Hannegan & Orlando
[2023] FedCFamC2F 516
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hannegan & Orlando [2023] FedCFamC2F 516
File number(s): ADC 2571 of 2021 Judgment of: JUDGE DICKSON Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – ENFORCEMENT – PROPERTY – de facto relationship – final orders – where the applicant seeks vacant possession and enforcement in preparation for sale – oral application by the respondent to adjourn – oral application dismissed – orders made as sought by the applicant Legislation: Family Law Act 1975 (Cth) ss 81, 90SN, 105, 106A, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 11.56, 11.62
Cases cited: Ahsan & Ahsan [2020] FamCA 69
Bray & Bray (1988) FLC 91-968
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Cheung v The Queen (1999) 73 ALJR 1093
Goldsmith & Stinson(No 2) [2023] FedCFamC1A 25
In the Marriage of Kerr (1983) 8 Fam LR 1023
Queensland & JL Holdings (1997) 189 CLR 146
Ravasini & Ravasini (1983) FLC 91-312
Slapp & Slapp (1989) FLC 92-022
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 13 April 2023 Place: Adelaide Counsel for the Applicant: Mr Lewis Solicitor for the Applicant: Women’s Legal Service SA The Respondent: Self-Represented ORDERS
ADC 2571 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HANNEGAN
Applicant
AND: MR ORLANDO
Respondent
order made by:
JUDGE DICKSON
DATE OF ORDER:
5 May 2023
UPON NOTING:
A.The submission made on behalf of the applicant that she will meet all mortgage repayments for the B Street, Town C property as and from the date of vacant possession by the respondent until the date of settlement of sale of the B Street, Town C property and will not seek repayment from the respondent arising therefrom.
THE COURT ORDERS:
1.That the respondent’s oral application for adjournment of the applicant’s Amended Application for Enforcement filed 15 March 2023 (‘the said Amended Application’) is dismissed.
2.That no later than 4.00pm on the 4 June 2023 the respondent do vacate the property situate at B Street, Town C in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … (‘the B Street, Town C property’) and do remove all of his furniture and personal effects and belongings contemporaneously at the time of vacating the B Street, Town C property.
3.That in the event that the respondent fails to comply with paragraph 2 herein, an enforcement warrant do issue pursuant to rule 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) authorising an enforcement officer to enter the B Street, Town C property and give possession of the B Street, Town C property to the applicant.
4.That pursuant to rule 11.62 of the said Rules, the enforcement officer may, when enforcing the warrant (with such assistance as the enforcement officer requires, and, if necessary, by force) to do any of the following:
(a)Enter and search the B Street, Town C property;
(b)Enter and remove from the B Street, Town C property the respondent and any other person who is not lawfully entitled to be on the B Street, Town C property;
(c)Take possession of or secure against interference any property the subject of the warrant.
NOTING THAT the powers specified in rule 11.62 are in addition to, and do not derogate from, any other powers conferred by law on the said enforcement officer.
5.That paragraph 1.21 of the order made 13 December 2021 be varied by deleting the words ‘an authorised officer’ and replacement with the words ‘a Judicial Registrar.’
6.That the respondent do pay the applicant’s costs in relation to the said Amended Application fixed in the sum of ONE THOUSAND AND TWENTY DOLLARS AND ZERO CENTS ($1,020.00) plus GST with such costs to be deducted from the net proceeds of sale of the B Street, Town C property and shall be paid to the applicant at settlement of the B Street, Town C property.
7.That all extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hannegan & Orlando has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These proceedings concern an Application for Enforcement filed by applicant de facto wife (‘the applicant’) on 19 September 2022. An Amended Application for Enforcement was filed on 15 March 2023 (‘the Amended Application’).
The orders sought by the applicant are opposed by the respondent de facto husband (‘the respondent’).
On 13 December 2021 final orders (‘the final orders’) were made by consent resolving the parties’ applications for property settlement.
At the enforcement hearing on 13 April 2023:
(1)It was an agreed position between the parties that the final orders had not been implemented;
(2)The respondent opposed the Amended Application and made an oral application for an adjournment to obtain further legal advice. He foreshadowed filing an application to vary or set aside the final orders;
(3)The applicant opposed the respondent’s oral application for an adjournment; and
(4)The Court heard submissions from the parties in relation to all applications and judgment was reserved.
For the Reasons set out herein the Court proposes to dismiss the respondent’s oral application for an adjournment and to make orders as largely sought by the applicant.
BACKGROUND
The applicant is aged 80 years. The respondent is aged 40 years.
The parties commenced cohabitation in or about 2010/2011 and separated in either September 2018,[1] or February 2019.[2] The parties remained living under the one roof until 5 February 2021 being the date upon which the applicant obtained an interim Intervention Order against the respondent. A Final Intervention Order was granted by the Suburb D Magistrates Court for the protection of the applicant on 27 May 2021.
[1] See the Affidavit of Mr Orlando filed 5 April 2023 at paragraph 7.
[2] See the Affidavit of Ms Hannegan filed 28 March 2023 at paragraph 13.
On 28 May 2021 the applicant filed an Initiating Application for property settlement. During the currency of the proceedings both parties were represented by solicitors. They attended two Conciliation Conferences at Court. Final agreement to resolve the litigation was reached. Minutes of order were engrossed by the respondent’s solicitor. Final orders were made by consent on 13 December 2021. All extant applications were dismissed. Each party had liberty to apply for consequential orders.
The final orders provided for the parties to retain one property each. The applicant was to retain a property at E Street, Suburb F (‘the E Street, Suburb F property’) and the respondent was to retain a property at B Street, Town C (‘the B Street, Town C property’). Within 60 days of the final orders, the parties were to refinance the existing joint mortgage secured over both properties, into a mortgage in their own name for the property each was retaining. The orders also provided for the eventuality of one or both of the parties not securing finance in which case the subject property was to be sold and the mortgage secured over that property to be discharged. The final orders also contained an order enabling the parties to retain the property if finance was provided after the 60 day period had expired.
At the date of the final orders, the applicant was occupying the B Street, Town C property and the E Street, Suburb F property was subject to lease.
On 12 January 2022, the husband advised the wife that he had finance approved to refinance the B Street, Town C property mortgage into his sole name.
On 11 February 2022, being the final day upon which the 60 day settlement period would lapse;
(1)The parties exchanged keys;
(2)The applicant moved into the E Street, Suburb F property and the respondent moved into the B Street, Town C property; and
(3)The applicant signed a Residential Sales Agency Agreement to sell the E Street, Suburb F property as she had not been able to secure the necessary finance to discharge the mortgage to Bank G.
On 16 February 2022 the applicant was advised by her finance broker that she had now secured finance necessary to purchase the E Street, Suburb F property.
On 10 March 2023, the respondent’s solicitor confirmed in writing that it remained his position to retain the B Street, Town C property.
On 16 March 2022 the respondent’s solicitors ceased to represent him.
On 27 March 2022 the respondent asserted that his financing had expired.
The applicant alleges that:
(1)After the respondent moved back into the B Street, Town C property, he initially failed to pay the outgoing mortgage to Bank G and other utilities. Further, that the respondent failed to take steps to refinance the mortgage over the B Street, Town C property as required by the final order; and
(2)Despite failing to have the finance necessary to refinance, the respondent also opposed the B Street, Town C property being placed on the market for sale.
It is the applicant’s position that she is unable to implement the terms of the final order whilst the E Street, Suburb F and B Street, Town C properties and their mortgages attached remain registered in joint names. At the hearing, the applicant confirmed that she has the necessary finance and is able to proceed.[3]
[3] See ‘Exhibit A1’.
In circumstances where the respondent has neither secured finance nor taken steps to list the B Street, Town C property for sale, the applicant now seeks orders in terms of her Amended Enforcement Application.
The respondent opposes the Amended Enforcement Application.
At the hearing, the respondent sought an adjournment to attend upon new solicitors and foreshadowed bringing an application to set the orders aside pursuant to section 90SN of the Family Law Act 1975 (Cth) (‘the Act’). The basis of the foreshadowed section 90SN application is alleged to arise in summary because:
(1)The respondent was unaware at the date of the final orders of the mortgage and utilities allegedly not paid by the applicant when she was in occupation of the B Street, Town C property;
(2)The B Street, Town C property was not cleaned at all, or not cleaned to a state which satisfied the respondent, prior to him moving back into the property; and
(3)The actions of the applicant have resulted in the respondent being unable to refinance the B Street, Town C mortgage into his sole name.
The oral application, and the reasons for it, were opposed by the applicant and submissions made by her counsel refuting the allegations.
For reasons of expediency, cost and convenience to the parties the Court determined to hear all applications simultaneously and reserved its decision.
The issues to be determined therefore are:
(1)Should the applicant’s Enforcement Application be adjourned to enable the respondent to file an application pursuant to section 90SN of the Act; and
(2)If the answer to subparagraph (1) above is no, should orders be made as sought by the applicant or on such other terms as the Court considers just in all of the circumstances.
DOCUMENTS RELIED UPON
The applicant relied upon an Amended Outline of Case Document together with the documents identified at page 1, paragraph B of the said Outline of Case Document.
The respondent relied upon an affidavit filed 22 March 2023 (‘the March affidavit’) and an affidavit filed without leave on 5 April 2023 (‘the April affidavit’).
Reliance upon the April affidavit by the respondent was opposed by the applicant. After hearing submissions, the Court ruled that the respondent was permitted to rely on the April affidavit for the hearing notwithstanding that it was filed without leave.
Each of the parties were permitted by the Court to tender further documents at the hearing. The applicant’s Exhibits are marked ‘A1’ and ‘A2’ respectively. The respondent’s Exhibits are marked ‘R1’, ‘R2’ and ‘R3’ respectively.
THE RESPONDENT’S ORAL APPLICATION TO ADJOURN
At the commencement of the hearing, the respondent was represented by a Duty Solicitor. At the request of the Duty Solicitor, the matter was held to enable instructions to be obtained and negotiations to occur.
The negotiations were unsuccessful and the Duty Solicitor withdrew.
The respondent’s application to adjourn the hearing was heard first. In support he submitted that the Application for Enforcement should be adjourned because:
(1)He had spoken with a solicitor by telephone recently who would assist him to file an application to vary or set aside the final orders;
(2)The respondent alleged that at the time the final orders were made he was unaware of outstanding liabilities said to attach to the B Street, Town C property which should have been paid by the applicant;
(3)The applicant was required under the terms of the final order to clean the B Street, Town C property when she moved out. The respondent alleged that she did not clean the property or if she did do, the cleaning was not to his satisfaction;
(4)The actions of the applicant had resulted in him having a bad credit rating which made it difficult for him to now refinance; and
(5)He was trying to secure finance and was now paying the mortgage over the B Street, Town C property. The respondent conceded at hearing that he could not provide evidence of his capacity to refinance the mortgage into his sole name.
The applicant, in opposition to the adjournment, submitted:
(1)The respondent had moved into the B Street, Town C property in February 2022;
(2)The original Application for Enforcement was filed on 19 September 2022;
(3)At no time since the final orders were made in December 2021 had the respondent sought or foreshadowed the filing of any application to vary or set aside the final orders;
(4)The notation to the order made 20 March 2023 recorded the respondent’s true position, namely that the respondent had been unable to refinance the mortgage into his sole name but nevertheless objected to the sale of the B Street, Town C property;
(5)The respondent cannot complain about an alleged unawareness of the mortgage balances at the time he moved back into the B Street, Town C property because as a joint mortgagor he could have obtained that information himself prior to the making of the final orders. The allegations of unpaid utilities and the mortgage were denied;
(6)The applicant had cleaned the property prior to her vacating it, evidence was before the Court by way of a receipt and photographs and such a complaint even if made out would not be sufficient to ground an application pursuant to section 90SN of the Act;
(7)After the date of the final orders the respondent had initially advised the applicant that he had finance approved. If his circumstances had since changed, it was not a matter within the control of the applicant; and
(8)The application for an adjournment was nothing more than a delaying tactic and the respondent had not advanced to the Court what remedy he would seek even if he was ultimately successful in an application to vary or set the order aside.
LEGAL PRINCIPLES ON THE ADJOURNMENT APPLICATION
The Court has an inherent power to grant an adjournment or not where it is necessary to do justice between the parties.[4]
[4] Cheung v The Queen (1991) ALJR 1093, p. 1094 to 1095 (Kirby J).
In considering an application for adjournment, the Court is to consider:
·Whether the adjournment is for a reasonable period of time;
·Whether there is adequate reason given for the request for the adjournment;
·What prejudice would either party suffer as a result of the adjournment;
·Whether that prejudice could be met by a costs order;
·Any period of delay in making the application; and
·The overarching consideration to do justice between the parties.[5]
[5] Queensland & JL Holdings (1997) 189 CLR 146; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
The Family Law Case Management Central Practice Directions (‘CPD’) also serve to reinforce many of these important principles.
Paragraph 3 of the CPD sets out 10 core principles which underpin the exercise of the Family Law jurisdiction and are designed to facilitate the resolution of Family Law proceedings. Paragraph 3.3 of the CPD provides that the overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Paragraph 3.10 provides that non-compliance with orders (amongst other things) will be taken seriously by the Court. Non-compliance is said to potentially lead to serious consequences for parties including the making of costs orders against a non-compliant party.
CONCLUSION ON THE ADJOURNMENT APPLICATION
Having heard the submissions of the parties, the Court has determined that the respondent’s oral application for an adjournment of the Application for Enforcement is refused and shall be dismissed.
In this case, final orders were made in December 2021. The original Application for Enforcement was filed in September 2022. The respondent has had ample opportunity to seek legal advice as to any remedies that may be available to him in relation to the predicament he now faces. To present at Court on the day of hearing and seek a further adjournment is an affront to the proper administration of justice.
The applicant has the benefit of final orders in her favour and she has secured the necessary finance to retain the E Street, Suburb F property. The parties’ financial enmeshment means that she cannot do so without the mortgage for B Street, Town C being refinanced into the respondent’s sole name or discharged. I am persuaded by the submissions made by the applicant’s counsel that the respondent has had sufficient time since the final orders were made to seek legal advice and bring any such application as he may be advised.
The Court delayed delivery of this Judgment by an additional 14 days to give the respondent one final opportunity to provide proof of his refinance to the applicant. He has failed to do so. The time has now come for the Court to intervene and to provide certainty so as to sever the parties’ financial affairs and to give effect to section 81 of the Act and the final consent orders.
THE APPLICANT’S AMENDED APPLICATION FOR ENFORCEMENT
The applicant seeks that the respondent be given 30 days to vacate the B Street, Town C property, failing which the applicant seeks vacant possession and an enforcement warrant for his removal. The applicant opposes the respondent remaining in the property for the marketing and sale of the property. She argues that if the respondent remains living in the B Street, Town C property there will be further problems and that the respondent may seek to frustrate the sale. It is contended that the smooth and orderly sale of the B Street, Town C property can only be achieved if the respondent is living elsewhere. The applicant further submitted that she will repay the B Street, Town C property mortgage upon vacant possession and pending sale.
The respondent opposes the order to vacate and submits that he should be permitted to remain in the B Street, Town C property pending settlement upon sale. He submits that he has animals (specifically a dog and chickens) to rehouse. Since December 2022, the applicant has been living and working at Town H (approximately one hundred kilometres in distance from B Street, Town C) but has friends who tend to the animals in his absence.
In submissions, the applicant’s counsel made an oral application for the applicant to be appointed the ‘sole sales agent’ for the sale of the B Street, Town C property. Such an order was not sought in either Application for Enforcement filed by her.
The respondent opposes any order giving the applicant sole control over the sale of the B Street, Town C property. He is concerned to achieve the best sale price possible given that he will be retaining the net proceeds of sale as his settlement sum.
The applicant seeks an order that pursuant to section 106A of the Act, a Judicial Registrar of the Court be appointed to execute all documents necessary on behalf of the respondent to sell the B Street, Town C property. The respondent did not address the Court on this topic but for the Reasons set out herein his failure to do so has not impacted on the orders made by the Court in relation to this aspect of the application.
Finally, if successful, the applicant seeks costs fixed in the sum of $1,020 plus GST. The sum is said to be calculated on the Legal Services Commission of South Australia Family Law Scale for counsel’s preparation and attendance at the hearing. The application for costs is opposed by the respondent.
LEGAL PRINCIPLES
All orders made pursuant to the Act may be enforced by a Court having jurisdiction under the Act.[6]
[6] Family Law Act 1975 (Cth) s 105.
The Court has a discretion with respect to the enforcement of orders made pursuant to the Act.[7]
[7] In the Marriage of Kerr (1983) 8 Fam LR 1023; Ahsan & Ahsan [2020] FamCA 69.
The Court may issue a warrant for possession authorising an enforcement officer to enter the property described in a warrant and give possession of the real property to the person entitled to possession.[8]
[8] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.56(2).
Rule 11.62 provides for the powers available to an enforcement officer when enforcing a warrant. This includes the power to enter a property and remove any person who is not lawfully entitled to be on the property.
The Court cannot interfere with a final property order save by appeal or pursuant to section 79A or section 90SN of the Act.[9] The Court does have the power to make any ‘machinery’ or ‘consequential orders’ necessary to give effect to the terms of orders made.[10]
[9] Ravasini & Ravasini (1983) FLC 91-312; Bray & Bray (1988) FLC 91-968; Slapp& Slapp (1989) FLC 92-022.
[10] Goldsmith & Stinson(No 2) [2023] FedCFamC1A 25.
CONCLUSION
In this case, the Court is satisfied that the respondent has had sufficient opportunity to provide proof of refinance to the applicant such as to retain the B Street, Town C property. At hearing, the respondent confirmed that he did not have proof of refinance. In the absence of an ability to refinance and pursuant to the final orders, the B Street, Town C property is to be sold.
The Court accepts the submission that the respondent should have 30 days in which to move from the B Street, Town C property and give vacant possession to the applicant. The trajectory of events up to this point mitigates against the respondent being allowed to remain in occupation of the B Street, Town C property pending sale. The likelihood of further litigation is not hard to reasonably foresee if the respondent remains occupying a property he strongly opposes being sold. Should the respondent fail to vacate the B Street, Town C property, then orders will be made as sought by the applicant for an enforcement officer to enter the property and to take possession of the property.
The Court is not prepared to accede to an oral application granting the applicant the power to make all decisions regarding the sale of the B Street, Town C property. It is a serious application with far reaching consequences for the respondent. Any such application should have been properly pleaded and with the respondent given sufficient notice under the Rules to be heard. As this was not done, I decline to make such an order albeit that such an order in these circumstances arguably has merit.
An order pursuant to section 106A of the Act is not required. Such an order is already contained in paragraph 1.21 of the final order save that the paragraph refers to an ‘authorised officer’ of the Court. For the sake of clarity, the Court will substitute the words “authorised officer” with “Judicial Registrar” in that paragraph to reflect the correct title of the Court’s delegate empowered to take such steps. I am satisfied that such an amendment is merely a ‘machinery’ provision necessary to implement the terms of the final order and does not impact on the terms of the final order itself.
If successful, the applicant seeks costs as set out above for counsel fees only according to scale. Section 117 of the Act provides that the Court may make an order for costs as the Court considers just. Having regard to sections 117(2A)(a), (b), (c), (d) and (e) of the Act, the Court considers that the modest sum sought by the applicant is just in all of the circumstances of this case. The sum shall be deducted from the amount payable to the respondent pursuant to paragraph 1.9 of the final order at settlement of the B Street, Town C property.
For all of the above Reasons, the Court makes orders as set out at the commencement of these Reasons.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 5 May 2023
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