Jacobs & Jacobs

[2023] FedCFamC2F 1306

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jacobs & Jacobs [2023] FedCFamC2F 1306

File number(s):		PAC 1248 of 2020
Judgment of:		JUDGE STREET
Date of judgment:		12 July 2023
Catchwords:		FAMILY LAW – PROPERTY – enforcement application
Legislation:		Family Law Act 1975 (Cth.)
Division:		Division 2 Family Law
Number of paragraphs:		4
Date of hearing:		12 July 2023
Place:		Sydney
Counsel for Applicant:		Mr J Shaw
Solicitor for Applicant:		Langenberg Law
Respondent:		Appeared in person

ORDERS

PAC 1248 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS JACOBS

Applicant

AND:

MR JACOBS

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	12 JULY 2023

THE COURT ORDERS THAT:

1.The application for an adjournment is refused.

2.The pursuant to Court Order No. 9 of 5 December 2022, that the Applicant Wife be appointed Trustee for the sale of B Street, Suburb C also known as Lot … in DP … (“the Suburb C property”; and, as Trustee for the sale, the Applicant Wife shall do all acts and things and execute all documents instruments and writing necessary to place the Suburb C property on the market for sale with a real estate agent of the Applicant Wife’s choice, and in particular shall list the Suburb C property for sale by public auction;

3.That the reserve price for the sale by auctions sale be agreed between the parties or failing their agreement, by no later than 7 days prior to the auction date, that the reserve price shall be determined and recommended by the Auctioneer.

4.That Langenberg Law be appointed solicitors to act in the conveyance on the sale of the Suburb C property.

5.That the Applicant Wife as Trustee for the sale cooperate in every way with the Auctioneer in relation to the sale, including but not limited to allowing inspection of the property at all reasonable times requested by the Auctioneer, and signing all documents requested by the Auctioneer in relation to the listing for sale of the property.

6.That the Applicant Wife as Trustee for the sale shall:

(a)Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached at such auction.

(b)Execute the Contract for Sale

(c)Execute all other documents required to complete the sale.

7.That upon completion of the sale of the Suburb C property the net proceeds of such sale are to be paid in the following manner and priority:

(a)In full discharge of all Commonwealth Bank of Australia (“CBA” Loan Nos. … and …, with simultaneous release of collateralisation of Loan Nos. … and … against the registered title … being that of D Street, Suburb E (“Suburb E property”) of against that are and release of any encumbered amount that has been collateralised by the mortgagee bank Commonwealth Bank of Australia under Loan No. against the registered title;

(b)In payment and adjustment in favour of the Applicant Wife, the sum equivalent to 50% of the total amount paid in discharge of Line of Credit Account No. … to the CBA (utilised during its existence by both the Applicant Wife and the Respondent Husband benefiting both the Suburb C property and the D Street, Suburb E property).

(c)In payment of agent’s commission and auction expenses due on the sale;

(d)In payment of legal costs due on the sale;

(e)In payment of the Applicant Wife’s actual legal costs fixed in the amount of $13,565; and

(f)Any balance of the proceeds from the sale of the Suburb C property, after the discharge of the obligations noted in Orders 7(a) to 7(e) above, be paid to the respondent husband.

8.That pending completion of the transfer or sale of the Suburb C property pursuant to these Orders, that the Respondent Husband shall be responsible for the payment of all mortgage instalments and outgoings including the payment of council and water rate, insurances, and utilities costs as and when they fall due in respect to the Suburb C property, and shall indemnify the Applicant Wife, and keep her indemnified against all proceedings, suits, claims or demands of whatsoever nature made against her in relation thereto.

9.That the parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

10.That in the events that either party refuses or neglects to execute any deed or instrument the Registrar or Deputy Registrar of the Parramatta Registry of the Court be and is hereby appointed pursuant to s106A of the Family Law Act 1975 (Cth.) to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the deed or instrument upon been satisfied by affidavit of such neglect or refusal. A party shall be deemed to be in default if that party refuses or neglects to sign any document within seven (7) days of being requested to execute that document, such request being made in writing.

11.The Respondent pay the applicant wife’s costs in the amount of $13,565, which the Court notes is intended to be met in accordance with the above priority set in order 7 and is otherwise if not met, and existing enforceable order.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. This is an application for an enforcement of orders made by this Court on 5 December 2022.  The enforcement application was filed on 3 July 2023.  The Court made orders on 3 July providing a timetable giving the respondent an opportunity to put on affidavit evidence and submissions as well as providing full written submissions by the applicant.  The applicant filed an affidavit in support of the application for enforcement.  The Court is satisfied on the evidence of the applicant that the respondent has failed to comply with the orders made by the Court in respect of the sale and/or refinancing of Suburb C also known as Lot … in DP … (“The Suburb C Property”). The Court finds that the respondent has contravened the orders made on 5 December 2022 in relation to the sale of the Suburb C property. 

2. The Court finds that it is appropriate to make orders under s 105 of the Family Law Act 1975 (Cth) (“the Act”) for enforcement. The Court rejected an application for adjournment by the respondent. The respondent sought to reagitate his request for an adjournment. No evidence has been put on by the respondent and, for the reasons earlier given, the Court was not satisfied an adjournment was appropriate and nothing said by the respondent identified any fresh ground for an adjournment. The respondent objected to the proposed costs order in circumstances under s 117 of the Act, taking into account the requirements under subsection (2). While the Court appreciates the parlous circumstances of the respondent, the non-compliance with orders made by this Court is a very serious matter and it was unreasonable for the Court’s orders not to be complied with.

3. It is accordingly appropriate for there to be a fixed costs order made, and the Court does propose to make the orders 1 – 6(d) as sought in the enforcement application. The Court however, does not make orders 6(e) and 6(f) as sought in the enforcement application.  The Court makes an order for payment of the applicant wife’s legal costs of the enforcement application fixed in the sum of $13,565.

4. The Court received the benefit of written submissions by the applicant in support of the enforcement order.  The court and adopts the submissions identified as follows.  The court is satisfied in these circumstances it is appropriate to make each of the orders including then order 6(h) as sought in the enforcement application, and then the letters will be renumbered so that orders 7, 8, 9 of the enforcement application will now become Orders 8, 9 and 10 in the published Court orders.

I certify that the preceding four (4) numbered paragraphs are a true copy of the ex tempore published oral reasons for Judgment of Judge Street.

Associate:

Dated:       18 October 2023