Hilton and Parham

[2018] FamCA 205

FAMILY COURT OF AUSTRALIA

HILTON & PARHAM [2018] FamCA 205

FAMILY LAW – PROPERTY – enforcement – where wife does not participate – where the original orders should be seen to be varied to include an immediate vacating by the wife.

Family Law Act 1975 (Cth)

APPLICANT: Mr Hilton

RESPONDENT: Ms Parham

FILE NUMBER: MLC 987 of 2016

DATE DELIVERED: 23 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Karlis

SOLICITOR FOR THE APPLICANT: Tasiopoulos Lambros & Co

THE RESPONDENT: No appearance

Orders

1. That the wife forthwith vacate B Street, C Town, Victoria.

2. That the application in a case filed 22 February 2018 is otherwise dismissed.

3. That the reasons be transcribed and be made available to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hilton & Parham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 987 of 2016

Mr Hilton

Applicant

And

Ms Parham

Respondent

REASONS FOR JUDGMENT

1. By application in a case filed 22 February 2018, Mr Hilton, to whom I shall refer as the husband, seeks three orders against Ms Hilton who now seems to be known as Ms Parham and to whom I shall refer as the wife.  The genesis of this application is in orders that were made by consent of the parties in this Court by a registrar on 23 February 2017.  Leaving aside the irrelevant matters, the main part of the order was that the husband had the opportunity to buy out the wife.  That seems to have all occurred, but for reasons that are not entirely relevant now, the wife has not vacated the premises.  The current application seeks an order that the respondent wife vacate the property at B Street forthwith.

2. The matter has been before the Court on two previous occasions, and on the first occasion, the wife asked for an adjournment on the basis that she had only just been served.  Because I was concerned about what had happened, I granted that adjournment even though she was not present.  On the second occasion before the Court, the wife again did not attend but sent a document which seemed to be some form of explanation as to why she had not vacated the C Town property.

3. One of the curious things about that way of doing things from the wife’s perspective was that she makes clear that she works in a legal environment, although I am not entirely sure in what capacity.  In any event, she had had legal advice previously and certainly had legal advice on the day that the final orders were made.  In any event, I adjourned the matter again because I was not at all comfortable that the Court was being told the full story about what had happened.

4. As a consequence of that direction, the husband filed an affidavit which runs to 48 paragraphs in which he sets out the correspondence throughout the latter part of 2017 with the wife.  Most of it seems to relate to the fact that the wife was going to stay in the property but on condition that she paid rent and provided a bond.  In what I can only say I considered to be bizarre statements by the husband, he seemed content for the bond to be waived, but was told by his own agent that he was not allowed to do that.  Whatever the correct position, the correspondence from the wife to the husband almost on a weekly basis throughout the latter part of 2017 indicated that she was going to get the bond and do a variety of things, none of which have eventuated.

5. The husband’s evidence, which has not been challenged by the wife by any response at all, is that on 18 December he sent an email and provided her with a website to enable her to obtain bond assistance from Housing Victoria.  He then said that a month later on 19 January, he received an email from the wife confirming that she would pay the bond by the end of January.  That did not happen, and on 7 February, he instructed his lawyers to issue an application “to enforce the consent orders”.  He then said that on 9 March he received an email from the wife advising that she had been served with the application that is now before the Court and that she apologised for not paying the bond, finalising the lease or making alternative arrangements.

6. Why all this has happened remains a mystery to me, but the only order that I am asked to make today is that the wife forthwith vacate the property at C Town.  There is no opposition from the wife, and leaving aside the question of the power of the Court to make an order as simple as that because it does not seem to me necessarily to be an enforcement order, it may be an order that should have been made in the orders on 23 February 2017 when the final property orders were made. 

7. On that basis, I am content to vary the orders of 23 February 2017, although I will not put that into the order itself.  I am varying the order so that the order will read that the wife vacate the property at B Street, C Town forthwith.  The application also sought costs on an indemnity basis, but the solicitor for the applicant does not press that.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 March 2018.

Associate: 

Date:  5 April 2018