GREEN and BALDERRAMA
[2022] FCWA 244
•23 NOVEMBER 2022
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GREEN and BALDERRAMA [2022] FCWA 244
CORAM: COHEN J
HEARD: 26 OCTOBER 2022
DELIVERED : 23 NOVEMBER 2022
FILE NO/S: 7824 of 2021
BETWEEN: MR GREEN
Applicant
AND
MS BALDERRAMA
Respondent
Catchwords:
ENFORCEMENT – Enforcement of final property settlement orders – where both parties have brought competing enforcement applications – whether time to effect a transfer a property substantive or consequential order – whether wife obtained unconditional finance within time– whether wife breached injunction restraining parties from encumbering the property – whether husband frustrated the orders – exercise of discretion in favour of the wife
Legislation:
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Counsel A |
| Respondent | : | Counsel B |
Solicitors:
| Applicant | : | Law Firm A |
| Respondent | : | Law Firm B |
Case(s) referred to in decision(s):
Bebbington & Bebbington (2017) FLC 93-765
Bray and Bray (1988) FLC 91-968
McMillan & McMillan [2016] FamCA 387
Palmer and Mr Norman as Case Guardian for Ms Stephen-Palmer [2022] FCWA
113
Pera & Pera (2008) FLC 93-372
Ravasini and Ravasini (1983) FLC 91-312
Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd
(in liq) & Anor [2007] WASCA 67
Slapp and Slapp (1989) FLC 92-022
Wells (Deceased) (by her Legal Personal Representative, Ms M) and Wells &
Anor [2016] FCWA 45
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Green and Balderrama has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2012 (WA).
Introduction
1The Court is required to determine competing enforcement applications arising from a minute of final consent orders signed on 12 April 2022 ("the minute") by the parties [Mr Green] ("the husband") and Ms Balderrama ("the wife").
2I refer to the parties as husband and wife respectively notwithstanding the fact that they are separated but to avoid any confusion which might otherwise arise by identifying them as the applicant and respondent, particularly in the context of enforcement proceedings. I mean no disrespect to the parties by this reference and acknowledge that their relationship has concluded.
3The Court pronounced orders in terms of the minute on 14 April 2022 ("the Orders"). Importantly, however, as it is relevant to the enforcement dispute between the parties, the Orders were not extracted to the parties by the Court until 21 April 2022. As the Court now operates digitally, the Court can identify the first time a recipient of an order retrieves the order on the e-Courts portal. I have been advised by my Associate that both parties accessed the Orders at approximately 8:45am on 22 April 2022.
4The husband was born [in] 1988 and the wife was born [in] 1989.
5The wife is from [Country A] and immigrated to Australia [in] 2018. English is not the wife’s first language, and she requires a Spanish interpreter for Court events.
6The parties commenced their relationship [in] 2016 and were married [in] 2018. They separated [in] May 2021 and have one child, [Child A] born [in] April 2021 ("Child A").
7Both parties are seeking to enforce the Orders, which relate to a property [in Town B] ("the Town B property"). The husband is the registered owner of the Town B property.
8In addition to the enforcement proceedings, the parties are also in dispute about the care arrangements for Child A, however, those matters are not the subject of this determination. A case assessment conference took place with [a] Family Consultant [in early] October 2022 and her report was published on 27 October 2022.
9[In late] April 2022, a cross-examination ban order was made pursuant to s 102NA(2) of the Family Law Act 1975 (Cth) ("the Act") because a conduct agreement order is in place between the parties.
10An enforcement hearing took place on 25 October 2022, whereafter I reserved my decision, as I wanted an opportunity to further reflect on the parties’ evidence and the submissions made on their behalf.
Relevant aspects of the Orders
11 The relevant aspects of the Orders are as follows:
1.Within 60 days from the date of publication of these orders, the parties will do all acts and sign all documents necessary to contemporaneously cause the following:
(a)The Husband transfer to the Wife all of his right, title and interest in the [Town B property] ("the [Town B] property") at the Wife's expense; and
(b)The Wife refinance into her name [Mortgage] ("the mortgage") registered in favour of Macquarie Bank Ltd ("Macquarie Bank") at the Wife's expense and indemnify and keep the Husband indemnified in relation to any liabilities arising pursuant to the mortgage.
2.In the event the Wife cannot or will not comply with the preceding clause within 60 days from the date of publication of these orders, then the parties will do all acts and sign all documents necessary to contemporaneously cause the following:
(a)The Husband retain sole right, title and interest in the [Town B] property, already in the Husband's sole name;
(b)The Husband do all things necessary, including but not limited to refinancing the mortgage with Macquarie Bank to pay the wife the sum of $73,108; and
(c)Within 14 days of receiving the sum of $73,108 from the Husband, the Wife vacate the [Town B] property.
3.Pending the refinance and transfer of the [Town B] property pursuant to paragraph 1:
(a)The Wife have exclusive use and occupation of the [Town B] property;
(b)The Wife pay or cause to be paid all home loan payments secured by the mortgage with Macquarie Bank against the title of the [Town B] property, as and when they become due and payable, save and except for any arrears accrued prior to 31 January 2022;
(c)The Wife pay or cause to be paid all council rates, water rates, insurances, and other usual outgoings associated with the [Town B] property, save and except for any arrears accrued prior to 31 January 2022;
(d)The parties be restrained by injunction from further encumbering the [Town B] property in any way including drawing down on any equity or redraw facility or using the [Town B] property as security for a loan prior to paragraphs 1 or 2 taking place; and
(e)The Husband pay or cause to be paid:
i.any arrears for the [Town B] property up to and including 31 January 2022, including but not limited to the mortgage with Macquarie Bank, council rates, water rates, insurances, other usual outgoings associated with the [Town B] property, and the [Local Government D] instalment notice due on 21 February 2022 in the sum of $941.03; and
ii.any arrears for utilities associated with the [Town B] property, including water, electricity and gas bills up to and including 31 January 2022.
(As per the original)
Orders sought by the wife
12The wife lodged a form 2 application on 1 July 2022 ("the application") seeking orders to enforce her right to purchase the Town B property pursuant to paragraph 1 of the minute.
13The wife seeks orders as and by way of enforcement, in the following terms:
1. There be a declaration that the date of publication referred to in paragraph 1 of the orders of the Minute of Consent Orders attached to the Orders pronounced by the Family Court of Western Australia on 14 April 2022 ("the orders") is 21 April 2022.
2. The father forthwith do all acts and sign all documents necessary to comply with his obligations pursuant to paragraph 1(a) of the orders and transfer the [Town B property] ("the [Town B] property") to the wife.
3. Pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar of this Court be appointed to execute all deeds or instruments and sign all documents necessary in relation to the discharge of any mortgage and the transfer of the [Town B] property for and on behalf the Applicant upon presentation to the Registrar of an affidavit as to the request made to the Applicant to execute docs and his failure to do so within seven (7) days of the presentation to him of the instrument to be signed.
4. The Husband reimburse to the wife the amount of $5,000 for the deposit forfeited by the wife on the purchase of a property in [Town C].
(As per the original)
14The wife also seeks the husband pay the costs thrown away associated with her application.
15In support of her application, the wife relies on an affidavit of herself also lodged 1 July 2022.
16At the enforcement hearing, counsel for the wife advised the Court the wife was no longer pressing for an order in terms of paragraph 4 of her application, namely, for the husband to reimburse her $5,000 for the deposit forfeited by the wife on the purchase of a property in [Town C], the attempted purchase of which is relevant to this application
Orders sought by the husband
17On 23 August 2022, the husband lodged a form 2A response ("the response") seeking to exercise his rights pursuant to paragraph 2 of the minute, namely, that he retains the Town B property and pay the wife $73,108.
18The husband has sought orders, as and by way of enforcement, in the following terms:
Dismissal of wife’s application
1.The wife’s Form 2 Application in a Case filed on 1 July 2022 be and is hereby dismissed.
Enforcement of the orders made on 14 April 2022
2. The time within which the wife is to vacate the [Town B property] ("the [Town B] property") pursuant to paragraph 2(c) of the Minute of Consent Orders attached to the orders made on 14 April 2022 be extended to close of business on 22 September 2022 and, forthwith thereafter, the wife be restrained, and an injunction be granted restraining her, from accessing the [Town B] property without the written consent of the husband.
3. In the event that the wife fails to comply with paragraph 2 of these orders, that order be enforced, and an Enforcement Warrant be issued, permitting the Enforcement Officer, with such assistance as the Enforcement Officer requires and, if necessary, by force, to:
(a)take possession of, and to secure against interference, the [Town B property]; and
(b) enter the [Town B] property and eject therefrom the wife, [Ms Balderrama], and any third parties not lawfully entitled to be on the said property.
4. The wife be restrained, and an injunction be granted restraining her, from returning to the husband the funds paid to her pursuant to paragraph 2(b) of the Minute of Consent Orders attached to the orders made on 14 April 2022.
(As per the original)
19The husband seeks the wife pay his costs on an indemnity basis. Further, he seeks an order that any costs associated with paragraph 3 of the orders sought by him be met by the wife.
20 In support of his response, the husband relies on an affidavit of himself also lodged on 23 August 2022.
Legal Principles
21The parties were married and as such, the matter is determined pursuant to the Family Law Act 1975 (Cth) ("the Act").
22The Court is vested with the power to enforce orders pursuant to s 105(1) of the Act, which provides:
Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
23The Court has a discretion to enforce or to refuse to enforce an order. The discretionary nature of enforcement was set out by Thackray CJ in the matter of Wells (Deceased) (by her Legal Personal Representative, Ms M) and Wells & Anor [2016] FCWA 45 at [46] as follows:
The law is well settled that a court exercising jurisdiction under the Act has the discretion to refuse to enforce one of its own orders: Ramsey and Ramsey (1983) FLC 91-301. To this fundamental proposition, I would add the following (albeit noting that no submissions were made about principles governing the exercise of discretion):
•While there is a discretion not to enforce, like all discretions conferred on a court, it must be exercised judicially: Duroux v Martin (1993) FLC 92-432, at 80,407.
•It is only matters arising since the making of the order that can properly inform the exercise of the discretion: Ramsey and Ramsey (1983) FLC 91-301.
•Therefore, the court cannot seek to refashion the original orders, however unjust it may seem in hindsight: Ramsey & Ramsey (No 2) (1983) FLC 91-323 per Nygh J.
•The question is whether it would be inequitable to enforce the order, not by reference to strict equitable doctrine, but rather by reference to general notions of justice (see the authorities Trees J reviewed in McIntyre & McIntyre [2016] FamCA 387).
•Prima facie, a litigant (or those who stand in their place) is entitled to the benefit of an order of the court, and hence the onus to show it would be inequitable to enforce falls on the party in default. Ramsey & Ramsey (1983) FLC 91-301 at 78,061.
24The Family Court Rules 2021 (WA) ("the Rules"), particularly r 376, set out the Court’s general powers of enforcement:
376.General enforcement powers of court
A court may make an order —
(a)declaring the total amount owing under an obligation; or
(b)that the total amount owing must be paid in full or by instalments and when the amount must be paid; or
(c)for enforcement; or
(d)in aid of the enforcement of an obligation; or
(e)to prevent the dissipation or wasting of property; or
(f)for costs; or
(g)staying the enforcement of an obligation (including an enforcement order); or
(h)requiring the payer to attend an enforcement hearing; or
(i)requiring a party to give further information or evidence; or
(j)that a payer must file a financial statement; or
(k)that a payer must produce documents for inspection by the court; or
(l)dismissing an application; or
(m)varying, suspending or discharging an enforcement order.
25In exercising its enforcement power, the Court cannot vary the substantive orders but may modify the consequential provisions giving effect to the substantive orders.
26As is often the case in enforcement application involving orders that relate to a property division between the parties, the Court is required to distinguish the substantive orders from those which are consequential.[1] To do this, the Court must consider the orders as a whole and cannot consider orders in isolation or by partial reference.[2]
List of Authorities
[1] Ravasini and Ravasini (1983) FLC 91-312 at 78,126‑7 per Ellis and Emery SJJ, McGovern J; Pera & Pera(2008) FLC 93-372 at [58]‑[61] per Coleman, May & Boland JJ.
[2] Bray and Bray (1988) FLC 91-968 at 76,999‑77,000 per Lindenmayer J.
27Around an hour prior to the hearing on 26 October 2022, counsel for each party provided the Court with a list of authorities upon which they intended to rely. The late filing of the lists of authorities was not helpful.
28Fortunately, I had reviewed the same authorities which form part of the body of case law often cited in enforcement applications in my own preparation for the hearing.
Preliminary considerations
Heads of Agreement
29On 31 January 2022, the parties entered into a Heads of Agreement, the general sentiment of which is reflected in the minute. However, there is one aspect of the Heads of Agreement, which was not incorporated in the minute, namely, the requirement for the wife to notify the husband if she was unwilling or unable to refinance the mortgage into her name. Pursuant to the Heads of Agreement, such a notification from the wife would trigger the requirement of the husband to pay her $73,108, and thereafter, the wife would have 14 days to vacate the property.
30Counsel for the husband argued the omission of the "notice provision" from the orders was intentional, a fact of which I am unable to prove or disprove. However, I can make several observations about the Heads of Agreement and the orders, which are as follows
(a)Heads of Agreement are not binding in Family Court matters;
(b)both parties were competently represented at the time the consent orders were drafted and entered into. As such, and in the absence of a compelling reason otherwise, the Court is entitled to proceed on the basis the orders capture the party’s agreement about what they considered to be a just and equitable resolution to their financial relationship; and
(c)I am required to interpret the orders by construing the plain and ordinary meaning of the words in the context of the document as a whole.
Publication of the Orders
31As noted earlier in these reasons, whilst orders were pronounced in terms of the minute on 14 April 2022, they were not published by the Court until 21 April 2022 at 7:02pm, well after the close of Registry. Therefore, applying r 14 of the Rules, I find the 60-day period referred to in paragraphs 1 and 2 of the Orders concluded on 22 June 2022.
32I am satisfied that it is appropriate to make a declaration in the terms sought by the wife to that effect.
Functus officio
33At the commencement of the enforcement hearing, counsel for the husband raised a preliminary issue. Namely, whether the Court had the jurisdiction to make orders as sought by the wife, as she submitted that the wife’s rights pursuant to paragraph 1 of the minute fell into abeyance at the expiration of the 60-day period referred to in the orders. Counsel submitted the only "live" order available to the Court to enforce was paragraph 2 of the minute and referred the Court to the decisions of Slapp and Slapp (1989) FLC 92-022 and Bray and Bray (1988) FLC 91-968 in support of her submissions.
34In my opinion, Slapp and Bray are easily distinguishable from the present case because in both cases, the time-limited action was the transfer of funds, which is a discrete action and leaves no room for conjecture about compliance; funds are either transferred and received or they are not.
35This case involves the transfer of property, which is a multi-step process. First, finance must be obtained. Second, documents (including but not limited to loan contracts and the transfer of land) must be drafted and executed. Third, settlement must be booked and take place.
36The process involved in transferring a property from one person to another requires the active participation of others who may or may not be compelled by the orders to act with expedience and urgency. Regrettably, as these proceedings have highlighted, the multi-step process, which can be exacerbated by poorly drafted orders, creates a platform for dispute about compliance.
37Further, as was pointed out by counsel for the husband on several occasions throughout the hearing, the orders must be considered as a whole. In so doing, the Court cannot look at paragraph 1 of the minute in isolation of paragraph 2. The husband’s right to retain the Town B property only crystallised if the wife "cannot or will not comply" with paragraph 1. The two paragraphs are inextricably linked.
38In my view, the poor drafting of paragraph 2 is problematic, as it creates a subjective assessment of whether the wife had an inability or an intention not to comply with the requirements of paragraph 1, with each party now viewing this issue through their own lens. The “grey area” as counsel for the wife referred to it, lends weight to the need for a full consideration of the competing enforcement applications.
39The argument about the extinguishment of one party’s right for an alleged failure to do an act within a prescribed timeframe, and the potential enlivenment of another party’s rights as a result, does not oust or limit the Court’s jurisdiction, but instead, brings into sharp focus the crux of the dispute to be determined.
Identification of substantive and consequential orders
40The starting point must be to identify what the substantive orders were having regard to the Orders as a whole. In so doing, the primary substantive order, in my view, was to transfer ownership of the Town B property to the wife.
41Pursuant to paragraph 1 of the minute, within 60 days from the date of publication of the orders, the parties were to do all acts and sign all documents necessary to transfer the Town B property to the wife. Sub‑paragraphs 1(a) and (b) provide guidance as to what the parties individual obligations were in order to give effect to the substantive order.
42In my view, those obligations were not exhaustive, and the Court must also have regard to paragraph 3 of the Minute, which set out certain conditions that the parties, in particular the wife, had to comply with pending the transfer of the Town B property being affected. I will further address this issue later in my reasons as counsel for both parties made submissions about how the Court should view those conditions and the wife’s compliance with them.
The wife’s case
43The wife’s case (and her evidence) can be succinctly summarised as follows.
44The clear intention of the Orders was for the wife to have the first opportunity to retain the Town B property, in which she currently lives. At all material times, the wife made the husband aware of her desire and intention to retain the Town B property, an intention from which she never resiled. The husband could have been under no misapprehension about the wife’s intentions.
45From 1 February 2022, being the day immediately following the parties entering into the Heads of Agreement, the wife did not sit on her hands and was proactively contacting mortgage brokers and financial planners to advance the transfer of the Town B property into her sole name. The wife used her best endeavours to keep the husband aware of her efforts, including responding to a text message from the husband on 10 June 2022, where he enquired what was happening with the property. According to the wife, she advised the husband that she was still awaiting a response from St George Bank and that she thought it might take 4 to 6 weeks for the bank to respond to her.
46The husband’s solicitor sent the wife numerous letters which provided misleading information about the date the wife was required to have refinanced the property, with one of those letters including a threat of eviction. The wife responded to the husband’s solicitor conceding she was in breach of the orders, as she accepted their assertion as to the date by which she was to have refinanced the Town B property.
47The wife’s former solicitors ceased acting for her on 26 April 2022, and thereafter and until she retained her current solicitors, the wife was only receiving ad-hoc legal advice. In considering this evidence, I am also cognisant of the fact that English is not the wife’s first language.
48On 16 June 2022, the husband transferred to the wife the amount of $73,108 pursuant to paragraph 2(b) of the minute, which the wife says she returned to him.[3]
[3] Pursuant to [20] of the wife’s affidavit, she did not return the funds to the husband immediately. The funds were only returned after she received notice of her loan approval on 20 June 2022. Counsel for the husband submitted the husband did not receive the funds into his account until 23 June 2022.
49The wife received finance approval from St George Bank on 20 June 2022 and provided notification of the same to the husband’s solicitors on that day.[4] On 23 June 2022, the settlement agent instructed by the wife advised her that she was no longer prepared to act for the wife because the husband’s lawyer allegedly advised the settlement agent that settlement of the Town B property would not proceed, which if correct, is extraordinary in my view.
[4] The husband asserts notice of the wife’s finance approval was provided after hours.
50In good faith, the wife paid the mortgage instalment ($1,120) for the Town B property on 29 June 2022.
51On 30 June 2022, the wife’s current solicitors wrote to the husband’s solicitors advising of their mistake in respect to the date the wife had to refinance the Town B property.
52Much of the enforcement hearing focused on paragraph 2 of the minute, with counsel for both parties in agreement that the drafting of that particular paragraph left much to be desired. Counsel for the wife focused on the words "cannot or will not comply", submitting to the Court that neither meant "has not complied".
53Counsel for the wife argued that the wife had secured the finance necessary to transfer the Town B property into her sole name within the relevant time, albeit just, and on that basis, it would be inequitable and unjust to deny her the opportunity to retain the Town B property.
54Counsel also made strong submissions about what she asserted was the misleading content of letters sent by the husband’s solicitor to the wife on 15 and 16 June 2022. I observe the letters were sent directly to the wife, as she was unrepresented at that time, and the husband’s solicitors would (or should) have known that English is not her first language.
55I wish to take the opportunity to comment on the letter from the husband’s solicitor dated 15 June 2022, as the tone was far from constructive. Solicitors have a fundamental ethical duty to be honest and courteous in all dealings in the course of their legal practice, which extends to self-represented litigants. Correspondence must be drafted having regard to the context of the proceedings and the parties’ respective circumstances.
56Whilst it may not have been intended as such, I consider the use of the words "forcibly evicted from the property" in a letter to a self-represented party from a non-English speaking background, in circumstances where there are child related proceedings on foot, a Conduct Agreement Order in place between the parties, and where there was alleged non-compliance of only two days, threatening.
57Counsel for the husband appropriately submitted that the husband’s case should not be adversely impacted by any concern the Court may have about the conduct of his solicitor, which I agree with. However, that submission ignores the reality that a solicitor’s correspondence is drafted and sent on the instruction of the client. What I do not know is whether the husband reviewed and provided his consent for the letter of 15 June 2022 being sent to the wife. Ultimately, these matters are not relevant to my determination, but the tone of husband’s solicitor’s correspondence warranted comment given counsel for the wife’s submissions about the same.
The husband’s case
58Whether the husband’s substantive right to retain the Town B property has crystalised, requires the Court to:
(a)determine whether the wife complied with any pre-conditions imposed on her pursuant to paragraph 1 of the minute;
(b)determine whether time was of the essence, such that if strict compliance with the specified timeframe was not adhered to, the wife should lose her substantive right to retain the Town B property; and
(c)consider the implications of the wife’s conduct as it relates to the delay and injunctions in paragraph 3(d) of the Orders ("the injunction").
59Interestingly, the husband’s case does not require a closer examination of his evidence but the wife’s. At the outset of the interim hearing, counsel for the husband sought clarity as to the nature of the privilege being claimed in relation to annexure 4 of the wife’s affidavit, which is a bundle of emails between the wife, [Mr B] (a Financial Manager for [Company A]) and the wife’s settlement agent, sent between 16 and 30 June 2022. There are several aspects of the email chain redacted with the words "privileged" inserted. Ultimately, the Court was not asked to determine the issue as the unredacted emails were disclosed and tendered into evidence by counsel for the wife as exhibit R1.[5]
[5] Having now had an opportunity to review the email chain in full, there is at least one email where legal professional privilege attached, being an email from [Ms C] to the wife on 22 June 2022, which was forwarded to Mr B and [Ms D]. Counsel for the husband argued that privilege was waived in any event, as the document had been disclosed.
60Counsel for the husband argued, in essence, that the case turned on the timeline of events, which had to be considered having regard to the wife’s conduct.
The timeline
61Whilst the Heads of Agreement entered into by the parties is not binding, it was introduced into these proceedings by the wife in her affidavit. The wife’s evidence is that she commenced the process of seeking finance to transfer the Town B property into her name on 1 February 2022, the day after the parties executed the Heads of Agreement. Therefore, whilst the wife had 60 days to refinance the property pursuant to the Orders, she had just under 5 months (from 1 February 2022 to 22 June 2022) to get her financial affairs in order so that she was well placed to comply with the timeframe set out in the orders.
62Paragraph 3(d) of the minute restrained the parties from encumbering the Town B property in any way, including drawing down on any equity or redraw facility or using the Town B property as security for a loan prior to paragraphs 1 and 2 of the minute taking place. Unsurprisingly, the parties have differing views about the interpretation of this order, which is relevant because on 23 April 2022, the wife made an offer to purchase the Town C property, which was secured with a $5,000 deposit. At the time the wife made her offer to purchase the Town C property, she was still legally represented.
63According to the wife’s evidence, she purchased the Town C property with the intention of residing in it. The Town B property was to be used as an investment. This evidence is contradicted by Annexure 2 to the wife’s affidavit, which is a document prepared by her mortgage broker and is discussed in detail at [66] below.
64The wife gives evidence about the various difficulties she had securing finance. Those difficulties include, and are not limited to, having a concern about the interest rates she was quoted, her prior solicitor (and the husband) not releasing aspects of the husband’s disclosure documents to her in a prompt manner, losing confidence in one mortgage broker (or financial planner) because of significant mistakes in the refinance proposal, and not being able to progress the refinance until the Orders were available. In respect to the latter, it is not clear to the Court why the wife was unable to arrange pre-approved finance for the Town B property, pending publication of the Orders.
65The wife was aware, at all material times, of the timeframe she had pursuant to the Orders to refinance the Town B property into her sole name, and the potential consequences of non-compliance, namely, a requirement to vacate the property within 14 days of receiving funds from the husband pursuant to paragraph 2(b) and (c) of the minute. Notwithstanding this, she elected to pursue the purchase of the Town C property within the 60-day timeframe. Whilst it is not clear whether the wife actually wanted to live in the Town C property, or use it for investment purposes, she was living in the Town B property at the time, which afforded her stable accommodation provided she was compliant with the Orders.
66On 17 May 2022, the wife instructed Mr B from Company A. Annexure 2 of the wife’s affidavit is a document prepared by Mr B entitled "[Ms Banderrama’s] Game Plan" ("the Game Plan"). On page 4 of the Game Plan, under the heading “Notes on your immediate goals and objectives” it states as follows:
The current home loan is with Macquarie and balance owing is $262,000. In relation to this property in particular you are looking to remain here but you have also put in an offer to purchase a property in [Town C] for $490,000 which was renegotiated to $480,000 after we discussed and determined that the full price was just stretching the funds to complete. This purchase will be completed using the equity in the [Town B] property that will be retained … You have sought out tax and financial advice which determined your change of view not to occupy [Town C] but to use it as an investment.
(Emphasis added)
67Further in the same document, under the heading "Summary", it states as follows:
With your recent separation and subsequent court orders for asset and liability split up, you are looking to use it to your advantage by way of using the equity in home under orders to purchase another for investment whilst the rental market is strong. You have sought out independent financial advice from accountant and financial planner to determine that you will keep the [Town B] property for Primary residence for time being and have purchased property in [Town C] as investment.
(As per original)
68According to the Game Plan, the finance date is listed as 14 June 2022 and the estimated settlement date is 14 July 2022.
69According to counsel for the husband, notwithstanding the fact the parties were communicating about the refinance of the Town B property, the husband was never told about the wife’s offer to purchase the Town C property or the fact the Town B property was being used as security for that purchase.
70On 15 June 2022, the husband’s solicitor received an email from Mr B as follows:
Hi [Solicitor A],
in response to the below, [Ms Balderrama] has signed all applications we have submitted to St George Bank and have been awaiting their assessment for some time. I have today spoken with them and they have requested a couple of documents prior to formal approval – 1 being the draft transfer of land from [Ms Balderrama's] settlement agent, the other confirmation of Macquarie loan account number (which I have provided)
Could you please advise if extension to this section of court order can be granted as we should have formal approval by end of this week.
(As per original)
71On 16 June 2022, following receipt of a response from the husband’s solicitor, Mr B sent an email to the wife at 12:37pm as follows:
Hi [Ms Balderrama], have also received a response from second email.
As discussed please deposit cash into your Commonwealth Account asap and send me the receipt. I will continue to get application approved – if this communication stands from [Mr Green] then we change application to purchase [Town C] only.
(As per original)
72If the Court accepts the wife's evidence as being a true reflection of her intentions, namely, she wanted to live in the Town C property, as of 16 June 2022, she was being advised by her mortgage broker that he could change the loan application to enable her to proceed with the purchase of the Town C property only, which she clearly elected not to do. The wife’s desire to purchase two properties put in jeopardy her ability to purchase at least one of them.
73On 16 June 2022 at 12:13pm, Mr B sent a further email to the husband’s solicitor as follows:
Thank you for your correspondence, the court orders appear to state that she was to have signed but does not mention it should have settled. I understand that we have not yet had approval but the application has been with St George for the last 3 weeks and we expect approval to be held tomorrow.
(As per the original)
74Further, on 16 June 2022, the husband transferred $73,108 to the wife’s bank account as per paragraph 2(b) of the minute. As the husband himself recognises in his affidavit, this transfer was made prematurely as the 60-day timeframe set out in the Orders had yet to expire.
75On 20 June 2022, the wife received confirmation from St George Bank that her loan application had been formally approved. The wife was advised the loan documents were being prepared. The loan was for the amount of $736,000 with both the Town B and Town C properties being used as security.
76Counsel for the husband submits notice was not received by her instructors until after business hours and that no other documents were provided to support the wife’s assertion that she had received unconditional finance approval. It is salient to note that the Orders do not specifically require the wife to provide documentary evidence to the husband (or his solicitors) confirming her finance approval, although I accept it would have been both appropriate, and more importantly, helpful, had the wife done so. I also observe that it does not appear that the husband’s solicitors contacted the wife, after receiving notice from her, to request a copy of the relevant documents from her in order to establish her assertion that she had obtained unconditional finance approval, which again, in my view, would also have been helpful.
77On 21 June 2022 at 11:30pm, the wife sent an email to the husband’s solicitor advising that the loan documents were delayed because “the bank was still waiting for her to finalise the paperwork.” In her email, she indicated that she could return the funds the husband had transferred to her in the next two business days.
78On 24 June 2022, the wife sent a letter to the husband’s solicitor.[6] In his evidence, the husband described being "alarmed" by the content of the wife’s letter. Having reviewed the wife’s letter, I struggle to understand the husband’s concern. Leaving aside the wife’s comments about the husband’s behaviour towards her, which are subjective and denied by him, the wife appears to be apologetic for the delay, expresses her desire to proceed with the purchase of the Town B property and refers to having done her best in difficult circumstances.
[6] Annexure C to the husband’s affidavit.
79The wife appeared to be seeking the husband’s understanding and indulgence by granting her additional time to refinance the Town B property. There is nothing alarming about the wife’s request. Extensions of time are frequently sought in Family Court proceedings, so the wife’s request is far from unusual. Nor is it unusual for parties to attempt to confer and negotiate notwithstanding court orders being in place, particularly in circumstances where the parties are not in agreement about whether a springing order has in fact taken effect.
80Proper personal conferral is a critical feature of the proper conduct of litigation,[7] other than in exceptional circumstances, including those in which family violence might render it inappropriate. It is necessary for the purpose of identifying the issues actually in dispute, endeavouring to resolve them, and if they cannot be resolved, narrowing them. The benefit to the parties of that approach, which frankly only reflects the basics of sound practice by lawyers in any event, is obvious. Correspondence, no matter how voluminous or frequent, is no adequate substitute for parties and their lawyers actually talking to each other.
[7] Palmer and Mr Norman as Case Guardian for Ms Stephen-Palmer [2022] FCWA 113 at [22] per O’Brien J citing Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) & Anor [2007] WASCA 67.
81Over and above that, compliance with any mandated requirement for conferral is essential to effective case management in circumstances where the workload of the Court continues to increase, and where parties understandably wish to see their cases progress through the court system as promptly and cost effectively as possible.
82Pursuant to the Orders, the wife was to be meeting the mortgage and the outgoings on the Town B property pending transfer of the property to her. As the Town B property is currently in the name of the husband, all bank statements, rates, and utility notices would be sent to him. Counsel for the wife submitted the wife did not have the relevant information required to make those payments.
83In response to this issue, the husband asserts the wife was served with his form 13 financial statement on 15 September 2021, and further references his compliance with his disclosure obligations. I take from the husband’s evidence that he expected the wife to review court documents and his disclosure, to distil from the same, the information necessary to ensure her compliance with paragraphs 3(b) and (c) of the minute. I do not consider this approach helpful or reasonable.
84According to the husband, the wife should have vacated the property by 4 July 2022.
85On 5 July 2022, the husband’s solicitor received an email from [Settlement Agency B] confirming:
(a)they were now acting on behalf of the wife;
(b)the wife had now obtained finance approval, a copy of which was attached to their email; and
(c)a Transfer of Land would be signed by the wife and sent to the husband for his countersignature.
86In response to a question put by me at the enforcement hearing, it was confirmed that the husband had never been provided with a Transfer of Land to execute. Counsel for the husband drew the Court’s attention to the unredacted emails between the wife, Mr B and her settlement agent, which suggests a Transfer of Land was first sent to the wife on 16 June 2022 and resent on 22 June 2022. It is unclear why that Transfer of Land was not onforwarded to the husband at that time to be executed by him.
Has the husband’s substantive right crystalised?
87The husband’s substantive right crystallises if and only if, after the 60th day after publication of the Orders, the wife "cannot or will not" comply with her obligations pursuant to the Orders.
88It is the husband’s case that for the wife to have fully complied with paragraph 1 of the orders, settlement of the Town B property was to have taken place and the property legally transferred into the wife’s sole name by no later than 21 June 2022.[8] Counsel for the husband argued that the use of the word "contemporaneously" in paragraph 1 of the minute provides support for that position. Further, she says the wife’s delay was unreasonable because of the specific factual matrix of this particular case, with reference being made to the Heads of Agreement, which as noted earlier, was executed on 31 January 2022
[8] Noting the orders were published after the close of Registry on 21 April 2022, 60 days from the date of publication of the orders would be 22 June 2022.
89Counsel for the wife argued the wife had complied with sub‑paragraph 1(b) of the minute, as her obligation to "refinance the mortgage registered in favour of Macquarie Bank" was satisfied when she obtained unconditional finance approval from St George Bank on 20 June 2022, which was within the required timeframe, albeit just.[9] Counsel directed me to the construction of sub-paragraph 1(b) and argued "one refinances a loan not a mortgage instrument".
[9] Annexure "C' of the wife’s affidavit at page 49.
90I am satisfied on the evidence currently before the Court that the wife has, at all material times, maintained a willingness and intention to have the Town B property transferred into her sole name. As such, it cannot be said the wife has not satisfied the "will not" condition. Therefore, the question is how the Court is to interpret the word "cannot" as it is used in paragraph 2 of the minute, which must be viewed in conjunction with paragraph 1.
91The Cambridge Dictionary defines "cannot" as an auxiliary verb meaning unable or not allowed. I am satisfied in the present case, satisfaction of the "cannot" condition would only be established if the wife was not able or allowed to secure the finance necessary to transfer the Town B property into her sole name.
92Upon the wife obtaining unconditional finance approval, she had the capacity and ability to refinance the Town B property, as per sub‑paragraph 1(b) of the minute. Once that unconditional finance approval was obtained, it could not be successful argued in my view, that the wife "cannot" satisfy the obligations imposed on her by the Orders.
93I do not agree that it was necessary for settlement also to have taken place in order for the wife to have fully satisfied the requirements of sub-paragraph 1(b) of the minute. In my view, the wife’s compliance, or ability to comply, was satisfied when she obtained unconditional finance approval to have the property transferred into her sole name. The settlement process gives effect to the substantive order and is consequential or machinery in nature.
94Paragraphs 1 and 2 required the wife to have obtained finance on or before 22 June 2022. Counsel for the wife submitted the wife had complied within the necessary timeframe, as unconditional finance was approved by St George Bank on 20 June 2022. As is addressed below, the husband argues this finance was obtained in breach of the injunction, as the finance was for the joint purchase of the Town C and Town B properties, using both properties as security.
95As noted above, the wife sent the husband’s solicitor an email on 21 June 2022 advising that there was a delay with her loan documents because the bank was still waiting for her to finalise the paperwork. Whilst the wife provided no evidence about the anticipated length of the delay, her evidence related only to a delay in the loan documents being provided to her. At no stage did the wife advise the husband that her unconditional finance with St George Bank had been terminated, recalled, or varied.
96On 23 June 2022, the wife was advised by her settlement agent that she intended to cease acting for the wife in the settlement of the Town B property. The settlement agent strongly recommended that the wife obtain independent legal advice. According to the email from the settlement agent, she had contacted the husband’s solicitor that day and was instructed that they would not be proceeding with the settlement. The settlement agent enquired whether the wife intended to proceed with settlement of the Town C property, which ultimately fell through.
97On 5 July 2022, the husband’s solicitor received an email from a new settlement agent instructed by the wife confirming that the wife had "now obtained finance approval". As I understand it, this finance approval related solely to the purchase of the Town B property.
98In reaching my conclusion as to whether the husband’s right crystallised, I find I have to consider three issues:
(1)is the wife’s delay, if the Court finds there is a delay, fatal to her enforcement application as time was of the essence;
(2)is a breach of the injunction by the wife, if the Court finds there is a breach, a bar to any right she may have to retain the Town B property; and
(3)if there is no delay (or a non-fatal delay) by the wife and no breach of the injunction, did the husband frustrate the Orders by his refusal to do all acts and things necessary to give effect to the Town B property being transferred to the wife.
99The first two considerations relate to the wife’s conduct with her primary obligation pursuant to paragraph (1)(b) of the Orders. The third consideration relates to whether the husband’s conduct prevented the wife performing any ancillary obligations in relation to the husband’s primary obligation under paragraph 1(a).
Is the delay fatal?
100There are two questions that arise:
(a)were the Orders drafted in such a way that the timeframe set out in the Orders made strict compliance with that timeframe of the essence, such that if the wife did not strictly comply within the timeframe, she should lose her substantive right to retain the Town B property; and
(b)was the delay so significant, and the wife’s conduct so concerning, that the wife should be barred from pursuing any entitlement she might have had to retain the Town B property.
101Both paragraphs 1 and 2 of the Orders clearly refer to the 60-day timeframe the wife had to ‘refinance’ the Town B property into her sole name, which as discussed above, required the wife to obtain unconditional finance approval within 60 days of the Orders being published. In the husband’s list of authorities, the Court is referred to the decision of Bebbington & Bebbington (2017) FLC 93-765. Having considered that decision, I observe the following comments made by Kent J:
33.The consent orders, as with any property orders pursuant to section 79 of Act, crystallized the parties’ respective rights property. There are cases where the proper interpretation of property orders, either by reason of their express terms or by necessary inference, yields the conclusion that time for the doing of an act as ordered or for the performance of an obligation as ordered is of the essence, in the sense of time being inextricably bound up with an underlying substantive right. Moreover, the effluxion of time after due performance of an act or obligation may be such that the point is reached that underlying substantive rights acquired under the order have materially changed.
34.However, neither is so in this case. The orders did not prescribe that time was of the essence for the acts to be performed nor can the orders as a whole be sensibly interpreted as producing that result. In short, the orders cannot sensibly be interpreted to mean that if the 45-day period was not strictly adhered to, but performance by the 47th day was achievable (as was the case), the underlying substantive rights conferred by the orders would be, as a result of such delay, materially different.
102There can be no doubt that the parties only intended for the wife to have 60 days to obtain the finance necessary to refinance the Town B property into her name, and if that did not happen within that 60-day timeframe, the Orders unequivocally prescribed what was to occur, namely the Orders conferred a substantive right to the husband to retain the Town B property. Whilst the Orders did not expressly state that time was of the essence, or that strict compliance with the timeframe was necessary, when one reads paragraphs 1 and 2 of the Orders together, I am satisfied that this was clearly the parties’ intent.
103Both parties were competently represented when the Orders were entered, and I cannot accept having regard to the totality of the evidence before the Court, that the wife did not know or understand that her opportunity to retain the Town B property was time sensitive.
104In his cogent summary of the discretionary nature of enforcement, his Honour Thackray CJ in Wells at [46] referred to a decision by Trees J in McMillan & McMillan [2016] FamCA 387. In McMillan, his Honour Trees J observed the following about delay and laches at [66] and [67]:
66.Laches is a discretionary bar to relief based on equitable claims. It is not a defence to common law actions, much less an action or activity brought in furtherance of a statutory right. Therefore to the extent that cases such as Peabody (supra) seem to contend that laches may cause a party to “lose the right to insist on the performance of an obligation” I would respectfully disagree. However, the analysis of delay, and its consequences, which is undertaken when considering a defence of laches, is nonetheless relevant to the exercise of the discretion under s 105. Particularly relevant to establishing the equitable bar are the following:
·That the delaying party had full knowledge of the material facts, or knowledge of circumstances from which the relevant facts are a clear inference; and
·That the delaying party has acquiesced and assented to the other party’s conduct or position, or alternatively, that the delaying party’s delay has caused the other party to prejudicially change their circumstances.
67.Further, the cases demonstrate that absent acquiescence or prejudice, delay of itself does not readily excite equitable intervention.
105There can be no doubt that the wife did not acquiesce in her desire to retain the Town B property. Importantly, she returned to the husband (albeit approximately one week later), the funds the husband had transferred to her in compliance with paragraph 2(b) of the minute. In so doing, the wife made clear she did not accept or agree with the husband’s assertion that she had forfeited her right to retain the Town B property.
106Counsel for the wife submitted that the Orders made clear the party’s intention that the wife have the first opportunity to retain the Town B property, which she was able and willing to do. I accept that submission.
107However, the Orders also provided a clear timeframe for the wife to secure the necessary finance to affect the transfer of the property into her name. In the event she was unable to do so within that timeframe, the Orders vested in the husband, a substantive right to retain the Town B property. For this reason, I am satisfied that time was of the essence.
108Based on the evidence before the Court, I am satisfied the wife secured the unconditional finance necessary to have the Town B property transferred into her name on 20 June 2022, which was within the 60-day timeframe set out in the Orders, albeit just.
109If I conclude she did breach the injunction, however, the unconditional finance approval received on 20 June 2022 would be improperly obtained. In that case, I would find the actual date the wife secured unconditional finance for the Town B property was not until 5 July 2022, which falls outside the timeframe stipulated in the Orders.
110Even if time was not of the essence, the wife had 4.5 months from the Heads of Agreement to get her financial affairs in Order, and still, within the even further narrowed 60-day period, she chose to pursue two properties simultaneously instead of prioritising securing her substantive right under the Orders. The delay to 5 July 2022 in the context of the breached injunction is substantial and would be fatal to her enforcement application.
Did the wife breach the injunction?
111I now turn to the issue of whether the wife breached the injunction, which will inform both my view of the wife’s conduct and my finding as to which date the wife secured unconditional finance.
112Whilst the wife initially secured the finance necessary to retain the Town B property on 20 June 2022, the refinance was structured using both properties as security, which counsel for the husband argued the wife was injuncted from doing pursuant to paragraph 3(d) of the minute. This submission formed an important plank of the husband’s argument, with counsel for the husband arguing that the wife did not come to the enforcement hearing with clean hands.
113Counsel for the wife strenuously disputed that the wife had breached the injunction as the charge over the Town B property was only perfected upon settlement.
114Considering the Orders as a whole, I have no hesitation in accepting that the party’s intention was for neither party to deal with the equity in the Macquarie Bank home loan, or to further charge or use the Town B property as security for any further lending until the ultimate ownership of the Town B property was settled.
115However, I must enforce the Orders as they are. I am being asked to find that the wife breached the injunction, which I cannot do. The dispute in respect to this issue again highlights the poor drafting of the Orders, which appears to have been drafted without consideration as to who legally owned the Town B property at the time the Orders were entered into. Whilst paragraph 3(d) refers to the "parties", the only person with the lawful capacity to do any of the actions described in that paragraph was the husband, as the property was owned solely by him.
116The party’s financial relationship was concluded upon the publication of the Orders. Thereafter, the parties were entitled, subject to any obligations imposed on them by the orders, to structure (or restructure) their finances however they so wished without consultation or conferral with the other party. Importantly, as the financial aspect of the proceedings had concluded, neither party was required to provide the other with disclosure pertaining to their financial circumstances, save as it was required to give effect to the Orders.
117As the offer to purchase the Town C property was made after the publication of the Orders, and the wife had no lawful capacity to encumber the Town B property until settlement was affected, I do not consider that the wife had a positive obligation to disclose her offer to purchase the Town C property, or the details about how her finance was structured or secured.
118 The wife’s ability to utilise the Town B property as security only crystalised at settlement when the property vested with her. As settlement of both properties was intended to be contemporaneous, I do not agree that the wife breached the injunction.
119 Therefore, I find that the date the wife properly obtained unconditional finance to be 20 June 2022 and in doing so, her only remaining obligations were ancillary to the husband’s primary obligation in paragraph 1(a).
Did the husband frustrate the orders?
120The only remaining question for me to determine is whether the husband frustrated the Orders and in doing so prevent the wife from completing any ancillary obligations under paragraph 1(a).
121In the circumstances, I find that the husband frustrated the Orders when his solicitor contacted the wife’s settlement agent to advise that settlement of the Town B property would not be proceedings. Self‑evidently, as the husband had formed the view his right to retain the Town B property had crystalised, he was not prepared to discharge his obligations pursuant to the orders to "do all acts and sign all documents necessary" to cause the Town B property to be transferred to the wife. In the absence of the husband’s co-operation, the wife was unable to proceed with settlement.
Conclusion
122This was a finely balanced decision and one I consider appropriately brought to the Court for determination.
123In the circumstances, I am satisfied that the wife had secured the finance necessary to refinance the Town B property into her sole name within the timeframe permitted in the Orders, and on that basis, she was compliant with her obligations pursuant to the Orders. I have already recorded my view that I do not consider that full compliance also required settlement to have taken place within that timeframe.
124Further, I do not consider the wife breached the injunction, and as such, there is no proper basis for an equitable argument that she should be estopped from pursuing her enforcement application.
125I am satisfied that the husband frustrated the Orders by his interference with the settlement process, and in doing so made it unjust and inequitable for me to exercise my discretion in his favour. The wife should have the benefit of the Orders.
Proposed orders
126For all the reasons set out above, I intend to exercise my discretion in favour of the wife. Accordingly, and subject to hearing submissions from counsel about the form of my proposed orders, I propose to make the following orders:
1.There be a declaration that the date of publication referred to in paragraph 1 of the orders of the Minute of Consent Orders attached to the Orders pronounced by the Family Court of Western Australia on 14 April 2022 ("the orders") is 21 April 2022.
2.Within 21 days of the date of publication of these orders, the Applicant, [Mr Green], do all acts and sign all documents necessary to comply with his obligations pursuant to paragraph 1(a) of the orders to transfer [the Town B property] ("the [Town B] property"), to the Respondent, [Ms Balderrama].
3.In the event the Applicant fails to comply with paragraph 2 of these orders, pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Western Australia at Perth is hereby appointed to execute the transfer of land and all other deeds and documents necessary to give effect to the transfer of the [Town B] property to the Respondent.
4.Until the [Town B] property is transferred to the Respondent pursuant to these orders, paragraphs 3(a), (b), and (c) remain in full force and effect.
5.To give effect to the preceding paragraph, upon receipt of the same by him, the Applicant is to forthwith provide the Respondent by email, with a copy of:
(a)any correspondence from the Macquarie Bank, relating to changes to the mortgage repayments; and
(b)a copy of all rates and utilities notices.
6.The parties’ solicitors are to directly confer by telephone in respect to the issue of costs, and if agreement cannot be reached:
(a)within 28 days of the date of publication of these orders, the Applicant’s solicitor is to file and serve written submissions in relation to costs, limited to a maximum of 10 pages and 5 annexures;
(b)within 14 days of service of the Applicant’s written submissions as to costs, the Respondent’s solicitor have leave to file and serve written submissions in reply, limited to 10 pages and 5 annexures; and
(c)thereafter, the issue of costs be determined on the papers in chambers.
7.In the event neither party seeks a relisting of the enforcement proceedings on or before 25 February 2023, the Form 2 application e-lodged 1 July 2022 and the Form 2A response e-lodged 23 August 2022 be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
MG
Associate
23 NOVEMBER 2022
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