Hilton and Hilton
[2016] FCCA 2799
•18 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HILTON & HILTON | [2016] FCCA 2799 |
| Catchwords: FAMILY LAW – Application to amend final orders – not a slip rule – application misconceived. |
| Legislation: Family Law Act 1975, s.79A Federal Circuit Court Rules 2001 (Cth), r.25B.62(2) |
| Cases cited: Varley & Varley [2016] FCCA 2609 |
| Applicant: | MS HILTON |
| Respondent: | MR HILTON |
| File Number: | MLC 7412 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 18 October 2016 |
| Date of Last Submission: | 18 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 18 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hannon |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the Respondent: | Mr Glezakos |
| Solicitors for the Respondent: | Le Brun Glezakos |
ORDERS
That the Husband vacate the property situate at, Property E (“the property”) within 21 days of this order.
That in default of the husband vacating the property and upon proof by affidavit of the husband’s failure to vacate the Court issue a warrant pursuant to rule 25B.62(2) of the Federal Circuit Court Rules 2001 (Cth) for the possession of the property authorising the an enforcement officer to enter the property described in the warrant and give possession of the property to the wife.
That the husband pay the costs of the wife fixed in the sum of $3,422.50 with that amount to be deducted from the husband’s share of the proceeds.
IT IS NOTED that publication of this judgment under the pseudonym Hilton & Hilton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7412 of 2015
| MS HILTON |
Applicant
And
| MR HILTON |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
In this matter I made final property orders on an undefended basis on 4 November 2015. The orders provided for the former matrimonial home, which was the main asset of the parties, to be sold and the net proceeds to be divided equally. The parties were otherwise to keep what they had in their possession. The husband was, and remains, in occupation of the home. The wife filed an application to enforce the orders on 15 March 2016. The return date of that application was adjourned by consent and some interim consent orders were made in chambers, which provided for the husband to be responsible for the payment of any arrears of the mortgage and rates, the appointment an agreed real estate agent and for the husband to prepare the property for sale.
The matter has come before me today for contested argument. The husband filed a response and supporting documents on 23 September 2016, seeking orders pursuant to section 79A of the Family Law Act 1975 (Cth) (“Family Law Act”) and seeking a just and equitable distribution of property. Section 79A applications need careful particularisation and simply seeking orders that are just and equitable does not address the core issues that must be addressed under 79A. I have recently had cause to discuss 79A applications in Varley & Varley [2016] FCCA 2609. It is necessary to plead with some specificity the grounds under section 79A that are relied upon and the basis for it. It is not simply a matter of saying the orders are unjust or inequitable.
If, for example, an applicant wishes to plead that section 79A, subsection 1 applies, it is necessary to state which of the particular subsections apply. That includes:
a)Subsection (a) which deals with miscarriage of justice;
b)Subsection (b) which deals with the order being impracticable;
c)Subsection (c) deals with a person defaulting with respect to obligations imposed under the orders;
d)Subsection (d) deals with circumstances that have arisen since the orders were made, of an exceptional nature; and
e)Subsection (e) deals with the proceeds of crime order.
The respondent does not indicate which of those particular subsections he relies on. Presumably, it is a miscarriage of justice.
Whether that is a discretionary matter for the Court, it is necessary to establish that there is something in the judicial process that has led to that result. It is not enough to say that a party was unrepresented or did not attend Court when given the opportunity to. It is well established that parties are to be given the opportunity to attend Court and participate, but that is not at a time of their choosing. What is also clear is that the respondent has had the benefit of remaining in the home of some several months after the final orders were made. The prejudice to the applicant is not having the benefit of the orders which she obtained.
The husband gives detailed evidence in his affidavit as to why he did not participate in the Court proceedings, and cites his medical conditions and the difficulties he had in facing the proceedings and provides annexures from various medical practitioners. He does not say what outcome he thinks would have been just and equitable. It is important to note that the parties were in a long marriage and the pool is very small. The husband’s lawyer sensibly said today that the costs that would be expended in fighting a more agitating section 79A application is likely to be as much, if not more than what the respondent might hope to receive.
Assuming the respondent was successful - and there are some real doubts based on the material that he has filed. The applicant points to correspondence from the husband’s lawyers, dated 24 June 2016 and 28 June 2016 which states specifically that their client would not be seeking to discharge the orders on that basis that they agreed to the adjournment of the application. That has resulted in further months of delay in the orders being implemented.
The husband today says that he is seeking an indulgence that he be able to remain in possession of the home until it is sold and that he had the opportunity of bidding on the property at auction. He makes clear in his affidavit that he has made inquiries but does not think he will be able to afford to retain the home. The wife opposes the husband’s application, really on the basis that it has taken until today for her to get orders that will see her have the benefit of the orders she originally sought last year and that she does not have confidence that husband will, in fact, comply with those orders.
In the circumstances, I am of the view that the indulgence the husband seeks should not be granted to him. This may well have been something that could have been arranged by consent some time ago when he engaged his lawyers, but it has been necessary for the matter to come today, particularly in circumstances where he filed for responding material that indicated that he was going to seek to set aside the orders. The parties agree that order 11 of the orders made on 29 July 2016 should be discharged. That was providing for the net proceeds of sales to be held in the wife’s solicitor’s trust account on behalf of both parties and that was pending the husband filing responding material.
That order is now no longer necessary. The final orders made on 4 November 2015 will remain in force, save that I will make an order that the husband vacate the property within 21 day of today’s date. If the husband fails to vacate the properties within 21 days then a warrant for vacant possession of the property will issue. The husband is still at liberty to bid at the auction, but in my view, in the circumstances, whilst entitled to make sure that the sale of the property occurs in a timely manner, particularly given the delays that there have been to date.
The wife seeks costs in accordance with the Federal Circuit Court’s scale of costs which total $3,422.50. The wife has been wholly successful in this application, and particularly in an application of this type, in my view, it is appropriate to order costs. The costs order is not opposed; the issue is when the payment is going to be made.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 31 October 2016
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