Keats and Reeves (No. 2)

[2009] FamCA 559

FAMILY COURT OF AUSTRALIA

KEATS & REEVES (NO. 2) [2009] FamCA 559

FAMILY LAW – PROPERTY – Interim orders – exclusive occupation – injunctions – statutory trusts for sale – distribution of proceeds – writ of possession
FAMILY LAW – INJUNCTIONS – Proceedings instituted in the United Kingdom – proceedings instituted in the Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Mr Keats

RESPONDENT: Ms Reeves

FILE NUMBER: SYC 4789 of 2008

DATE DELIVERED: 22 May 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 22 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Somerville & Co Solicitors

COUNSEL FOR THE RESPONDENT: Self Represented

SOLICITOR FOR THE RESPONDENT: Self Represented

Orders

1. I make orders pursuant paragraphs 1 to 7 and 9 inclusive of the Application in a Case filed by the husband on 19 May 2009 and amended by me as set out hereunder:

   1.That the wife and the second respondent be forthwith restrained from doing any act or thing to encumber or dispose of the [S] vacant land (as defined in order 5)

   Exclusive Occupation of the [E] Home [at S]

   2.That within 14 days of the date of these orders the wife vacate the [E] home (as defined in order 5) and thereafter the husband have the sole use and occupation of the [E] home to the exclusion of the wife.

   3.The wife is hereby restrained from:

   a.Removing any of the contents of the [E] home, excluding her clothing and personal effects, without the husband’s written consent.

   b.Entering upon the [S] properties without the husband’s prior written permission, after the date 14 days from the date of the making of these orders.

   4.That the husband has responsibility for the engagement of all necessary persons, including tradesmen, to repair and prepare the [E] home for sale, initially at his expense, and the costs of that work shall be refunded to the husband from the proceeds of sale provided that they shall not exceed $100,000.

   Statutory Trusts for Sale of Property

   5.That pursuant to Section 66G of the Conveyancing Act 1919 the Court appoints [the husband] and Timothy Somerville to be the trustees (“the Trustees”) of the following properties:

   a.The whole of the land contained in Certificate of Title Folio Identifier […] (“the [S] vacant land”)

   b.The property known as “[E]”, […] Road, [S] being the whole of the land contained in Certificate of Title Folio Identifier […] (“the [E] home”)

   c.The whole of the land in Certificate of Title Folio Identifier […] (“the [N] property”)

   d.The whole of the land in Certificate of Title Folio Identifier […] (“the [Y] property”)

   (collectively referred to as “the properties”)

   and the properties shall be held by the Trustees on the statutory trust for sale.

   6.That as soon as reasonably possible the Trustees do all acts and things and sign all documents necessary to place the properties on the market for sale and sell same.

   Distribution of net sale proceeds

   7.That the Trustees do all acts and things, sign all documents and give all instructions and authorities necessary to cause the proceeds of sale to be distributed in the following order and priority:

   a.In payment to the National Australia Bank of any monies remaining owing in relation to the following loans:

   i.         National Australia Bank Account No, […]5

   ii.        National Australia Bank Account No, […]4

   iii.National Australia Bank Account No, […]3

   iv.       National Australia Bank Account No, […]1

   v.        National Australia Bank Account No, […]8

   vi.       National Australia Bank Account No, […]7

   vii.      National Australia Bank Account No, […]2

   b.Payment of the amount required to discharge the mortgages registered against the properties securing the wife’s loan in the sum of $1,500,000.00 from the National Australia Bank bearing account no. […].

   c.The balance to be retained by the husband’s solicitors pending final orders of this Court.

   …

   Procedural Order

   9.That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then a Registrar of the Court is appointed pursuant to Section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all things necessary to give validity and operation to the deed or instrument.

2. I mark as exhibit C, a document entitled Minute of Order and make orders pursuant to exhibit C as set out hereunder:

   Minute of Order

   1.That the Wife be and is hereby restrained from doing any act or thing to cause or permit any further step to be taken to prosecute and continue in any way the proceedings commenced by her in the Principal Registry of the High Court of Justice (Family Division) No. […] or any other proceeding in the United Kingdom, including but not limited to seeking, causing or permitting the entry of any decree (including any decree absolute of divorce) in such proceedings, pending further Order of the Family Court of Australia.

   2.That the Husband shall not seek to proceeding with his Application for Divorce filed in the Federal Magistrates Court on 14/5/09, pending further Order.

3. In the event of the husband seeking to move on an anti-suit injunction in relation to proceedings filed by the wife in the United Kingdom any such Application and supporting affidavit be filed and served within fourteen (14) days hereof.

4. The matter be listed for mention before docket Registrar Crawford on 10 July 2009 at 11.30am at the Sydney Registry of the Family Court of Australia.

5. Any Application and supporting affidavit issued in relation to the anti-suit injunction may be served on the wife by forwarding it to her by ordinary mail to PO Box ….

6. That a Writ of Possession issue addressed to the Marshal and all officers of the Australian Federal Police and of the Police Force of the State of New South Wales for the purpose of giving effect to the order of this Court made today 22 May 2009 requiring the wife in these proceedings Mrs Keats (otherwise known as Ms Reeves) to vacate the property situate at and known as “E” at S in the State of New South Wales are directed with such assistance as they may require and if necessary by force to enter upon the property being the land in Certificate of Title Folio Identifier … and cause Mrs Keats (otherwise known as Ms Reeves) to vacate the property and vacant possession of the land to be given to the husband in these proceedings Mr Keats. This order remains in force until further order of the Court.

7. The Writ of Possession issued pursuant to Order 6 hereof is to remain in the Sydney Registry of the Family Court of Australia to be activated by the Registrar upon receipt of evidence in affidavit form filed by the husband satisfying the Registrar that the wife has not vacated the premises known as “E” pursuant to the Orders made today.

8. I grant leave to the wife to make application to the Court to set aside or vary these Orders upon giving twenty-four (24) hours notice to the husband and the Court. Orders Style

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4789 of 2008

MR KEATS

Applicant

And

MS REEVES

Respondent

REASONS FOR JUDGMENT

1. Before the Court today is an Application in a Case filed 19 May 2009; a Minute of Order marked as Exhibit C in the proceedings; documents filed in Court and marked as Exhibit D forwarded to Ms Fiona Mary Hoad at Sommerville & Co on 20 May 2009 from the International Family Law Chambers; an affidavit sworn by Ms Hoad and filed in Court today attesting to service on the wife and on Mr Wilkes of a document filed on 19 May 2009, being the Application in a Case and an affidavit sworn by the husband on 19 May 2009; and a further Amended Initiating Application filed on 19 May 2009.

2. I have read those documents.  In addition, I have read the affidavit by the husband filed on 15 May 2009. 

3. Those that instruct Mr Kearney of counsel appearing for the husband advise that all of the property of the parties is contained within Australia. The evidence filed in the proceedings by the husband supports that information. 

4. The wife is present in Court today. She still has not filed one document in the proceedings before the Court, these proceedings having been commenced on 19 August 2008.  It appears that she has instructed lawyers in the United Kingdom to commence proceedings in that country for divorce, and also for ancillary relief, although the documents forming Exhibit D do not disclose, as far as I can see, the nature of the ancillary relief sought.

5. The wife claimed that she had not been properly served. She claimed that she had not read any of the documents which came into her possession, being documents filed on 19 May 2009 by the husband.  She claims irregularities with procedure and makes claims that the property of the parties is not contained entirely within Australia. The wife also makes other claims in relation to alleged non-disclosure by the husband which she says ought to be attended to prior to this Court making any final orders.

6. This Court is not making any final orders today, and as I have said in the face of all the allegations made by the wife, she persists in refusing to file any documents in the Court. She is refusing to participate in the proceedings in any meaningful manner.  The evidence relied upon by the husband supports the making of the orders sought by him as appropriate in the circumstances of this case, and accordingly I make orders as set out in the Application in a Case filed 19 May 2009 as amended by me, together with orders pursuant to Exhibit C.

7. In addition to those orders I will direct that in the event of the husband seeking to move on an anti-suit injunction in relation to the proceedings commenced by the wife and/or pursued by her in the United Kingdom, such application and supporting affidavit be filed and served within 14 days.  The temporary injunction made today should be considered again expeditiously.

8. In relation to the husband’s Application for Final Orders (which remains uncontested), that application should be adjourned to await the outcome of the sale of the properties identified in the orders of the Court.

9. The husband should be able to serve any application and supporting affidavit issued in relation to the anti-suit injunction on the wife by forwarding same by ordinary mail to her at her PO box.

10. Given the presentation of the wife in Court today and the evidence given on the 15 May 2009 I will issue a writ of possession addressed to the Federal Police and all members of the State Police to enter the premises known as E, at S in the State of New South Wales, and remove the wife in these proceedings, Mrs Keats (otherwise known as Reeves) and thereafter ensure that she does not re-enter those premises until or unless further order of the Court. 

11. I will order that the writ of possession lie in the Court to be activated by a Registrar of the Court upon receipt of evidence in the form of affidavit, and filed by or on behalf of the husband, satisfying the Registrar that the said wife has not vacated the premises as ordered by the Court today.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  30 June 2009