KEDIS & KEDIS (No.2)

[2014] FCCA 79

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEDIS & KEDIS (No.2) [2014] FCCA 79

Catchwords:
FAMILY LAW – Warrant of Possession – husband’s non-compliance with final property Orders of the Court – husband’s refusal to vacate premises – application of wife acceded to – Warrant of Possession to issue.

Applicant: MS KEDIS

Respondent: MR KEDIS

File Number: MLC 2787 of 2013

Judgment of: Judge Hartnett

Hearing date: 15 January 2014

Delivered at: Melbourne

Delivered on: 15 January 2014

REPRESENTATION

Counsel for the Applicant: Ms Teicher

Solicitors for the Applicant: Jeanne Gorman

Counsel for the Respondent: In Person

THE COURT ORDERS (IN RELATION TO THE WIFE’S APPLICATION FOR A WARRANT OF POSSESSION) THAT:

1. The husband vacate the property described in Certificate of Title Volume (omitted) Folio (omitted) and situate at Property H in the State of Victoria within 48 hours of this Order and the wife thereupon have vacant possession.

2. The husband vacate the property described in Certificate of Title Volume (omitted) Folio (omitted) and situate at Property U in the State of Victoria within 48 hours of this Order and the wife thereupon have vacant possession.

3. The warrant of possessions will lie in the office and shall be executed within seven days hereof unless the wife advises the Court in writing by 22 January 2014 that vacant possession of the property has been delivered.

4. The wife’s costs of and incidental to the proceedings shall be paid by the husband.

5. The wife has liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Kedis & Kedis (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 2787 of 2013

MS KEDIS

Applicant

And

MR KEDIS

Respondent

REASONS FOR JUDGMENT

1. The wife filed an Application in a Case on 10 January 2014.  She seeks in that Application the following orders:-

   “1. An order to enforce possession of the real property situated at Property H, being the whole of the land more particularly described in Certificate of Title Volume (omitted), Folio (omitted) (“the former matrimonial home”) by the issue of a warrant for possession of the said property and to thereafter deliver it to the Applicant, Ms Kedis, in accordance with order 11 of the Orders of this Honourable Court made 29 November 2013.

   2. An order to enforce possession of the real property situated Property U being the whole of the land more particularly described in Certificate of Title Volume (omitted), Folio (omitted) (“the investment property”) by the issue of a warrant for possession and to thereafter deliver possession of the property to the Applicant Ms Kedis in accordance with order 11 of the Orders of this Honourable Court made 29 November 2013.”

2. In support of that Application, the wife has filed an Affidavit sworn 9 January 2014.  She relies on the contents of that Affidavit.  The Respondent husband has filed no material in response, but he did enter the witness box this day and was given an opportunity to provide evidence to the Court in support of his opposition to the orders as sought by the wife. 

3. In evidence this day before the Court (and in particular) the husband swore that:-

   a)he continues to live in the former matrimonial home in breach of earlier Orders of the Court made 29 November 2013 (‘the final Orders’) and 10 May 2013 (‘the interim Orders’);

   b)he is working each day on the investment property situate at Property U in the State of Victoria (‘the investment property’).  This is again in breach of final Orders of the Court; 

   c)he has failed to deliver the keys to both properties to the Melbourne Registry of the Court as ordered in the final Orders.  His reasons for failing to comply with order 12 of those Orders is that he continues to attend to the fixing of the investment property and he continues to reside in the former matrimonial home situate at Property H in the State of Victoria (‘the former matrimonial home’). Thus, he uses and needs the keys.

4. The husband’s application for a stay of orders has been dismissed.  The husband, as referred to in the Reasons for Judgment of 29 November 2013 reported as Kedis & Kedis [2013] FCCA 1959 (‘the Reasons’), failed to comply with the interim Orders and has now failed to comply with some of the final Orders. I note his further evidence that he has, to the present time, failed to comply with orders 3 and 7 of the final parenting Orders made 29 November 2013. The wife was required to attend Court just prior to Christmas to obtain an order for a Registrar of this Court to sign necessary documents on behalf of the husband to attempt to effect a sale of the investment property. The husband has to the present time not provided to the wife any of the items of furniture and chattels as set out in order 20 of the final Orders.

5. The application of the wife shall be acceded to.  It is clearly necessary that a Warrant of Possession issue so that the Court’s Orders are properly enforced and the wife has the benefit of those Orders.  The husband had no intention last year and continues to have no intention to vacate the former matrimonial home or cease control over the investment property.  He will not do so unless a Warrant of Possession issues in respect of both real properties. As he submitted from the bar table, “I’m not moving nowhere”. There being no other remedy available to the Court, the Court shall make the necessary orders to give effect to the final Orders. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  5 February 2014