the same affidavit, the husband says:

    The property is a home that the children have known all their lives and which has enormous sentimental value for me.  I am determined to retain the property.

11. At paragraph 64, he says:

    If the property is transferred to me, I am confident that I will have the ability to encumber the property in order to satisfy any property adjustment order made between the wife and myself. 

12. I have evidence that the second-eldest child of the marriage resides with the husband on this property, and since some orders were made that time not be supervised, the two younger children were staying overnight on at least one occasion a fortnight at this property.  The husband in submissions wanted to argue the merits of his final property application.  He pointed to the wife’s current employment and the financial resource that she has by way of contributions now made by her present husband.  He argues that when the debts of his brothers and father are taken into account, there will be virtually no assets of the parties to which any property settlement order could be the subject. 

13. He did make an application previously to discharge the orders that were made on 27 June 2014.  That was done by way of application in a case filed on 15 July 2014.  That application, however, was dismissed by consent on 12 December 2014. 

14. It is reasonably clear to me from those passages that I’ve read out that the husband has set himself pretty much from the outset not to comply with the June 2014 court order and has attempted to delay the implementation of the order for as long as possible, and certainly to resist, to use his words, “with determination” any thought that the property might be sold. 

15. The wife in my view is entitled to ask the Court to assist her to have the husband comply with the order.  Taking a practical approach, however, there should be some further grace extended to the husband.  During discussions in submissions, I mentioned a middle course which would allow the husband one further opportunity to raise the funds to comply with the order.  That would not, however, be on the basis that the Suburb C property gets transferred to him in order for him to attempt to raise the funds.  The wife has indicated that she would agree to offer the property, which is registered in her sole name, as security for a borrowing of $140,000.  The wife’s agreement to offer Suburb C as security will be crafted into the order that I intend to make.

I certify that the preceding fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 20 April 2015.

Associate:

Date:  5 May 2015