HC & DB

[2005] FamCA 1299

[2005] FamCA 1299

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA  Appeal No SA51 of 2005

AT MELBOURNE  File No. (P)HBM2359 of 2001

BETWEEN:

HC

(Appellant Husband)

and

DB

(Respondent Wife)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:          21 December 2005

DATE OF JUDGMENT:      21 December 2005

REASONS FOR JUDGMENT

APPEARANCES:

The appellant in person.

Mr Tucker, Solicitor, PO Box 1500, Launceston Tas 7250, appeared on behalf of the respondent wife.

HC & DB
SA51 OF 2005
DATE OF HEARING:  21 December 2005
DATE OF JUDGMENT:                21 December 2005

Catchwords:           Property, enforcement, appeal from Federal Magistrate requiring sale of real estate to enforce an order for payment of money, no error demonstrated, appeal dismissed.

1. This is an appeal against a decision made by Roberts FM on 25 July 2005, sitting in the Federal Magistrates Court at Launceston. The Federal Magistrate made orders for the sale of a property in Western Australia. From the sale, after payment of the expenses of the sale and outstanding rates, the sum of $50,000 is to be paid to the wife in accordance with orders made by the Federal Magistrates Court on 12 June 2001 together with any interest that may have accrued in relation to that sum in accordance with the provisions of the Federal Magistrates Court Rules 2001; and that the balance was then to be paid to the husband.

1. The wife was appointed as trustee for sale and there was a direction for the parties to execute necessary documents.  In default, the Registrar of the Federal Magistrates Court at Hobart was authorised to execute the documents.  There was liberty to apply in relation to execution and enforcement of the orders, and there was a costs order made in favour of the wife in the sum of $1987.50.

Background

1. By way of short background to the proceedings, the parties married in October 1974 and they separated in 1985.  They lived in Western Australia and then the wife moved to Tasmania after separation.  They had acquired at some stage, as joint registered proprietors, the property, the subject matter of the orders.

1. In 1995 the wife brought proceedings in the Family Court of Tasmania, seeking leave to commence property proceedings out of time.  Leave was granted to the wife and an application was then issued in December 1999 seeking an order for alteration of property interests.  Those proceedings were transferred to the Federal Magistrates Court, and in June of 2001 orders were made for the husband to pay to the wife $50,000 by way of alteration of property interests, and the wife was to transfer her interest in the home to the husband upon payment of the sum.  Each party was entitled to chattels in their possession and each was to indemnify the other against any liabilities encumbering any item of property to which they were entitled.  The husband had not partaken in those proceedings and had been given liberty to apply in relation to the orders.

1. The wife filed enforcement proceedings in November 2001, and the records demonstrate the husband was served with them.  On 7 January 2002 the enforcement proceedings came on before Roberts FM.  The husband did not appear, and an order was made adjourning those proceedings until 29 January 2002.  A warrant for the arrest of the husband was issued.  It was ordered to lie in the Registry.  The proceedings were further adjourned until 18 February 2002 and it is not quite clear what became of those proceedings other than they seemed to be either revived or reinforced by a Form 46 enforcement summons that the wife issued on 6 May 2002. 

1. The proceedings that were occurring in the Federal Magistrates Court in Tasmania appear to have motivated the husband to begin to partake in the proceedings, and he applied to the Family Court of Western Australia on 26 June 2002 to set aside the orders made by the Federal Magistrate under the provisions of s 79A of the Family Law Act.  The wife's attempt to have those proceedings heard in Tasmania was dismissed by Holden J.

1. The husband's s 79A application came on for determination. A trial was held in relation to it on 3 February 2004. The husband was self‑represented, the wife was represented by counsel. Penny J in a reserved judgment delivered on 2 April 2004 dismissed the application to set aside the original property orders. The husband commenced appellate proceedings against Penny J's orders, but that appeal was eventually deemed abandoned on 11 November 2004 because the husband did not comply with the requirements necessary for the appeal to be prosecuted.

1. That had the effect of then reviving the proceedings in Tasmania that had been held in abeyance awaiting the outcome of the Western Australian proceedings.  The revived proceedings came on for hearing before Roberts FM on 19 May 2005, and I have a transcript of the proceedings that occurred on that date.  The Federal Magistrate indicated to the parties that he would set aside a date in July for hearing the enforcement proceedings and the husband indicated that he was not particularly interested in the proceedings, that he felt that the whole proceeding had gotten off on the wrong foot at the beginning and that the orders that were made were unjust and inequitable.  He indicated that he would involve Her Majesty the Queen if the matter went on any further.  The conversation was terminated and the matter came back on for hearing on 25 July 2000. 

1. The hearing took place.  The husband was on the telephone and again I have a transcript of the proceedings.  It is apparent that the husband had made no endeavours to comply with the order for the payment of money and indicated that he had no intention to do so.  It was also apparent that he and the wife remained as the joint registered proprietors of the property in Western Australia.  That led to the Magistrate allowing an oral examination of the husband relating to his financial affairs.  It took place - it was fairly short - and that then led the Magistrate to publish reasons for judgment setting out the history of the matter and then relying upon the rules that were available to him in the Federal Magistrates Court.  He determined that he had power to enforce an order for the payment of money by operation of an order for the seizure and sale of real estate, amongst other matters, and determined that it was appropriate to do so. 

1. Having described the submissions that the husband was making relating to the original proceedings and of a supposed criminal conspiracy between the Federal Magistrate and solicitor for the wife, he said as follows, paragraph 11:

“He completely misses the point in relation to this matter.   What he appears not to understand is that the order of the court, 12 June 2001, is a final order for property settlement.  He has attempted unsuccessfully to have that order set aside.  He has attempted unsuccessfully to appeal that decision.  Consequently the order is a valid order which the court has been asked to enforce.”

1. He then made findings that the money was owed.  He made findings, as I said, that the husband had an interest in the property and that it was appropriate to make the orders that he made. 

1. I am satisfied that the husband was given procedural fairness in relation to the enforcement proceedings and that the Magistrate acted appropriately in relation to the matter, he being satisfied that there was an order in existence, that it had not been complied with, and that there were means appropriately available to the court to ensure the order is enforced. 

1. In the circumstances, nothing has been demonstrated by the husband in his oral or extensive written submissions that would indicate any error recognisable in relation to the processes and powers of the Federal Magistrate in making the orders.  In the circumstances, I propose to dismiss the appeal.

1. The orders are as follows:

1.        The appeal be dismissed.

2.The appellant pay $1000 towards the respondent's costs, such sum to be recovered from the sale of the property ordered on 25 July 2005 - from the real property.

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 20th day of January 2006

Associate: