Jacques and Jacques

[2016] FCCA 1862

FEDERAL CIRCUIT COURT OF AUSTRALIA

JACQUES & JACQUES [2016] FCCA 1862

Catchwords:
FAMILY LAW − Enforcement of a property order − whether applicant must remove a caveat to allow payment.

Legislation:

Family Law Act1975 (Cth), ss.79, 117B

Federal Circuit Court Rules 2001 (Cth), rr.16.05(2)(e), 25B.2.2,

25B.2.3, 25B.11, 25B.13, 25B.22

Applicant: MS JACQUES

Respondent: MR JACQUES

File Number: DGC 138 of 2015

Judgment of: Judge Phipps

Hearing date: 8 July 2016

Date of Last Submission: 8 July 2016

Delivered at: Dandenong

Delivered on: 22 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Gates

Solicitors for the Applicant: Annette Wolfe Barrister & Solicitor

The Respondent: Appearing on their own behalf

ORDERS

1. That the respondent pay the applicant the sum of $44,000 (“the amount”) being the balance outstanding pursuant to paragraph 16 of the Order made in the Federal Circuit Court of Australia between the parties on 30 October 2015 (“the October order”).

2. That the respondent pay interest on the amount at the rate of 8% from 29 November 2015 until the date of payment.

3. That the respondent pay the applicant’s costs fixed at $4,312.

The court declares that:

1. The applicant is not obliged to remove Caveat number (omitted) currently held over the property at Property P (“the Property P property”) being the land more particularly described in Certificate of Title Volume (omitted) other than in accordance with paragraph 27 of the October order.

2. The applicant is entitled to request the Court to issue an Enforcement Warrant for payment of the amount, interest on the amount in accordance with paragraph 2 and the costs ordered by paragraph 3 of this order and paragraph 3 of the order made 16 May 2016 in this application.

IT IS NOTED that publication of this judgment under the pseudonym Jacques & Jacques is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 138 of 2015

MS JACQUES

Applicant

And

MR JACQUES

Respondent

REASONS FOR JUDGMENT

1. The applicant wife applies for enforcement of a property order made by consent on 30 October 2015.  The respondent husband has not paid $44,000 of the $200,000 he was required to pay under the order.  He says that he cannot make the payment until the applicant removes a caveat over the property he owns so that he can increase the amount of the mortgage by the amount required to pay the applicant.

2. Prior to separating the parties conducted a business, (business omitted), at Property T.  The order of 30 October 2015 is both parenting and property orders.  The order required the husband to pay to the wife a cash payment of $200,000 in two amounts and for the wife to do a number of things necessary to transfer the ownership of the business to the husband.  The order provided for the husband to pay the wife maintenance and permitted the wife to lodge a caveat over a property owned by the husband.

3. The property orders included the following:

   16.  The husband pays to the wife a cash payment of $200,000 (TWO HUNDRED THOUSAND DOLLARS) (“the payment”) as follows:

   16.1 the sum of $85,157 to be paid to the wife immediately from the funds held in trust by Marino Moller Lawyers, with the wife to provide a sealed copy of these orders to Marino Moller Lawyers and the provision of same be sufficient for Marino Moller Lawyers to release those funds.

   16.2. The balance of $114,843 to be paid to the wife by way of Bank Cheque on or before the expiration of 30 days (“the second payment date”) of the date of sealing these Orders.

   22 That the husband does all acts and things necessary to facilitate the wife obtaining a home loan in her name.

   23. That the husband pays to the wife by way of spousal maintenance the sum of $500 (FIVE HUNDRED DOLLARS) (“the maintenance”) each week commencing on 30 October 2015 and continuing each and every Friday thereafter until 30 June 2023 (“the end date”).

   24.  The husband retain the property at Property P (“Property P)” being the land more particularly described in Certificate of Title Volume (omitted) on trust for the parties until the end date.

   25. The husband be responsible for payment of all mortgage payments, apportionable rates, taxes and outgoings of or with respect to Property P of whatsoever nature or kind.

   26.  That save for the purposes of the payment in paragraph 16.2 above the husband is hereby restrained from dealing in any way with Property P until all payments pursuant to paragraph 22 have been made.

   27.  The wife be permitted to retain Caveat number (omitted) currently held over Property P until the end date at which time she will sign all documents necessary to remove the said Caveat from Property P at the expense of the husband.

4. The order then contains a provision for the sale of assets owned by the husband in the event of default in payments of maintenance.  The order does not contain a provision for sale of property in the event that the husband defaults in payment of the $200,000 or any part of it.

5. When this application first came before me on 16 May 2016 the self-represented husband had not filed any documents.  He said that he required the removal of the caveat so that he could borrow a further $44,000 on the security of the Property P property.  Since he had not filed any documents I could not determine that day whether I could make an order that would put into effect what the husband proposed.  I adjourned the application to 8 July 2016 and included in the order:

   That the respondent do file and serve a response and affidavit setting out the precise form of order that he proposes and evidence of his ability to carry out the order by not later than 14 days prior to the trial date.

6. The respondent did not file a response but filed an application in a case on 21 June 2016 applying for  orders:

   1.    To access equity from the Property P property to pay remaining $44,000 per order 26 of the final orders.

   2.     To have access to the children’s motorbikes when I have access.

   3.    Object to court costs.

   4.    No interest be applicable on $44,000.

7. The husband filed an affidavit which showed he had a letter of offer from the (omitted) Bank to increase the balance on the current loan on the Property P property to $320,000.  He said in the affidavit that the current balance was $276,296.16 leaving $43,703.84 available to pay the applicant the balance of $44,000 which was still owed.  He attached a further document which was a loan offer from the (omitted) Bank which he said he had sent to the applicant on 10 December 2015.  He said this loan would have refinanced the property, removed the applicant’s name from the loan and bank accounts and completed the final orders.

8. He says in the affidavit that in order to fully comply with the final orders the applicant needs to be taken off the home loan and the caveat needs to be withdrawn so that he can refinance the loan.  The applicant resists any order or course of conduct which would involve withdrawing the caveat and then lodging a fresh caveat.  She considers this constitutes a risk to the security of payment to her of spousal maintenance of $500 per week until 30 June 2023.

9. In her application in a case the applicant applies for orders:

   a)That the Court conduct an enforcement hearing under subdivision 25B.2.2 of the Federal Circuit Court Rules 2001 (Cth);

   b)That the real property situated at Property P be sold and the proceeds distributed first paying costs and legal fees associated with the sale, paying the applicant $44,000 pursuant to paragraph 16.2 of the order then paying to the applicant the sum of $204,000 for the spousal payment specified in paragraph 23 of the order and finally the balance to the respondent.

10. The applicant then proposes that if the funds are insufficient to make the payments she proposes that the business of (business omitted) be sold and the proceeds after payment of costs and legal fees be applied by paying the amount then outstanding to her and the balance to the respondent.

11. The respondent has paid maintenance of $500 per week to the applicant except that the applicant alleges that the payment in May was late by several days.  The respondent says it was one day late.  Even if it was several days late that is not sufficient to constitute a default under paragraph 23 of the order, the maintenance provision.  Paragraph 23 does not require that time be of the essence.  One payment several days late after six months of payments does not constitute a default sufficient to trigger the default clause which requires immediate payment of the whole of the balance due until 30 June 2023.

12. The applicant’s affidavit is an enforcement application. It is not an application under s.79 of the Family Law Act1975 (Cth) which gives the Court power to order transfer of property and sale of property. Nor is it an application under s.79A which gives them the power to vary orders made under s.79.

13. The order does not contain a provision for sale of the Property P property if the respondent defaults in payment of the $200,000 or any part of it.  Any sale must take place under the provisions of the Federal Circuit Court Rules2001 (Cth).

14. The respondent argues that paragraph 26, the restraint on him dealing with the Property P property, no longer applies because he has complied with paragraph 22.  Paragraph 26 reads:

    That save for the purposes of the payment in paragraph 16.2 above the husband is hereby restrained from dealing in any way with Property P until all payments pursuant to paragraph 22 have been made.

15. Paragraph 22 reads:

    That the husband does all acts and things necessary to facilitate the wife obtaining a home loan in her name.

16. The respondent argues that he has complied with paragraph 22 and the applicant has obtained a home loan in her name. The reference to paragraph 22 in paragraph 26 makes little sense because paragraph 22 does not require any payment. The reference may have been meant to be paragraph 23, the maintenance provision. The applicant has not applied for amendment under the slip rule, r.16.05(2)(e). For the purpose of this application treating the reference in paragraph 26 as referring to maintenance payments makes sense.

17. The applicant is permitted to retain the caveat she has over the Property P property until the end date which is the June 2023, the date maintenance payments end.  Paragraph 24 requires the husband to retain the Property P property on trust for the parties until the end date.  Since the respondent must hold the property on trust the applicant has a form of security interest for the maintenance payments sufficient to support a caveat.  A restraint on the husband dealing with the Property P property until all maintenance payments are made fits in with the scheme of paragraphs 24 and 27.

18. The provision in paragraph 26, which excludes payments for the purpose of paragraph 16.2, the $200,000 payment, must mean that the husband is permitted to deal with the Property P property for the purpose of raising money to make the payment.  Paragraph 27 means that if he is to do this he has to accept that the applicant is entitled to retain her caveat.  She is not obliged to remove it, or remove it and then lodge a new caveat.

19. The conclusion from this interpretation is that the husband is in default in payment of $44,000 and the applicant is entitled to enforce this payment.

20. Section 117B of the Family Law Act 1975 (Cth) provides for payment of interest if there is default in any payment under an order. The respondent is in default and there is no reason why he should not pay interest. The current rate is 8%.

21. Rule 25B.13 sets out the general enforcement powers of the Court.  Relevantly it reads:

    The Court may make any of the following orders:

    (a)  an order declaring the total amount owing under an obligation;

    (b)  an order that the total amount owing must be paid in full or by instalments and when the amount must be paid;

    (ba)………

    (c)  an order for enforcement (see rule 25B.11);

22. An order for enforcement in subdivision 25B.11 includes an order for seizure and sale of real property:

    An obligation to pay money may be enforced by one or more of the following enforcement orders:

    (a)  an order for seizure and sale of real or personal property, including under an Enforcement Warrant (see Subdivision 25B.2.3);

23. An enforcement warrant is executed by the enforcement officer, the Sheriff or a delegate of the Sheriff, an Officer of the Court or a person appointed by the Court.  The procedure for obtaining an enforcement warrant and the process of execution is set out in subdivision 25B.2.3.  Subdivision 25B.22 permits a payee, the applicant in this case, without notice to the payer, in this case the respondent, to ask the court to issue an Enforcement Warrant by filing an affidavit and the Enforcement Warrant sought and a copy of it for service.  I will make a declaration that the applicant is entitled to request an Enforcement Warrant. and not make an order for the issue of an Enforcement Warrant in this proceeding.  This means that all the appropriate steps which will enable the Enforcement Officer to execute the warrant will be done.

24. In their affidavits the parties are critical of each other’s behaviour.  None of that is relevant.  What is relevant is the terms of the consent order and whether or not the respondent has defaulted.

25. The respondent in his Application in a Case applied for an order to have access to the children’s motorbikes when he has access.  This is an application for a variation of the existing children’s orders and cannot be done in this enforcement process.

26. The applicant applies for costs. Costs are dealt with in s.117 of the Family Law Act 1975 (Cth). The relevant considerations under s.117A(2A) are paragraphs (a) and (d), the financial circumstances of the parties and whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.

27. The proceedings were brought about by the failure of the respondent to comply with the previous order of the court.  He has the ability to pay costs through his income from the (business omitted) and the equity in the Property P property.  The respondent should pay the applicant’s costs.

28. I will allow item 1 of the fees under schedule 1 of the Federal Circuit Court Rules 2001 (Cth), an additional amount of $500 preparation for the second hearing and counsel’s fees.

    Initiating an application up to first court date:       $2,162

    Preparation for second hearing:  $   500

    Counsel’s fee:  $1,650

    Total   $4,312

29. The respondent applies to set aside the order made 16 May 2016 that he pay the wife’s costs thrown away fixed at $1,650.  There is no reason why this should be done.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 22 July 2016