Medapati and Revanka

[2019] FamCA 884

FAMILY COURT OF AUSTRALIA

MEDAPATI & REVANKA [2019] FamCA 884

FAMILY LAW – PROPERTY – Where final judgment was delivered in this matter – Where the sale of one of the properties could not occur as per the Orders as they were previously worded – Where the Respondent to these proceedings was not heard at the hearing of the application due to his failure to purge his contempt of previous Court Orders – Where the Orders are varied to allow for the sale to be facilitated.

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

Hadkinson v Hadkinson [1952] 2 All ER 567
In the Marriage of Fahmi (1995) FLC 92-637
Malpass v Mayson (2000) FLC 93-061

APPLICANT: Ms Medapati

RESPONDENT: Mr Revanka

FILE NUMBER: BRC 2961 of 2016

DATE DELIVERED: 21 August 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 21 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Balzamo

SOLICITOR FOR THE APPLICANT: Hunter Solicitors

THE RESPONDENT: Self-represented
(by telephone)

Orders

1. That the Order made by his Honour Justice Forrest on 3 May 2019 be varied, by adding at the end of paragraph 7(b) the following:

   and, particularly in respect of the property situated in Victoria described in paragraph 6(d), the Certificate of Title of I Street, Suburb KK in the State of Victoria being the whole of the land in Certificate of Title Volume be transferred from the Husband Respondent Mr Revanka to the Applicant Wife Ms Medapati.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2961 of 2016

Ms Medapati

Applicant

And

Mr Revanka

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 3 May 2019, I made final Orders in parenting and property adjustment proceedings in this Court between the husband and the wife in this matter. I had heard the matter on 8 April 2019 with the wife represented that day by counsel and the husband failing to appear.

2. The husband has filed an appeal against those final property adjustment Orders. He did not apply for a stay of those Orders pending the determination of his appeal.

3. Amongst the Orders I made on 3 May 2019, was an Order that an apartment situated at I Street, Suburb KK be sold and that for the purposes of the sale the wife was appointed trustee for sale with the property vesting in her for that purpose. The Orders also provided for how any proceeds of sale were to be distributed by the wife as trustee. Any net proceeds of sale, after discharge of the mortgage encumbering the property, payment of any other outstanding outgoings in connection with that property and discharge of mortgage arrears pertaining to another property, are to be paid to the wife.

4. Today I hear an application by the wife for the making of a further order, described appropriately as a “machinery order”, that will facilitate the sale of the said Melbourne property by the wife in circumstances where the Registrar of Titles in the Land Titles Office, Victoria has advised that it cannot register the wife as the registered proprietor based on the current Court Orders. This is said to be because of the provision of s 37 of the Transfer of Land Act 1958 (Vic) which prohibits the Registrar from recording in the Register notice of any trust whether express, implied or constructive.

5. A Victorian solicitor, on affidavit, has provided the opinion that a Court Order in the terms now sought by the wife would suffice to allow registration.

6. To the extent that it may be necessary to rely on s 79A(1) of the Family Law Act 1975 (Cth) (“the Act”) to make this Order in circumstances where final Orders have already been made, I am satisfied that s 79A(1)(b) is the source of power. If, on application by a person affected by an Order made by the Court under s 79 of the Act, the Court is satisfied that circumstances have arisen since the Order was made that make it impracticable for the Order to be carried out or part of the Order to be carried out the Court may, in its discretion, vary the order or set the order aside and, if it considers it appropriate, make another order under s 79 in substitution for the order so set aside.

7. Given the position of the Victorian Registrar of Titles, made known, since the order was made by me, it is impracticable for the part of the order dealing with the sale of the Melbourne property to be carried out as it is currently worded. Accordingly, I intend to vary the order by adding at the end of paragraph 7(b) of the Orders of 3 May 2019 the following:

   and, particularly in respect of the property situated in Victoria described in paragraph 6(d), the Certificate of Title to I Street, Suburb KK in the State of Victoria being the whole of the land in Certificate of Title Volume be transferred from the Husband Respondent Mr Revanka to the Applicant Wife Ms Medapati.

8. Just before I make the Order, I turn to another matter. The husband appeared by telephone before me this morning having received leave from the Registrar yesterday to do so. I would not hear from him.

9. On 22 November 2018, I declared that the husband had acted in contempt of the Court in ways that involved a flagrant challenge to the authority of this Court when he contravened Orders I had previously made. When I declared that he had acted in contempt of the Court I ordered him to attend and personally appear before the Court on 12 December 2018 so that I could hear submissions as to the consequences that should be imposed upon him for the contempt. He did not appear on that date and, consequently, I issued a warrant for his arrest. He has not entered Australia since to the best of my knowledge and the warrant for his arrest remains outstanding. He has, to this date, to the best of my knowledge, not purged his contempt of this Court.

10. The husband opposed the wife’s application and wanted me to dismiss it. I am satisfied that there undoubtedly exists a discretion in this Court to refuse to entertain an application by a party who is in contempt of this Court. I refer particularly to the decisions, authoritative as they are, of the Full Court of this Court in In the Marriage of Fahmi (1995) FLC 92-637 and Malpass v Mayson (2000) FLC 93-061. Those Full Court decisions have been followed and applied by a number of judges, namely former Justice Warnick of this Court, and Federal Magistrate Jarrett of the Federal Magistrates Court, as his Honour then was, and they have also been followed and applied by me in a previous matter.

11. Those Full Court decisions particularly refer back to a very pertinent decision of the British Court of Appeal in the case of Hadkinson v Hadkinson [1952] 2 All ER 567. In his decision in that case, Lord Denning said at 574:

    It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.

12. I am satisfied that the husband’s contempt and failure to purge it by appearing in person before this Court impedes the course of justice. The excuse he repeatedly gives, that he would be prevented from leaving this country if he came here by an Order imposed because of substantial unpaid child support arrears, is not a reasonable excuse for his failure to appear.

13. That is why I did not hear him. I make the Order set out above.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 August 2019.

Associate:

Date:  26 November 2019