LOGAN & HAMILTON

[2016] FamCA 508

FAMILY COURT OF AUSTRALIA

LOGAN & HAMILTON [2016] FamCA 508

FAMILY LAW – PROPERTY SETTLEMENT – ENFORCEMENT OF ORDERS – where applicant husband seeks the enforcement of final property settlement orders made by consent in February 2015 – final consent orders provided for the wife to retain the property upon payment of a sum of money to the husband – default provision in the final consent orders was for the property to be sold – where wife has failed to comply with the final consent orders – where husband seeks an order that the wife vacate the property and that the property be transferred into the husband’s sole name for the purpose of sale – where wife attended court but failed to file any responding material to the husband’s application – order made for the wife to vacate the property within four weeks – remainder of husband’s application adjourned to a date to be fixed pending the outcome of the wife’s compliance or non-compliance with these orders and the default provisions in the final consent orders made in February 2015.

Family Law Act 1975 (Cth), ss 105, 106A
Family Law Rules 2004 (Cth), r 20.07

APPLICANT: Mr Logan

RESPONDENT: Ms Hamilton

FILE NUMBER: MLC 3521 of 2011

DATE DELIVERED: 6 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 18 April 2016 & 6 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Brenton

SOLICITOR FOR THE APPLICANT: G A Black & Co

THE RESPONDENT: No appearance

Orders made 6 June 2016

IT IS ORDERED THAT

1. The Respondent, Ms Hamilton, vacate the real property situate at and known as D Street, Suburb F in the State of Victoria (“the real property”) on or before 4 July 2016.

2. The remainder of the Applicant’s Further Amended Initiating Application filed 27 April 2016 and the Amended Application in a Case filed 27 April 2016 be adjourned to a date and time to be fixed.

3. There be liberty to apply to the Applicant to have the matter relisted on short notice before the Honourable Justice Thornton.

4. The Applicant’s costs of today be reserved.

THE COURT NOTES THAT

A.Shortly prior to the Respondent leaving Court during today’s proceedings, the Respondent indicated to the Court that she was prepared to vacate the property in one month’s time.

B.Counsel for the Applicant advised the Court that the Applicant’s application for indemnity costs is not pressed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Logan & Hamilton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3521  of 2011

Mr Logan

Applicant

And

Ms Hamilton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The applicant husband brings an application to enforce final property settlement orders made by consent between the parties on 23 February 2015.  The respondent wife has been served with the documents relied upon by the applicant and acknowledged service.  The respondent has not filed any material in response to the application but attended court without legal representation.

2. The applicant husband was represented by counsel but was not present at court because he anticipated that there would be no response to his application.  He was available by telephone to provide instructions.

3. The final property orders made by consent provided amongst other things that the respondent pay to the applicant the sum of $32,500 on or before 25 May 2015.  Contemporaneously with the payment the husband was to sign all documents as required to transfer his right, title and interest in the property at D Street, Suburb F (“the Suburb F property”) to the respondent wife.

4. The final orders provided a default provision that, in the event that the payment had not been made, the Suburb F property be sold and upon completion of the sale, the proceeds of sale be applied as follows:

   ·    Firstly, to pay all costs, commissions and expenses of sale;

   ·    Secondly, to discharge the mortgage and any other encumbrances affecting the Suburb F property;

   · Thirdly, so much of the payment as is then outstanding together with interest thereon at the rate set out in the Family Law Rules 2004 (Cth) penalty interest rate per annum, adjusted monthly from the date to the husband;

   ·    Fourthly, the balance to the wife.

5. Paragraph 4 of the final orders provided for the respondent wife to have the sole right to occupy the Suburb F property pending the payment or completion of sale.

6. Liberty was reserved to either party to apply with respect to the terms and conditions of and execution of the sale.

Procedural Background

1. On 16 February 2016, the husband’s Initiating Application filed 23 October 2015 came before Registrar Sikiotis and was adjourned to 2 March 2016 for a procedural hearing and for the matter to be listed on an undefended basis.  The husband’s solicitors were ordered to notify the wife in writing of the listing within seven days.  The applicant was ordered to file and serve an Amended Initiating Application to include an Application in a Case seeking similar orders to the Initiating Application and any relevant affidavit by his solicitors confirming service of all Court documents upon the wife by 26 February 2016. The husband’s costs of that day were reserved to the hearing on 2 March 2016.

2. At the procedural hearing before me on 2 March 2016 the husband had not complied with the orders made by the Registrar and further procedural orders were made requiring the husband to file and serve an Amended Initiating Application, an affidavit in support and an affidavit of service for the next hearing on 18 April 2016.

3. The husband subsequently complied with those orders and also filed an acknowledgement of service signed by the wife. 

4. The respondent wife did not file any material in response to the application but appeared without legal representation on the return date of 6 June 2016.

Documents relied upon by the husband

1. The husband relied upon the following documents:

   ·    Further Amended Initiating Application filed 27 April 2016;

   ·    Final consent orders made 23 February 2015;

   ·    Amended Application in a Case filed 27 April 2016;

   ·    Affidavits of the solicitors for the husband filed 26 February and 15 March 2016;

   ·    Affidavit of the husband filed 15 March 2016;

   ·    Affidavits of service filed 12 May 2016;

   ·    Acknowledgement of service filed 12 May 2016.

The power to enforce orders

1. Section 105 of the Family Law Act 1975 (Cth) (“the Act”) deals with enforcements of its orders and provides for a discretion. It is necessary for the Court to explain why existing orders ought not be executed or, in this case, why different orders should be made in relation to the occupancy of the Suburb F property pending sale. Section 105 leaves the mechanics of the enforcement of its orders to the rules of the Court.

2. Chapter 20 of the Family Law Rules 2004 (Cth) (“the Rules”) sets out the process for enforcing obligations in financial cases. Rule 20.07 outlines the various orders that a court may make which include orders in aid of the enforcement of an obligation, staying the enforcement of an obligation and varying, suspending or discharging an enforcement order.

3. Equity requires the contemplation of the impact of the enforcement. It is appropriate for the Court to consider whether or not the enforcement of the order does or does not achieve what the Court originally intended. It is also appropriate to consider the consequences that might follow having regard to the outcome that the Court contemplated when orders under section 79 of the Act were made. In this case, the final property orders were made by consent and the parties intended that the respondent wife pay the husband the amount of $32,500 on or before 25 May 2015. The default provisions contemplated the sale of the property and the respondent having the sole occupancy of the property pending the sale.

The standard and onus of proof

1. The standard of proof which applies is the balance of probabilities and the onus is upon the applicant who seeks to enforce the orders.

Orders sought by the applicant

1. The applicant husband seeks the following orders:

   (a)That the respondent wife vacate the real property situate and known as D Street, Suburb F, in the State of Victoria on or before, what has now been put to me as, 4 July 2016;

   (b)That the Marshall and all officers of the Australian Federal Police and of the Police Force of Victoria for the purpose of giving effect to the Order of this Court, require the respondent wife to vacate the Suburb F property and that they 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 Volume … Folio … and cause the respondent wife to vacate the property and vacant possession of the land to be given to the applicant husband;

   (c)That pursuant to section 106A of the Family Law Act, a Registrar or Deputy Registrar sign on behalf of the respondent wife a Transfer of Land of the real property at Suburb F to the sole name of the applicant husband;

   (d)That pursuant to section 106A of the Family Law Act, a Registrar or Deputy Registrar sign on behalf of the respondent wife a Commonwealth Bank of Australia Mortgage Discharge Authority pertaining to the mortgage on the Suburb F property;

   (e)That the applicant husband do all such things as directed by the Selling Agent to adequately present the real property for sale, including but not limited to clearing of rubbish and debris, painting and general maintenance and repairs;

   (f)That the respondent wife pay the applicant husband’s costs of and incidental to this application on an indemnity basis (however, this order was not being pressed on an indemnity basis);

   (g)That upon settlement of the sale of the real property, being the Suburb F property, the proceeds of sale be disbursed as follows:

   (i)to pay the costs, commissions and expenses of the sale;

   (ii)to discharge the mortgage and any other encumbrances affecting the real property;

   (iii)in payment of the applicant’s costs of and incidental to this application and the Initiating Application filed on 23 October 2015 in relation to this matter and costs reserved to the applicant on 16 February 2016, on an indemnity basis;

   (iv)in payment or reimbursement of all costs and expenses incurred in readying the real property for sale as directed by the appointed Selling Agent;

   (v)the balance then remaining be divided as follows:

   1.as to $32,500 to the applicant;

   2.in payment of interest, calculated in accordance with the Rules, from 25 May 2015 until the date of settlement, to the applicant;

   3.in payment of the applicant’s costs;

   4.as to the balance, to the respondent;

   (h)That the matter be heard on an undefended basis in the event of non-appearance by the respondent.

The evidence

1. The applicant’ solicitors have been in correspondence with the respondent’s solicitors with a view to the wife refinancing and paying the amount owed to the husband pursuant to the final orders since March 2015.  Negotiations have been unsuccessful and I am satisfied that the applicant has afforded the respondent a reasonable opportunity to comply with the orders.  I am also satisfied that the respondent has had an opportunity to obtain legal advice about her compliance with the final property orders because she has had the benefit of two firms of solicitors acting on her behalf during those negotiations.

The respondent wife

1. The respondent attended court and advised that she had been unable to access legal representation from at least two community legal services because of a “conflict of interest”, which she could not explain.

2. She informed the Court that she had been unable to work for eight weeks due to major surgery and a car accident.  She indicated that she is currently “looking for work” and now has a car to assist her to find work.  She proposed obtaining a loan to comply with the final orders when she obtains employment.

3. The respondent informed me that the value of the Suburb F property is about $295,000 and that there is about $93,000 owing on the mortgage.  None of this is evidence before the Court, and all of that information was provided from the body of the Court.

4. The respondent did not avail herself of the opportunity to consult the duty lawyer and did not propose to file any documents in response to the application.  The respondent also informed the Court that she had a number of animals to house and that she needed time to find alternative accommodation.

5. After the matter was stood down so that counsel for the applicant could seek instructions, the respondent informed the Court that she would be in a position to vacate the Suburb F property in about one month.  She then proposed that the balance of any sale proceeds of the Suburb F property be provided to her daughter.  The respondent was advised that the only application before the Court was an enforcement application of the final orders made 23 February 2015.

6. After an explanation about the extent of the orders sought by the applicant, the respondent became upset and left the Court indicating that she did not propose to return.  The matter was stood down until 2:15 pm for enquiries to be made as to whether the respondent sought to be heard on any other issue.  I was informed at 2:15 pm that the respondent had left the Court before the luncheon adjournment.

Conclusion

1. On the basis of the affidavit evidence of the applicant, which I emphasise is the only evidence before the Court because there is no evidence before the Court from the respondent, and the proposal of the respondent, I am satisfied that it is appropriate to make the order sought by the applicant for the respondent to vacate the Suburb F property so that the final property orders can be enforced.

2. I am not satisfied that there is evidence that it is necessary to make the other orders sought by the applicant relating to the removal of the respondent from that Suburb F property, and the transfer of that property into the name of the applicant.

3. If the respondent fails to comply with the order to vacate the property or fails to comply with the default provisions of the final property orders made 23 February 2015, then the applicant has liberty to apply before me to proceed with the balance of his application on the filing and service of an updated affidavit as to the reasons why any further orders should be made.

4. I note that the applicant does not press the application for indemnity costs and I will reserve the other costs.

5. Accordingly, I propose to adjourn the balance of the application to a date to be fixed, with liberty to apply in the event that further orders are necessary to enforce the final property orders.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 6 June 2016.

Associate: 

Date:  23 June 2016