Ipsen & Ipsen (No 2)
[2024] FedCFamC2F 942
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ipsen & Ipsen (No 2) [2024] FedCFamC2F 942
File number(s): DGC 2961 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 July 2024 Catchwords: FAMILY LAW – Property – Warrant for possession of property issued – Emails stand as application and responses – Not disputed that respondent has not vacated subject property – Interests of justice provide that a warrant for possession should be issued – Orders mean what they say. Legislation: Federal Circuit and Family Court of Australia (Family law) Rules 2021 Cases cited: Ipsen & Ipsen [2024] FedCFamC2F 692 Division: Division 2 Family Law Number of paragraphs: 32 Date of last submission/s: 17 July 2024 Date of hearing: 18 July 2024 Place: Melbourne (in Chambers) Solicitor for the Applicant: Ms Hale, Johnstone & Reimer Lawyers Solicitor for the Respondent: Ms Almeida, Queenie Thompson and Associates ORDERS
DGC 2961 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS IPSEN
Applicant
AND: MR IPSEN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The Federal Circuit and Family Court of Australia (Family law) Rules 2021 (“the Rules”) be varied to the effect that the Applicant Wife’s solicitor’s email of 11 July 2024 be and is an application for a warrant for possession and the email from the Respondent Husband’s solicitors of 17 July 2024 at 11.57 am and the email of the same date at 12.13 pm be and are a response to the application for a warrant for possession.
2.It is unnecessary for there to be further appearances for the parties and it is appropriate for the matter to be dealt with in Chambers.
3.Pursuant to Rule 11.56 of the Rules, a warrant for possession of the property situate at and known as F Street, Suburb H in the state of Victoria more particularly described in the Certificate of Title Volume … Folio … (“the Suburb H property”) be issued authorising an enforcement officer to enter the Suburb H property and give vacant possession to the Applicant Wife, MS IPSEN (“the warrant for possession”).
4.For the purpose of order 3 herein, the enforcement officer shall have the following powers:
(a)To enter and search the Suburb H property with the use of force if necessary;
(b)To seize the Suburb H property;
(c)To remove the Respondent Husband, MR IPSEN, from the Suburb H property, he being the person who is not lawfully entitled to be on the property pursuant to the orders made 21 May 2024;
(d)To remove any other persons present and to vacate the Suburb H property;
(e)To take possession of and secure against any interference of the Suburb H property; and
(f)To deliver vacant possession of the Suburb H property to the Applicant Wife to the exclusion of the Respondent Husband and all others.
5.The warrant for possession lie in the Chambers of Judge O’Shannessy until 10.00 am on Tuesday 23 July 2024 and failing advice by email from the Applicant Wife’s solicitors that the Respondent Husband has vacated the Suburb H property, the warrant for possession be forwarded to enforcement officer/s.
AND THE COURT DECLARES THAT:
6.For the purpose of Rule 11.56(1) of the Rules, the Respondent Husband has had notice of the order to be enforced since 21 May 2024 (57 days).
AND THE COURT NOTES THAT:
A.These orders, the orders of 4 May 2023, and the reasons for judgment of these orders will be provided to the enforcement officer/s at the same time as the warrant for possession.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
I have today determined in Chambers, without appearances from the parties, what I regard as an application of the Applicant Wife for a warrant for possession to issue against the Respondent Husband regarding the property known to the parties as “the [F Street, Suburb H] property”. The Applicant Wife pressed for such an order by email to my associates in Chambers on Thursday 11 July 2024 at 8.40 am.
Relevant parts of that email, cc’d to the Respondent Husband’s solicitors, included the following:
…
The Respondent has failed to vacate ‘the [Suburb H] Property’ in contravention of Order 4 of the aforementioned orders. The Respondent had 7 days to provide vacant possession of that property to our client, and now after almost two months, he has failed to do so.
Order 5 allows for a warrant for possession of the property to be immediately issued by the relevant authority and enforced as soon as practicable if the Respondent has contravened Order 4. We write to you to today to ask whether it is possible for that warrant to be issued and enforced without the parties’ further attendance upon the Court. Please otherwise advise of any further information or documentation the court may require.
…
I am compelled by law to follow the Federal Circuit and Family Court of Australia (Family law) Rules 2021 (“the Rules”), but also to act without undue formality and to attempt to reduce legal costs to the parties where possible. I am satisfied that I should regard the email of 11 July 2024 from the Applicant Wife’s solicitors as an application for the issue of a warrant for possession of the Suburb H property, and the emails from the Respondent Husband’s solicitors as a response thereto. For the reasons that follow, I am satisfied that it is appropriate to deal with this matter in Chambers and that further appearances from the parties or either of them are neither warranted, necessary or appropriate.
BACKGROUND
The Applicant Wife is 67 years and the Respondent Husband is 71 years. They are both retired, but between them have interests in not insubstantial property. The parties were married in 1977 and separated in August 2019. The Applicant Wife issued proceedings seeking property settlement orders soon after separation, in August 2021.
Those property settlement proceedings were, sensibly, resolved by the consent of the parties when final consent orders were made before another Judge on 4 May 2023. At that time, both parties were represented by solicitors and counsel. The orders are detailed and apparently carefully drafted and deal with interests in a number of different properties, including the former matrimonial home.
For the purposes of this application, it is only necessary that I refer to and recite order 2 of the 30 different orders made that day:
2.Within one hundred and twenty (120) days of the date hereof (“the [Suburb H] Transfer Date”) the Respondent Husband shall do all such acts and things and sign all things as may be necessary to:
a)Transfer his right, title and interest in the property known as and situate at [F Street, Suburb H], more particularly described in Certificate of Title Volume […] Folio […] (‘the [Suburb H] Property’) to the Applicant Wife at her expense; and
b) Repay and discharge mortgage registered to [G] Pty Ltd Mortgage No. […] (“the [N Company] Mortgage”) and any other encumbrances upon the [Suburb H] Property at his sole expense (“the [Suburb H] Transfer”).
It is undisputed that those orders were not complied with or not entirely complied with.
The Applicant Wife issued enforcement proceedings and those proceedings came before me for a contested hearing on 21 May 2024, that is roughly a year after the final consent orders were made. I recall the matter coming before me and the material upon which the parties relied. There was little dispute about the underlying circumstances of a long marriage, the effect of the final orders, and the fact of the Respondent Husband’s default in complying with all of the orders.
Rather than press for immediate and more draconian enforcement provisions, counsel for the Applicant Wife joined with the solicitor for the Respondent Husband in requesting that the matter be stood down for the purpose of an attempt to negotiate a resolution of the enforcement application. Later that day, the parties presented to me a proposed minute of orders by consent that disposed of the enforcement application. The effect of those orders was to give the Respondent Husband another opportunity to comply with the now more than a year old final property orders.
It is unnecessary to recite all of the carefully drafted provisions of the orders. The circumstances of the orders are referred to in Ipsen & Ipsen [2024] FedCFamC2F 692. Order 4 of those orders of 21 May 2024 provided as follows:
4.That within 7 days of these Orders the Respondent Husband vacate the [Suburb H] Property and provide vacant possession to the Applicant Wife.
It is clear that that further or new deadline for the provision of vacant possession of the Suburb H property, 28 May 2024, came and went without the Respondent Husband vacating that property.
Application for warrant for possession and response
On 11 July 2024, that is about a month and a half after the new or further deadline, the email referred to above from the Applicant Wife’s solicitors was received.
The following day, 12 July 2024, my Associate emailed the following to the parties:
Good afternoon practitioners,
Chambers acknowledges receipt of below email and request.
Order 4 of the Orders of 21 May 2024 provides as follows:
4.That within 7 days of these Orders the Respondent Husband vacate the [Suburb H] Property and provide vacant possession to the Applicant wife.
His Honour has requested that the solicitor for the Respondent address the following:
1.Does the Respondent dispute that he failed to provide vacant possession of the [Suburb H] property within 7 days of the date of the Orders of 21 May 2024?
2.Does the Respondent dispute that he has continued to fail to provide vacant possession of the [Suburb H] property?
His Honour requests a response to the above via email before 4.00 pm next Tuesday 16 July 2024, upon receipt of which he will determine the request from the solicitor for the Applicant.
…
On the following Monday, 15 July 2024, the solicitors for the Respondent Husband advised the solicitors for the Applicant Wife that due to a difficulty with the email address previously provided by them, the Husband’s solicitors had only just received the 11 July 2024 email seeking a warrant of possession that day.
Later that day, the solicitors for the Applicant Wife provided a further email to my Associate and to the solicitors for the Respondent Husband explaining the glitch in the email process but confirming that by this time the email addresses were working.
After receipt of the advice that the Respondent Husband’s solicitors had only received the email that day, my associate sent a further email to the parties’ solicitors as follows:
Good afternoon,
Thank you for notifying Chambers of this issue, [solicitor for the Applicant Wife].
[Solicitor for the Respondent Husband], could you please confirm receipt of Chambers’ email of 12 July 2024 and that you will be able to provide a response to his Honour’s questions therein within the timeframe indicated.
…
That evening, that is the evening of 15 July 2024, at 9.05 pm, the Respondent Husband’s solicitors responded as follows:
Dear Associate,
I have to obtain my client’s instructions in relation to this email.
My client has advised that he is only able to see me on Wednesday- in light of same I’ll be in a position to respond on Wednesday.
As discussed, i have issues with my email and emails have been sent to another account. I have since this discussed this Ms Hale and she has rectified the issue.
We apologise for any inconvenience this may have caused.
My Associate’s response the following day, 16 July 2024, was as follows:
Dear [solicitor for the Respondent Husband],
Thank you for your response.
His Honour grants leave for the Respondent’s response to be emailed to Chambers by 4.00 pm on Wednesday 17 July 2024 and not later.
Please ensure that the Applicant’s solicitor is cc’d into same.
…
Following that request, no further action was taken. On Wednesday 17 July 2024, at 11.57 am, the Court and the Applicant Wife’s solicitors received what I regard as a response to an application from the solicitors for the Respondent Husband. That response was as follows:
Dear Associate,
We confirm that we act on behalf of the respondent.
Our client has instructed us that he is in the process of packing up [Suburb H] to move. Our client struggling to secure alternative accommodation and if he is to be evicted he will be rendered homeless.
Our client has asked the applicant whether he can remain at [Suburb H] for an extra month until he secure accommodation. If he should find earlier accommodation he will move out.
Our client has instructed us that he is packing up the house and has all intentions of moving he has no intentions of defying or breaching the said orders.
We respectfully request that our client be granted an indulgence so that he can secure alternative accommodation and not be homeless.
Our client has requested that we send the Courts picture proving that he has initiated the move from [Suburb H].
That day, Wednesday 17 July 2024, the solicitors for the Applicant Wife replied to the response of the Respondent Husband as follows:
Dear Associate,
We refer to the below email from [solicitor for the Respondent Husband] and simply wish to call the court’s attention to the fact that on 1 May 2023 [Mr Ipsen] consented to Final Orders which required him to vacate the [Suburb H] property by 25 August 2023. In addition, on 21 May 2024, [Mr Ipsen] consented to Final Orders which required him to vacate the [Suburb H] by 28 May 2024. We would seek that [Mr Ipsen] be granted no further indulgences.
…
Later the same day, the solicitors for the Respondent Husband replied to the reply as follows:
Dear Associate,
If our client is not granted an indulgence, he will be homeless.
We respectfully request that a warrant is not obtained.
No further applications or responses have been received or requested to be provided.
Decision as to warrant for possession
Given the history above, I am satisfied of the following matters:
·The Respondent Husband is on notice of the final orders;
·The Respondent Husband has not complied with order 4 of the final orders;
·The Respondent Husband is on notice of the application for a warrant for possession;
·The chain of emails backwards and forwards should be treated as a formal application for a warrant for possession and a response seeking to postpone such a warrant for a further month or so;
·The enforcement of the warrant for possession may potentially cause the Respondent Husband personal difficulty and hardship.
The final orders of 4 May 2023 meant what they said. The enforcement orders of 21 May 2024 meant what they said. The period of more than a year between the making of the orders and the making of the enforcement orders was a not ungenerous indulgence to the Respondent Husband.
The enforcement of orders is a matter for the court’s discretion. In the circumstances where the enforcement application was finalised more than a year after the original orders were made, giving the Respondent Husband a further opportunity to comply with the orders, including order 4, is a significant matter and weighs heavily on me.
The time for the Respondent Husband to provide vacant possession, as agreed and ordered on 21 May 2024, was the end of 28 May 2024. Since then, the Respondent Husband has had the whole of June and half of July to comply with the orders. In substance, he has been provided with a further indulgence of a further 6 weeks.
I take into account his response and plea to the Court that the execution of a warrant for possession will render him homeless. Whether or not that is so, that circumstance is overborne by the fact that after proceedings commenced in August 2021, final orders were made a year and a half later on 4 May 2023, the orders were not complied with but then when the enforcement proceedings came on for hearing on 21 May 2024, by agreement, the Respondent Husband was provided with a further opportunity to comply with the orders, including order 4 – that being the order relating to vacant possession of the Suburb H property. I refer to and repeat the provisions of order 4 of the enforcement orders of 21 May 2024:
4.That within 7 days of these Orders the Respondent Husband vacate the [Suburb H] Property and provide vacant possession to the Applicant Wife.
I infer, and I am satisfied, that the context to that order was the Respondent Husband’s representation, or implied representation, that he could and would comply with that order. That is, vacate the Suburb H property within 7 days.
I must also consider the interests of justice of both parties, not only the hardship, inconvenience and difficulty for the Respondent Husband of the warrant for possession. I must consider the interests of the Applicant Wife of being held out of a just and equitable share of the matrimonial property of the parties after a long relationship, and of that situation continuing. I also take into account that the orders of the Court were made on the basis that they must be complied with by both parties and they were not merely an expression of what would be a good idea or an acceptable thing to happen sooner or later.
In all of those circumstances, I am satisfied that it is proper and in the interests of justice that a warrant for possession of the Suburb H property issue this day.
However, in what may be an error of an overcautious approach, I will direct that the warrant for possession lie in my chambers for a further 2 working days plus a weekend, that is a further 4 days, before being provided to the authorities for execution. That further indulgence may be a further injustice to the Applicant Wife but I am satisfied in all of the circumstances that the benefit to the Respondent Husband of a further very short delay in the execution of the warrant outweighs that further injustice to the Applicant Wife.
For the assistance of the authorities when executing the warrant for possession, I am satisfied that the enforcement officer/s should be assisted by the background and context to the warrant they will execute.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 18 July 2024
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