Massalski & Riley (No 8)
[2023] FedCFamC1F 288
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Massalski & Riley (No 8) [2023] FedCFamC1F 288
File number(s): SYC 496 of 2015 Judgment of: HARPER J Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – ENFORCEMENT – Where an enforcement order was made and a receiver was appointed to the property of the wife – Order 11 made on 5 August 2022 for the wife to deliver to the receiver vacant possession of the property – Where receiver seeks orders that a warrant of possession be made requiring the wife to vacate the property and give vacant possession of the property to the receiver – Wife does not intend to comply with Court orders – Order that the warrant be made.
FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has filed a further specious Notice of a Constitutional Matter – Where wife sought leave for the proceedings to be adjourned – Leave refused – Wife wholly unsuccessful – Costs ordered on a party/party basis.
Legislation: Family Law Act 1975 (Cth) s 102QB
Judiciary Act 1903 (Cth)
Cases cited: Massalski & Riley [2019] FamCA 1013
Massalski & Riley (No 3) [2022] FedCFamC1F 562
Massalski & Riley (No 6) [2022] FedCFamC1F 1029
Pitman & Hynes [2021] FamCA 300
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 6 April 2023 Place: Sydney The Applicant: Litigant in person Solicitor for the First Respondent: Christopher Farah Solicitor Solicitor for the Second Respondent: Byrnes Legal ORDERS
SYC 496 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MASSALSKI
Applicant
AND: MR AG
First Respondent
MR RILEY
Second Respondent
order made by:
HARPER J
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS THAT:
1.The Applicant Wife’s (wife’s) application for adjournment is dismissed.
2.Within 14 days of this order, the wife must wholly comply with Order 11 made by this Court on 5 August 2022 which provided that the wife is to deliver up to the First Respondent (“receiver”) vacant possession of Unit 1, F Street, Suburb G NSW being the whole of the land more particularly described in folio identifier …(“Property”), including all fixtures and fittings currently upon that property in good order and repair and to deliver up to the receiver and/or make available for collection by the receiver all keys, remote control units, and other security devices for the Property in good order and repair.
3.Should the wife fail to comply with Order 2 the Sheriff, the Marshal of this Court, officers of the Australian Federal Police and officers of the New South Wales State Police are hereby directed for the purpose of giving effect to Order 2 forthwith, with such assistance as they may require, and if necessary, by force, to enter the Property and cause the Applicant, Ms Massalski and any other persons present, to immediately vacate the Property, and for so doing, these orders be your sufficient authority.
4.A registrar of this Court can, and is directed to, sign the General Power of the Attorney on behalf of Ms Massalski pursuant to s 106A of the Family Law Act (1975) (Cth), being the General Power of Attorney located at page 20 to 25 of the Affidavit of the receiver sworn on 23 November 2022.
5.These orders remain in force until further order of this Court, or until such time as the Property is sold by the receiver, whichever occurs first. .
6.The wife is directed to vacate the Property together with all her possessions and belongings within 14 days of the date of this order, and must not occupy, access, approach or otherwise come into contact with the Property after that date.
7.The Second Respondent Husband’s costs of and incidental to the Application in a Proceeding filed on 22 November 2022 and determined on 9 December 2022 and the Mention on 6 April 2023, be paid by the wife on a party/party basis, as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Massalski & Riley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These proceedings have a long and tortured history in this Court. Numerous judgments have been delivered which cover the history of the matter in considerable detail. It is unnecessary, therefore, to repeat what has already been set out in earlier judgments, except as follows.
In particular, I note that on 10 December 2019 McClelland DCJ delivered final orders in property proceedings between the Applicant Wife (“wife”) and the Second Respondent Husband (“husband”); Massalski & Riley [2019] FamCA 1013.
I note also that on 5 August 2022 I made orders pursuant to s 102QB(2)(a) of the Family Law Act 1975 (Cth) (“the Act”), in substance, declaring the wife a vexatious litigant; Massalski & Riley (No 3) [2022] FedCFamC1F 562.
Other orders have been made appointing a receiver to the property of the wife for the purpose of enforcing compliance with orders of the Court for payment of money.
On 9 December 2022, I delivered judgment, Massalski & Riley (No 6) [2022] FedCFamC1F 1029 (“Massalski & Riley (No 6)”), in respect of a Notice of a Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth) issued by the wife. I set out at [16] parts of my decision in Pitman & Hynes [2021] FamCA 300 where I dealt with the authorities relating to s 78B notices in particular, those that hold that a Notice of a Constitutional Matter only operates when the circumstances it postulates are made to appear arguable to the Court. I said in Massalski & Riley (No 6):
17. It was plain on the face of the copy of the Notice of a Constitutional Matter which was provided to me by the wife that she simply sought to reagitate a range of issues, which have been the subject of determination against her by this Court, and the subject of adverse comment in the Full Court. As I said in Massalski (No 3), it is quite plain, and one of the bases for declaring the wife a vexatious litigant, that she simply refuses to acknowledge decisions which go against her and is completely unmoved by the well-established principle of finality that must apply in litigation.
I held that I was not satisfied that the Notice of a Constitutional Matter raised any live constitutional question in these proceedings; Massalski & Riley (No 6) at [17].
Since then, there has been application by the First Respondent, the receiver appointed to the property of the wife (“receiver”), for orders in the nature of further enforcement, including orders seeking that the sheriff, the Marshal of this court and officers of the Australian Federal Police be directed to effect for the purpose of giving effect to earlier orders of the Court, and an order for the wife to give, vacant possession of Unit 1, F Street, Suburb G with such assistance as they may require and, if necessary, by force to enter the property.
The receiver applied to have his application for these orders heard, and the matter was listed before me on 6 April 2023.
On 9 March 2023, the wife signed a further Notice of Constitutional Matter. She provided to my chambers a copy of the affidavit of service of the notice, which did not actually annex the notice, and sought by way of email dated 3 April 2023 that the proceedings be adjourned until the Attorney Generals of the Commonwealth and the States and Territories of the Commonwealth had given their response.
When the matter was before me on 6 April 2023, the wife repeated her application for adjournment of the proceedings.
The solicitor for the husband filed an affidavit on 5 April 2023, which annexed copies of both the earlier Notice of a Constitutional Matter being dated 5 September 2022 (“First Notice”), which I had already held raised no constitutional matter, together with a copy of the further Notice of a Constitutional Matter dated 9 March 2023 (“Second Notice”). He submitted that those two notices were in almost identical terms. When this was put to the wife, she initially contended that there were substantial differences, however, when asked to identify what those differences were, she pointed only to paragraphs 37 to 40 of the Second Notice. In other respects, the Second Notice is identical to the First Notice which I have already held raised no constitutional matter.
In my view, for the reasons already given in Massalski & Riley (No 6) at [17]–[18], and by reference to the authorities discussed in Pitman & Hynes at [20]–[23], I am not persuaded that the Second Notice raises any fresh matter, which could constitute a constitutional matter. I am not satisfied any basis has been put forward by the wife to adjourn the proceedings by reason of the existence of the Second Notice.
The receiver then pressed for the orders he sought in his case outline filed 6 February 2023. In support of that application, he relied upon three affidavits filed 24 November 2022, 3 February 2023, and he referred to a later affidavit of 24 February 2023, which was not before me, however, I am satisfied on the basis of the email exchange, annexed to the affidavit of the husband’s solicitor filed on 5 April 2023, passing between him and the wife on 29 March 2023 that the wife’s position is that she has no intention of complying with the orders of the Court and continues to rehash matters which have been the subject of earlier submissions and evidence ad nauseam.
The wife confirmed orally to me that she did not propose to comply with the orders of the Court because she is at retirement age, and it would be, apparently, unconstitutional for her to be thrown onto the street. She seems to be unable to grapple with the fact she is also bankrupt by reason of the sequestration orders made in the lower court, Division 2 of the Federal Circuit and Family Court of Australia on 9 December 2022, and I note here that her trustee in bankruptcy did not seek to be heard in relation to this application.
It can only be said that this is an extremely unhappy and almost tragic situation where the wife, through an obdurate refusal to recognise the extremely serious position in which she finds herself, continues to repeat matters which have been determined against her on at least six or seven occasions, and I note here that includes a decision in the Supreme Court of New South Wales.
I put squarely to the wife in oral submissions that it was my role to ensure the integrity of the Court’s processes and its orders, a proposition which she claimed to understand. However, she followed this by claiming that the Court’s processes and its orders, or their integrity, had been undermined by dishonest conduct by the husband’s solicitor and conduct of the receiver who she claimed was covering for the husband’s solicitor. These fanciful allegations are not substantiated by anything the wife has put before the Court and have been made many times before, and I am satisfied they are entirely baseless.
Accordingly, the position must be that the orders sought by the receiver will have to be made in order for the integrity of the Court’s processes and orders to be vindicated. Accordingly, I make orders as sought by the receiver in paragraphs 3 to 7 of his case outline filed on 6 February 2023.
The husband made an application for his costs of the application determined on 9 December 2022, noting Order 6 on that date reserved the costs, and made a further application for the costs of this application.
In my view, the wife’s application for adjournment based upon the Second Notice was without foundation and came close to constituting an abuse of process in light of the decision already given in respect of the First Notice dated 5 September 2022. She has been wholly unsuccessful, and while I take account of the fact that she is currently bankrupt, in my view, it is appropriate to make an order for the husband’s costs to be paid as agreed or assessed on a party/party basis, and I make that order.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 6 April 2023. Associate:
Dated: 19 April 2023
4
0