Kappas and Kappas (No.5)

[2019] FCCA 1141

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPPAS & KAPPAS (No.5) [2019] FCCA 1141

Catchwords:
FAMILY LAW – Application in a case seeking enforcement of orders – previous orders by way of enforcement made – respondent files response to application in a case seeking to set aside orders pursuant to section 79A.

Legislation:

Family law Act 1975 (Cth), s.79A

Applicant: MS KAPPAS

Respondent: MR KAPPAS

File Number: MLC 7430 of 2015

Judgment of: Judge Harland

Hearing date: 15 April 2019

Date of Last Submission: 15 April 2019

Delivered at: Melbourne

Delivered on: 15 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Gardiner

Solicitors for the Applicant: Kennedy Guy Lawyers

Counsel for the Respondent: Mr Serra

Solicitors for the Respondent: Nevett Ford Lawyers

ORDERS

1. The husband pay the wife the sum of $195,000 on or before 29 April 2019. 

2. The balance of this application filed 26 March 2019 and any application pursuant to section 79A of the Family Law Act 1975 be adjourned to a date to be fixed.

3. Costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Kappas & Kappas (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7430 of 2015

MS KAPPAS

Applicant

And

MR KAPPAS

Respondent

REASONS FOR JUDGMENT

1. 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.

2. This is an application in a case filed by the wife seeking enforcement of orders that were made on 2 July 2018. This matter has a lengthy history which I am not going to set out, due to the pressures of time. The issues are well set out in the primary reasons and also in the appeal reasons. Certainly the history of this matter is such that it has been necessary for this matter to come back before me because of ongoing issues with respect to the husband’s noncompliance with orders, and he has continued to be, and it is clear from the correspondence annexed to the affidavit of the wife, incredibly abusive to the wife and her solicitor.

3. He has now instructed solicitors and comes to the Court filing a response to the application in the case filed 26 March 2019, an affidavit last Friday, seeking, in essence, to make an application under s.79A of the Family Law Act 1975 to set aside the property orders. The wife’s position today is to seek orders in accordance with the minute of order she has handed up, whilst giving the husband time to file his application, pursuant to an initiating application in a proper form, with respect to his application under s.79A.

4. The wife says that she will be prejudiced if the husband’s request, which, in essence, is to provide him 30 days to make a payment of $195,000 to her rather than the amount of $259,491, and raises the fact that she has purchased a property some two years ago now, which is due to settle in June. I do not have the details as to what funds are required for that settlement. It is clear from the material that the husband has filed that there is a dispute between the parties as to whether or not the wife complied with the terms of the orders made for the sale of Property A made on 2 July 2018.

5. The husband has now, today, signed the discharge of mortgage, which addresses one of the issues in dispute. The husband also consents to order 2 of the minute of orders sought by the wife, which provides for the immediate release of the funds held on trust by her solicitors to her as part payment of her entitlement. I will make that order by consent. The husband’s counsel indicated this afternoon that the husband has funds in his account that will enable him to make the payments to the wife of $195,000, which is less than the amount sought. He seeks to make the payment in two instalments and seeks 30 days. 

6. The property that the husband is currently living in is to be sold. Then he seeks that he have conduct of that sale rather than the wife, raising the issues that he sets out in his affidavit. As I indicated earlier, with the history of this case and the findings that I have made previously with respect to the husband, in my view, this is a matter where another judge will need to hear the balance of the substantive applications before the Court, and I intend to recuse myself from further hearing this matter. 

7. What I will do today is make order 2 by consent, that is, that the $141,623.63 held in trust by Kennedy Guy Lawyers be forthwith paid to the wife as part payment of her entitlement as specified in the orders made on 24 March 2017. I note that there is some substantial dispute between the parties with respect to the sale and costs incurred of the other property of the parties, that being Property A. The wife will need an opportunity to respond to the husband’s case in that regard, and the s.79A application is an additional matter that will need to be properly pleaded and put before Court.

8. I am mindful of the prejudice to the wife with respect to further payments not being made to her in circumstances where final orders were made well over a year ago, and it has been necessary to bring the matter back and to also seek the Registrar to sign documents on the husband’s behalf because of his refusal to comply with the orders.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 1 May 2019