Fryer and Fryer (No. 2)

[2007] FamCA 574

FAMILY COURT OF AUSTRALIA

FRYER & FRYER (NO. 2) [2007] FamCA 574

FAMILY LAW - WARRANT FOR POSSESSION – Wife’s application for Warrant for Possession following orders made under contest – Husband refused to vacate the property notwithstanding having transferred the former matrimonial home to wife – Orders made for a Warrant.

Family Law Rules 2004 (as amended)

Gallo v Dawson (1990) 93 ALR 479 at 481

APPLICANT: Mrs Fryer

RESPONDENT: Mr Fryer

FILE NUMBER: MLF 1388 of 2005

DATE DELIVERED: 21 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT (NO. 2) 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 pursuant to Rule 20.54 of the Family Law Rules 2004, a Warrant of Possession do issue forthwith in the following form:

   “To the Marshall of the Court, to all officers of the Australian Federal Police and to all officers of the Police Force of the State of Victoria, where by an order of this Court made on 15 December, 2006 and varied by order dated 19 January, 2007, it was ordered that the husband, [MR FRYER] should on or before 4.00 pm on the 19 February 2007 vacate the premises situate at and known as [C] in the State of Victoria and the Court being satisfied that the said husband has failed to comply with the said order, YOU ARE HEREBY DIRECTED for the purpose of giving effect to the said order at such time and with such assistance as you may require and, if necessary by force, to enter upon the said property being the land more particularly described in Certificate of Title Volume […] Folio […] and cause the wife [MRS FRYER] to have vacant possession thereof and to cause the husband to vacate the said property”.

2. That the husband do pay the wife’s costs of and incidental to the proceedings this day fixed in the sum of $3,063.40 (“the said sum”) AND THAT the said sum be paid by the husband to the wife’s solicitors within 28 days of this date.

3. That the Form 2 Application of the wife filed on 23 April 2007 be otherwise dismissed.

(4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

1. That the ex tempore judgment delivered this day be transcribed, placed on the Court file and made available to the parties.

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 the substantive hearing of the Form 2 Application filed by the wife on 23 April 2007.  By that Application, the wife has sought the issue of a Warrant for Possession of the property at C, which as I understand was the former matrimonial home of the parties.  She seeks that the husband give possession of that property to her as the person entitled to possession pursuant to orders made by Mushin J on 15 December 2006 and varied by his Honour on 19 January 2007.  Ms Johns appears for the applicant wife.  The respondent husband appears in person.

2. I have this morning, upon an oral Application being made by the husband for an adjournment of the proceedings, dealt with that Application (Judgment No. 1) and in the course of which I have detailed the relevant background to the wife's Application filed on 23 April 2007.  It is thus unnecessary for me to repeat that material yet again into this short judgment and which I adopt.  I am fortified in that course by the submission of Ms Johns that the background detailed by me was accurate.  I heard short submissions from Ms Johns who sought to proceed with the Application and seek the fruits of the judgment made in favour of the wife and court orders made on 15 December 2006, as varied on 19 January 2007.

3. The husband has been on notice of the wife's Application since January 2007.  I was referred to a letter from the husband's former solicitors, Forte Family Lawyers, to the wife's solicitors dated 11 January 2007, who sought that the wife hold off any proposed enforcement proceedings.  Ms Johns explained to me that the "centrepiece" of the husband's Application for a stay before Mushin J on 19 January 2007 concerned the issue of the C property.  He was then represented by very competent counsel, Ms Dellidis, albeit that it appears to me from further submissions made by the husband this day a suggestion that such was not the case

4. I have heard further submissions from the husband.  He has advanced nothing in addition to any of the material that underpinned his Application for an adjournment.  He repeated that he still was seeking legal representation.  The husband submitted that he had been denied a fair and just hearing in the trial before Mushin J in August 2006 upon which the orders were based.  He again repeated that the orders made were based on false representations and fraud on the part of the wife.  He repeated, in essence, those other matters to which he addressed me in his earlier application.

5. Again, there was nothing advanced of any substance whatsoever to in any way undermine what I regard as a very strong Form 2 Application brought by the wife and supported with proper material.  When I asked the husband whether he had any further matters upon which to address me, he said, and I use his words, "I'm not a lawyer."  In Gallo v Dawson (1990) 93 ALR 479 at 481, McHugh J in the High Court said, "Lack of legal knowledge is a misfortune, not a privilege."

6. The husband has had two firms of solicitors on the record acting for him.  Both hold a reputation of excellence and I have no doubt that he has been advised to the best professional standard possible.

7. In the circumstances I propose to make the order for a Warrant as sought. I am satisfied that the husband has had proper notice of the Application in accordance with the relevant Family Law Rules 2004 (as amended). His right to possession of the property was dealt with by Mushin J in the final orders made on 15 December 2006. His Application for a stay failed on 19 January 2007, but his Honour allowed him further grace in varying the orders of 15 December 2006, insofar as they affected the C property, by giving him a further one month's time in which to vacate the property.

8. The title to the property has been transferred to the wife, following execution of a transfer by the husband.  That appears now to come under some challenge by him which has never been committed to writing, despite having had ample opportunity to do so.  The husband sought an adjournment this day which in my view was diaphanously thin and threadbare given the whole of the background to the events following the orders of Mushin J on 15 December 2006 and varied on 19 January 2007.

9. In the circumstances I propose to make the order that was appended to the Minute of Orders sought by the wife.

I certify that the preceding nine (9) 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