Marsh and Marsh (No 2)

[2014] FamCA 1223

FAMILY COURT OF AUSTRALIA

MARSH & MARSH (NO 2) [2014] FamCA 1223

FAMILY LAW – PROPERTY – Where the wife has failed to comply with orders requiring her to cooperate with the sale of the matrimonial home – Where the wife has failed to sign documents to enable the sale of the home – Where the husband owes a debt to the ATO that is accruing significant interest – Where the husband seeks orders that the wife remove property from the property – Where the husband seeks orders that the wife not be permitted to re-enter the property.

Family Law Act 1975 (Cth) s 79

Family Law Rules 2004 (Cth) r 19.37, r 20.54

APPLICANT: Mr Marsh

RESPONDENT: Ms Marsh

FILE NUMBER: SYC 3464 of 2009

DATE DELIVERED: 24 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 24 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT:	Champion Legal Pty Ltd
SOLICITOR FOR THE RESPONDENT:	In Person by Telephone

Orders

1. That I make orders in accordance with paragraphs 1-10 inclusive of the document initialled by me and dated today, set out herein:

   1.That Order 9 of the Orders of 28 August 2009, granting Ms Marsh exclusive occupation of the property Z Street, Suburb C, be vacated.

   2.That Ms Marsh vacate the property at Z Street, Suburb C.

   3.For the purpose of Order 2 hereof and should this order be made in the absence of Ms Marsh then Ms Marsh be served with a copy of these Orders by emailing the documents to her at her email address: … and by prepaid post to her at her residential address OV Street, FW Town NSW ….

   4.Pursuant to Rule 20.54 a warrant issue to the Australian Federal Police to be assisted by the New South Wales Police to remove Ms Marsh from the property Z Street, Suburb C, being all that land contained in Certificate of Title Folio Identifier: … and to place the property in the possession of Mr Marsh, such warrant to lay in the Registry for a period of seven (7) days after service of these Orders upon Ms Marsh.

   5.That upon the execution of the warrant for possession by the Australian Federal Police and/or the New South Wales Police Ms Marsh is hereby restrained from entering upon the property Z Street, Suburb C, or to have anyone acting as her servant or agent/s to enter the said property on her behalf after the property is in the possession of Mr Marsh and that Ms Marsh thereafter be restrained from coming within 500 meters of the property Z Street, Suburb C.

   6.That Ms Marsh is hereby restrained from personally contacting any prospective purchaser of the property, or causing any other person to contact any prospective purchaser on her behalf either directly or indirectly or by any form of written communication including digital communication.

   7.That Ms Marsh is hereby restrained from publishing in any medium, including publishing on the internet, any written material, photographs or otherwise depicting or describing the property Z Street, Suburb C, or any aspect of the property or any personal view held by her of the property, its construction and or current state of repair, or publishing any information intended to affect the market value of the property or its saleability.

   8.Within seven (7) days of Mr Marsh being placed in possession of Z Street, Suburb C, he do all acts and things to cause a removalist of his choice to remove all the items including furniture, furnishings, household items and personal items of Ms Marsh contained in the property and deposit such items removed into storage with a storage facility within 10 kilometres of the Suburb C property and to pay the storage fees for a period of three (3) calendar months.

   9.That the storage unit be secured with a combination lock and that Mr Marsh provide to Ms Marsh by email at her at email address: … and by prepaid post to her residential address OV Street, FW Town NSW … the combination of the lock of the storage unit.

   10.After the expiration of three (3) months Ms Marsh pay all and any storage fees and/or remove the items stored at her own expense.

1. That I direct counsel for the applicant to provide a short minute of order in relation to the Town 1 property on the assumption that a fire safety certificate is provided or, on the assumption that a fire safety certificate is not provided, by lunchtime on Friday 26 September 2014.

1. That I stand this matter over to 2.15 pm on Friday 26 September 2014 to deal with the costs issue. 

1. That upon the exchange of contracts for the sale of Z Street, Suburb C the interim Order 1 of 14 June 2013 for spousal maintenance is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsh & Marsh 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 SYDNEY

FILE NUMBER: SYC 3464 of 2009

Mr Marsh

Applicant

And

Ms Marsh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application in a case by the husband in these proceedings to give effect to orders that were made by me on 20 May 2014 which were final property orders made under section 79 of the Family Law Act1975 (Cth) (“the Act”). The orders provided that (inter alia):

   (2)That the husband shall do all acts and things and sign all such deeds, documents and instruments as are necessary to transfer to the wife all of his right, title and interest in the property situate at and known as [C Street, Town 1] (‘the [Town 1] property’) being all that land in Certificate of Title Folio Identifier 510/1118419.

2. There were two main properties held by the parties.  One was a unit at C Street, Town 1 (“Town 1 property”), in respect of which I ordered that the husband should do all acts and things and sign all such deeds, documents and instruments necessary to transfer that property to the wife.  The other property was Z Street, Suburb C (“Suburb C property”), and the parties were directed to do all acts and things and sign such documents as necessary as to sell that property and for the proceeds to be divided in a particular way.  Pending that sale, the wife was permitted to occupy the property provided she maintain the property to a neat, fit and proper state, made the property available at all times as requested by the agent and not do any act or thing designed or likely to affect the sale.

3. The wife was also to vacate the Suburb C property at least seven days prior to the settlement of the sale.  It is important to note that the Australian Taxation Office (“ATO”) is a significant creditor in the proceedings and will be entitled to a payment from the sale of the Suburb C property.  Interest on the ATO debt is currently accruing at an excess of $500 a day.

1. The evidence establishes that the registrar was obliged to sign the documents to enable the property to be marketed for sale because the wife failed to do so.  There is evidence from the real estate agent appointed to market the property that the wife has raised a list of what she described as defects which are an impediment to the sale.  The wife has told me on the telephone today that she has raised these issues because she feels that if they are not addressed prior to the sale of the property, she could be liable to a potential purchaser when they ultimately discover the defects.  Thus, she raised these difficulties and wishes to draw these difficulties to the attention of any purchasers.  In other words, she wants to give the defect list to them.

2. The evidence of Mr  TT also establishes that the wife has told him that he would only be able to show the property to potential purchasers at times suitable to the wife and that he would not be given a key.  It appears that the wife has vacated the property and now lives at a property at OV Street, FW Town.  Nonetheless, a number of her items remain in the property.  They are an obvious impediment to the sale.  Accordingly, the husband seeks orders that the orders in favour of the wife having exclusive possession of the Suburb C property be vacated and that orders be made entitling the husband to remove and store any property remaining in the property.  He also seeks, if necessary, that a warrant be issued to the Australian Federal Police to give effect to the orders. He also seeks an order that there be a restraint on the wife re-entering the property or contacting any prospective purchaser.

3. The evidence establishes that the wife was not cooperating with the sale, and that she was unlikely to do so in the absence of orders.  An order terminating her exclusive possession of the property would not seem to cause her any difficulty given that she seems to have found other accommodation in which she presently lives.  I am satisfied, therefore, that it is appropriate to make the orders sought in relation to the Suburb C property subject to two caveats.  The first is that although a warrant should be issued, I do not think it should be executed until seven days’ notice of the orders has been given to the wife. Secondly, the order that was sought in relation to the removal of the wife’s property requires that that property be stored at a commercial storage unit for three months, and that after three months, the wife pays such storage fees or must remove the goods at her expense, and that thereafter, if the wife fails to do so, the property shall be deemed to be abandoned.  I do not think that the court can properly make an order that deems the property to be abandoned, but otherwise, the order is an appropriate order to be made.

4. The next order sought is an order for costs.  On 13 June 2014, Loughnan J in contravention proceedings between the husband and wife, ordered the wife to pay the costs of those proceedings.  An itemised bill of costs was served on her on 1 July 2014.  No response has been received, and no assessment has been sought.  The husband now requests that the court assess the costs in accordance with rule 19.37 in the sum of $127 040.38 which is the amount of the itemised bill issued in those proceedings.  In the absence of any evidence that the rates charged are excessive or the work done was unnecessary, I propose to make that order.  I acknowledge that the wife has very vocally asserted that she should not be liable for these costs and that I infer that she considers the costs to be inflated, but there is no evidence to that effect.  It is important to bear in mind that they are costs in respect of contravention proceedings.

5. The husband also seeks an order that those costs be a charge over the proceeds of the sale of the Suburb C property and that those costs be paid to him prior to the distribution to the wife of that share, rather than the wife becoming bankrupt so as to have her properties at CC Town in New Zealand and Town 1 realised to meet the debt.  That is the only realistic way of that debt being paid.  It is the more appropriate course that it be paid from the proceeds of the Suburb C property, rather than to require the parties to engage in further proceedings in order to obtain payment.  I will make appropriate orders in respect of that.

6. The final set of orders relate to the Town 1 property.  The husband wishes to have access to that property so as to obtain the necessary permits for it to be transferred to the wife.  The property is presently held by the husband as sublease from Town 1 Pty Ltd.  Accordingly, a number of documents have been signed by the husband to give effect to the order for it to be transferred to the wife including a deed of assignment and a transfer of the lease.  The wife failed to sign those documents, but they have subsequently been signed by a registrar of this court pursuant to the orders that were made in May.

7. In order for the transfer to take place, the lessor, Town 1 Pty Ltd, requires there to be an annual fire statement.  To obtain such a certificate, the property must be inspected.  The wife has advised that the property has been inspected this week, and that she presently has the fire inspection certificate.  I propose to stand these proceedings over to 2.15 pm on Friday of this week, and if the fire certificate is provided to the husband or his lawyers by that time, it may be deemed that the further orders in relation to the Town 1 property are not needed.  If, however, that certificate is not provided, I am satisfied that the only way the transfer will be able to be effected is to make the orders sought in the application.  So as to make it perfectly clear, I am satisfied that the orders in relation to the Town 1 property should be made, but I will delay making them on the basis that the wife has informed the court that she will be providing a fire safety certificate to the husband or his lawyer before Friday, thus obviating the necessity for them.

8. I should also add that a large part of this judgment has been delivered with the wife being available on the telephone as far as I can be aware, but the volume was turned down to zero because the wife insisted on shouting and trying to drown out my voice whilst giving this judgment.  Accordingly, I propose to make the orders 1 to 10 varied as indicated in this judgment together with the additional orders for the payment of the costs as proposed by counsel for the applicant. I will direct him to present some short minutes of order to give effect to this judgment later today or first thing in the morning by email to my Associate with a copy to the wife. She is at liberty to make any submissions in writing as to the form of those orders she wishes.  I will also invite counsel for the applicant to provide a short minute of order in relation to the Town 1 property on the assumption that a fire safety certificate is provided, or on the assumption that a fire safety certificate is not provided by lunch time on Friday.

9. The intention of the orders that I made on 20 May 2014 was it was not to be a continuing maintenance order, but rather an interim order up until the sale of the Suburb C property.  So accordingly, it is proper to make an order that upon the sale of that property, that interim order cease, and I will do so.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 September 2014.

Associate: 

Date:  13 April 2015