Kerrigan and Nott (No.2)

[2017] FCCA 2147

FEDERAL CIRCUIT COURT OF AUSTRALIA

KERRIGAN & NOTT (No.2) [2017] FCCA 2147

Catchwords:
FAMILY LAW – Property application – final orders made – non-compliance with orders for sale of former family home – warrant of possession – costs.

Legislation:

Family Law Act 1975, s.117

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561

Applicant: MR KERRIGAN

Respondent: MS NOTT

File Number: MLC 11378 of 2016

Judgment of: Judge Riley

Hearing date: 28 August 2017

Date of Last Submission: 28 August 2017

Delivered at: Melbourne

Delivered on: 28 August 2017

REPRESENTATION

Counsel for the Applicant: Ms Goldsworthy

Solicitors for the Applicant: Forster & Associates Lawyers

Advocate for the Respondent: In person

Solicitors for the Respondent: None

ORDERS

1. A warrant of possession issue directing Victoria Police or other enforcement officer, within seven days of this order, to evict the respondent wife, Ms Nott, from the property situate at Property A, in the State of Victoria (“former matrimonial home”), with or without force.

2. The enforcement officer appointed pursuant to the aforementioned warrant is directed to remove the wife without further reference to her.

3. The husband have the sole power to effect the sale of the former matrimonial home.

4. Order 9(f) of the orders made on 12 April 2017 remain in full force and effect.

5. The wife pay the husband’s costs of the enforcement application filed on 2 August 2017, fixed in the sum of $4,595.75.

6. The costs be paid from the wife’s share of the proceeds of settlement of the former matrimonial home.

NOTATION

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court. 

IT IS NOTED that publication of this judgment under the pseudonym Kerrigan & Nott (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 11378 of 2016

MR KERRIGAN

Applicant

And

MS NOTT

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. In this matter, there is an application before the court for a warrant of possession in respect of a particular property.  Orders were made by the court on 12 April 2017 providing, broadly, for the sale of the property with the proceeds to be divided 55% to the wife and 45% to the husband.  The wife has been in possession of the property since separation.  She has not co-operated with the orders requiring the sale of the property.  The husband has now filed an enforcement application seeking orders that there be a warrant of possession issued, essentially, evicting the wife.

2. It seems to me that it is entirely appropriate for a warrant of possession to issue.  The wife did not appeal against the final orders made on 12 April 2017.  There is no reason to consider that anything other than enforcement of those orders should be effected.

3. The wife told the court that she has nowhere else to live.  However, it seems likely that upon the sale of the property the wife would receive a sum of about $300,000 after discharge of the mortgage and payment of the expenses of sale and so on.  That sum would enable her to establish herself elsewhere.  In addition, the husband will be given the sole power to effect the sale of the property, as the wife is clearly not co-operating.

4. The husband has sought the costs of the enforcement application on an indemnity basis in the total amount of $4,595.75.  That figure is actually less than scale, by my calculation.  The scale would allow $1,801 for an interim hearing, $1,081 as the daily hearing fee and the disbursement for counsel’s fees of $2,200, making a total of $5,082.  I take it that what the applicant actually seeks is the actual amount incurred, which is $4,595.75.

5. It seems to me that, in accordance with Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561, it may be appropriate to make an order for costs in this case on an indemnity basis, given that the proceeding has been brought because of the wife’s failure to comply with court orders. As such, this case fits within a category identified by Shepherd J in Colgate-Palmolive as being appropriate for indemnity costs, being costs against a contemnor.

6. However, before making any costs order, the court must look at the matters specified in s.117 of the Family Law Act 1975 (“the Act”).  That provides that, unless the court considers that there are circumstances that justify it in ordering otherwise, each party in family law proceedings bears her or his own costs.

7. There are certain matters that s.117 of the Act requires the court to consider in determining whether to make a costs order. The first matter is the financial circumstances of each of the parties to the proceedings. In this particular case, there is a property that is to be sold. After the payment of various expenses and debts, the proceeds are likely to be in the order of about $600,000 or $700,000. The wife will get about 55% of that and the husband will get about 45%. In addition, the wife is in receipt of Centrelink benefits. The husband is working. He earns about $135,000 per year. He also has the care of the three children of the relationship.

8. The next matter is whether either party is in receipt of legal aid.  Neither is in receipt of legal aid.

9. The next matter is the conduct of the parties to the proceedings.  That links in with the following matter, which is whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court.  The enforcement application has been necessitated by the failure of the wife to comply with the orders of 12 April 2017.

10. The next matter is whether any party to the proceedings has been wholly unsuccessful.  The wife has been wholly unsuccessful in the enforcement application.

11. The next matter is whether either party to the proceedings has made an offer in writing to settle the proceedings.  The husband did make an offer to try and resolve the matter, but the wife did not co-operate with that either.

12. There are no other matters that I consider to be relevant.

13. Taking into account all of the circumstances of the case, I consider that it is appropriate to order the wife to pay the husband’s costs of the enforcement application fixed in the sum of $4,595.75.  However, that sum should not be paid until the settlement is finalised.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date:         5 September 2017