Fryer and Fryer

[2007] FamCA 573

FAMILY COURT OF AUSTRALIA

FRYER & FRYER [2007] FamCA 573

FAMILY LAW - WARRANTS - Application by husband for adjournment of a Warrant for Possession – Application refused in the discrete circumstances of the proceedings

Family Law Rules 2004

APPLICANT: Mrs Fryer

RESPONDENT: Mr Fryer

FILE NUMBER: MLF 1388 of 2005

DATE DELIVERED: 21 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT (NO. 1) OF: Guest J

HEARING DATE: 21 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Johns

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That the oral Application by the Respondent husband for an adjournment of the Form 2 Application in a Case filed by the Applicant wife on 23 April 2007 be dismissed.

2. That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1388  of 2005

Mrs Fryer

Applicant

And

Mr Fryer

Respondent

REASONS FOR JUDGMENT

1. I have before me a Form 2 Application in a Case brought by the wife in which she, as applicant, sought an order pursuant to rule 20.54 of the Family Law Rules 2004 that a Warrant for Possession be issued, authorising an enforcement officer to enter the property at C, in order to give possession of that property to her, being a person entitled to possession pursuant to orders of this court made on 15 December 2006 by Mushin J and subsequently varied by his Honour on 19 January 2007. That Application is supported by an affidavit filed by the wife.

2. I have also before me a helpful Case Outline prepared by Ms Johns, who appears on behalf of the wife.  A copy of the Case Outline Document was earlier this morning provided to the husband who requested the matter be stood down, which I did, in order to attend to other matters in the rather busy Judicial Duty List.  As I understand it, he has had the advantage of speaking to the Duty Solicitor.  Put simply, the husband seeks an adjournment of the wife’s Application.

3. There are a number of fundamental points to be made by way of background.  The wife commenced proceedings in this court on 19 April 2005 by filing a Form 1 Application for Final Orders which included an order for settlement of property.  On 9 August 2006, the matter was listed as a two-day final hearing before Mushin J which proceeded before his Honour on an undefended basis.  Judgment was reserved.  On 15 December 2006, his Honour handed down written reasons for decision and made orders for final settlement of property which included, amongst other things, that the husband surrender possession of the former matrimonial home at C to the wife by 15 January 2007.

4. In her affidavit in support of the Form 2 Application, the wife deposed that on 15 December 2006 the husband executed a Transfer of Land for that property and delivered the original Certificate of Title to her lawyers.  On 20 December 2006, the C property was transferred into her sole name.  It was only for the first time, so far as the matter was brought to my attention, that the husband made a submission from the bar table this day that he was “under duress” in signing the document of transfer.  Given the gravity of such an assertion, it could be reasonably assumed, if such was the case, that he would have deposed to such circumstances in response to this Application.  However, that is a mere observation on my part.

5. Returning to the background, the wife's solicitors wrote to the husband on 10 January 2007 advising him that in accordance with the relevant order made by Mushin J he was to surrender possession of the C property by 4 pm on 15 January 2007.  Apparently there was no response from the husband and/or his solicitor (the husband had engaged Forte Family Lawyers to act on his behalf).  The husband filed a Notice of Appeal against the orders made by Mushin J on 15 December 2006 and sought a stay of his Honour's orders.  The husband's Form 2 Application was listed before Mushin J on 15 January and adjourned to 19 January 2007.  On that day his Honour refused the husband's Application for a Stay of his order that the husband vacate the C property.  However, he did extend the time frame for the husband to vacate the property to 4 pm on 19 February 2007 and made an order in those terms.

6. In her affidavit filed on 23 April 2007, the wife deposed that she was advised by her lawyers that under cover of letter dated 24 January 2007 they received a Notice of Ceasing to Act from Forte Family Lawyers.  On 14 February 2007, they wrote directly to the husband, essentially advising him that pursuant to the orders made by Mushin J on 19 January 2007 he was to vacate the property by 4 pm on 19 February 2007.  They sought advice as to the date he intended to vacate the property so that arrangements could be made and also for the return of keys.  There was no response to that letter.

7. On 22 February 2007, the wife’s solicitor telephoned the husband to inquire if he intended to vacate the property.  She was informed by the husband that he was seeking legal advice.  On 14 March 2007, which was the day before the directions hearing for the Appeal, the wife's solicitors received a facsimile from the husband's newly engaged lawyers, Messrs Kennedy Wisewoulds, enclosing a Notice of Address for service which was filed by them on 8 March 2007.  On 22 March 2007, the wife's solicitors forwarded a letter to Kennedy Wisewoulds, advising them that pursuant to the time frame required by the orders made by Mushin J on 19 January 2007, the husband was to vacate the property on 19 February 2007.  They sought advice and confirmation that the husband had complied with the order.  There was no response to that letter either.

8. The wife deposed that on 29 March 2007 her solicitor sent a further letter to Kennedy Wisewoulds, advising that they awaited confirmation the husband had vacated the relevant property.  There was no response to that letter, and the husband has continued to fail to comply with the court order.

9. The husband appears in person this morning.  He has advanced nothing of any compelling or proper material to the requisite standard of persuasion to persuade me that I should adjourn this matter further.  In the course of his submissions, he said that he had this day been talking to “the State Prosecutors Office” and which involved very serious criminal charges.  Later in the course of his submissions he said those “serious criminal matters” involved fraud and perjury which “could affect” the decision made by Mushin J.  There were no particulars underpinning any of the broad assertions made by him.

10. The husband further submitted that there was "some new evidence", namely, a "key piece" of evidence he found “last night” in the Form 2 Application that was filed by the wife.  In order to correct whether I was under any misapprehension, I had the husband point out to me what he was referring to by way of the new evidence arising from the document per se.  What he said in the result was this:  "In the mercy of the court I require time to organise legal support to get a barrister to represent me in the matter," or words to that effect.  When I sought whether he had anything further to say, the husband again repeated that new evidence had become available "in the last few days".  He said that he had found some information secreted on the “top shelf of a bookcase” in the C property, where he apparently continues to reside.  He again repeated that there was “new evidence” available which was not available before Mushin J during the hearings from which his Honour formulated his judgment.

11. There was nothing of any specific nature advanced by the husband.  I asked him whether he had anything further to say and he (courteously) responded that he did not.  Given the broad and bald assertions of some mysterious evidence of alleged gravity, I would have expected that they would have been expressed properly in writing and as a matter of expedition.  This has not been attended to.

12. I see the Form 2 Application of the wife, on the face of it, as a compelling one in the whole of the circumstances, and particularly having regard to the background facts to which I have already addressed my attention.  Furthermore, I have had ample opportunity to carefully read the affidavit deposed to by her in support of her application for the issue of a Warrant for Possession. 

13. Rule 20.54 of the Rules provides that an order for the possession of real property may be enforced by a Warrant for Possession only if the respondent to the Application, in this case the husband, had at least seven days' notice of the order to be enforced before the Warrant issued. I am advised by Ms Johns, who appears for the wife, that the wife’s Application was posted in proper form to the husband's solicitors, Kennedy Wisewoulds on 30 April 2007. I see from the file that there is a notice from Kennedy Wisewoulds of Ceasing to Act which was filed on 15 May 2007. I sought from the husband whether or not he had in fact seen and read the wife’s Application and supporting material. He informed me, and helpfully so, that he was given the document on 9 May 2007. The time frame still stands. There was no material offered in the submissions of the husband, despite being given ample opportunity to address the issue, to warrant the further adjournment of the wife’s Application.

14. In the circumstances I dismiss the oral Application for an adjournment. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  13 June 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FRYER & FRYER