FRANTZ & BRAYS

[2015] FCCA 2500

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRANTZ & BRAYS [2015] FCCA 2500

Catchwords:
FAMILY LAW – Property – consent orders – enforcement of orders – memorandum of transfer – execution of transfer by Registrar.

Legislation:
Family Law Act 1975 (Cth), ss.106A, 117

Federal Circuit Court Rules 2001, Part 1, sch. 1

Applicant: MS FRANTZ

Respondent: MR BRAYS

File Number: PAC 1236 of 2007

Judgment of: Judge Scarlett

Hearing date: 6 July 2015

Date of Last Submission: 6 July 2015

Delivered at: Sydney

Delivered on: 6 July 2015

REPRESENTATION

Solicitor for the Applicant: Ms Barker

Solicitors for the Applicant: Marsdens Law Group

Respondent: No Appearance

ORDERS

1. The Registrar of the Court is appointed, pursuant to section 106A of the Family Law Act, to execute in the name of the Respondent, Mr Brays, also known as Mr Frantz, a transfer of his right, title and interest in the property described in the terms of settlement being the property at Property C in the State of New South Wales.

2. The Respondent is to pay the Applicant’s costs as set out in Part 1 Schedule 1 of the Federal Circuit Court Rules.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

PAC 1236 of 2007

MS FRANTZ

Applicant

And

MR BRAYS

Respondent

REASONS FOR JUDGMENT

1. There is an application before the Court to appoint the Registrar of the Court to execute a memorandum of transfer in accordance with section 106A of the Family Law Act.

Background 

1. The matter has quite a lengthy history, as the parties entered into consent orders, resolving the property matters between them at the Federal Magistrates Court at Parramatta, as it then was, on 8^th June 2007. Those orders required the Respondent to transfer to the Applicant his interest in a property at Property C.

2. It has taken the Applicant a considerable amount of time to be able to obtain sufficient funds to secure mortgage assistance so that she is in a position to comply with the orders but by 2013, she was in a position to do so.  Since 9^th August 2013, she has been attempting to persuade the Respondent to comply with his part of the Consent Orders, which will involve the execution of a memorandum of transfer. Annexed to her affidavit of 4^th March 2015, is a copy of a letter signed by the Respondent in response to a letter from the Applicant’s solicitors requesting him to execute the transfer as he was required to do under the court orders.

3. The response, by way of the letter, is unsigned and undated.  The contents of it are curious, to say the least.  The Respondent denies any responsibility for these consent orders, or his part in them, notwithstanding the fact that he was legally represented by a solicitor at the time.  And indeed, a perusal of the minutes of consent orders shows what appears to be his signature, witnessed by his solicitor.  It is, therefore, strange, to say the least, that he should deny all knowledge of this legal document into which he entered after he had legal advice.

Conclusions

1. In my view, this is an appropriate case for an order to be made under the provisions of section 106A of the Family Law Act 1975 (Cth) to empower the Registrar of the Court to execute a deed or instrument, in this case a memorandum of transfer in the place of the party who has been requested to do so but has defaulted.

2. It is also appropriate, in my view, that an order for costs should be made in accordance with the scale set out in Part 1 of schedule 1 of the Federal Circuit Court Rules. The Application is brought about by the failure of the Respondent to comply with an earlier Order of the Court, which is one of the matters specifically referred to in s.117(2A) of the Family Law Act 1975.  

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  14 September 2015