Melounis & Melounis (No 3) - [2023] FedCFamC1F 849

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Melounis & Melounis (No 3) [2023] FedCFamC1F 849

File number: SYC 7199 of 2019

Judgment of: HENDERSON J

Date of judgment: 27 September 2023

Catchwords: FAMILY LAW – ENFORCEMENT – Application by wife to be appointed trustee for sale of parties home in accordance with existing Court orders and for exclusive occupation of the home pending sale – orders made as sought by the wife – both parties agree the existing orders in respect of the distribution of proceeds of sale require variation.

Legislation:
Family Law Act 1975 (Cth) ss. 79, 79A, 114, 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.11.26

Division: Division 1 First Instance

Number of paragraphs: 47

Date of hearing: 26 September 2023

Place: Sydney

Solicitor Advocate for the Applicant: Mr Layson

Solicitor for the Applicant: Coleman Greig Lawyers

The Respondent: Litigant in person
ORDERS

SYC 7199 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MELOUNIS

Applicant

AND:
MR MELOUNIS

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

27 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The Wife shall forthwith be appointed as trustee for sale of the property situated at and known as F Street, Suburb D NSW (“the Suburb D property”) and the Suburb D property shall vest in the Wife.
2.For the purposes of order 1 above, the following shall apply:
2.1.The Husband shall vacate the Suburb D property within twenty-one (21) days of the date of these orders and for the purpose of this order:
2.1.1.The Husband shall be and is hereby restrained by way of injunction from removing any furniture items, chattels or fixtures from the Suburb D property except for:
2.1.1.1.Personal items belonging to the Husband (being clothing, toiletries, personal IT equipment (such as phones and laptop);
2.1.1.2.Personal items belonging to the children (being clothing, toys, books, toiletries, school items etc.).

2.1.2.The Husband shall make available to the Wife all keys providing access to the Suburb D property, including the garage remote by providing same to the Wife’s solicitors office via express post including providing the tracking number to the Wife’s solicitor;
2.1.3.Thereafter, the Wife shall have exclusive occupation of the Suburb D property to fulfill her role as trustee and pursuant to section 114 of the Family Law Act, the Husband shall be restrained by way of injunction from:
2.1.3.1.Attending at the Suburb D property without the express written consent of the Wife; and
2.1.3.2.Instructing or authorising any other person, including but not limited to Ms T and Mr G, from attending at the Suburb D property.

2.2.The Wife shall be at liberty to appoint the real estate agent to act on the sale (“the agent”);
2.3.The Wife shall be at liberty to appoint the conveyancer/solicitor to act on the sale (“the conveyancer”);
2.4.The Wife shall be at liberty to give such instructions as are necessary to the conveyancer to prepare a Contract of Sale for the Suburb D property and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Melounis & Melounis (No 3)

Details

AGLC: Melounis & Melounis (No 3) [2023] FedCFamC1F 849
Case: [2023] FedCFamC1F 849
Decision Date: 27 September 2023

CaseChat Overview and Summary

The case of Melounis & Melounis (No 3) involves a dispute between Ms Melounis and Mr Melounis regarding the enforcement of existing court orders pertaining to the sale of their shared family home. The matter was brought before the Federal Circuit and Family Court of Australia (Division 1) by Ms Melounis, who sought to be appointed as the trustee for the sale of the property and for exclusive occupation of the home pending its sale. This application followed previous orders from 14 May 2022, which mandated the sale of the property but had been obstructed by the husband’s non-cooperative conduct.

The legal issues before the court included whether Ms Melounis should be appointed as the trustee for the sale of the property and if she should be granted exclusive occupation of the home pending the sale. Additionally, the court needed to determine the appropriate measures to enforce compliance with the existing sale orders, given the husband's obstructive behaviour and the delay caused by Ms Melounis's application to vary the orders. The court had to balance the need for enforcing the existing orders with the necessity of facilitating a cooperative process for the sale of the property.

The court found that the existing orders should be enforced, and Ms Melounis should be appointed as the trustee for the sale of the property. The court noted the husband's obstructive conduct, including his failure to respond to the wife's efforts to comply with the sale orders and his imposition of inappropriate conditions for the sale. The court further determined that Ms Melounis should have exclusive occupation of the home to facilitate the sale process. The court restrained the husband from removing certain items and attending the property without consent, and it mandated the husband to vacate the property within 21 days. The court also detailed specific instructions for the sale process, including the appointment of real estate agents and conveyancers, the preparation of the property for sale, and the method and cost limits for marketing the property.

In conclusion, the court granted Ms Melounis’s application and issued orders appointing her as the trustee for the sale of the property, granting her exclusive occupation, and outlining the steps required to prepare and sell the property. The court also noted that the proceeds of the sale would be held pending any further orders regarding the distribution of those proceeds or an agreement between the parties.

Orders

Orders of the court

SYC 7199 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MELOUNIS

Applicant

AND:

MR MELOUNIS

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

27 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The Wife shall forthwith be appointed as trustee for sale of the property situated at and known as F Street, Suburb D NSW (“the Suburb D property”) and the Suburb D property shall vest in the Wife.

2. For the purposes of order 1 above, the following shall apply:

2.1. The Husband shall vacate the Suburb D property within twenty-one (21) days of the date of these orders and for the purpose of this order:

2.1.1. The Husband shall be and is hereby restrained by way of injunction from removing any furniture items, chattels or fixtures from the Suburb D property except for:

2.1.1.1. Personal items belonging to the Husband (being clothing, toiletries, personal IT equipment (such as phones and laptop);

2.1.1.2. Personal items belonging to the children (being clothing, toys, books, toiletries, school items etc.).

2.1.2. The Husband shall make available to the Wife all keys providing access to the Suburb D property, including the garage remote by providing same to the Wife’s solicitors office via express post including providing the tracking number to the Wife’s solicitor;

2.1.3. Thereafter, the Wife shall have exclusive occupation of the Suburb D property to fulfill her role as trustee and pursuant to section 114 of the Family Law Act, the Husband shall be restrained by way of injunction from:

2.1.3.1. Attending at the Suburb D property without the express written consent of the Wife; and

2.1.3.2. Instructing or authorising any other person, including but not limited to Ms T and Mr G, from attending at the Suburb D property.

2.2. The Wife shall be at liberty to appoint the real estate agent to act on the sale (“the agent”);

2.3. The Wife shall be at liberty to appoint the conveyancer/solicitor to act on the sale (“the conveyancer”);

2.4. The Wife shall be at liberty to give such instructions as are necessary to the conveyancer to prepare a Contract of Sale for the Suburb D property and for the purposes of this order:

2.4.1. The Wife shall instruct the conveyancer to include in the Contract the following as inclusions to be sold with the Suburb D property:

2.4.2. Staircase together with any incidental fixtures including but not limited to bolts, screws, rails, stairs, landing pad, landing rails and any other items removed and necessary to reinstall;

2.4.3. Second kitchen removed from the 2nd level of the Suburb D property including but not limited to the complete side of kitchen removed, cupboards, screws, hinges, granite benchtops, granite splashbacks, toe kicks, built in oven, microwave and stovetop.

2.4.4. Desk, hinges and screws for the desk previously affixed to the wall. (“the inclusions”)

2.4.5. The Wife shall instruct the conveyancer to prepare any special conditions required to effect this order;

2.4.6. The Husband shall make the inclusions available to the Wife within seven (7) days of the date of these orders by delivering the inclusions to the Suburb D property;

2.5. For the purposes of order 2.4 above, the Wife shall instruct the agent to disclose the inclusions referred to at order 2.4.1 above to potential purchasers including by showing photographs/videos of the Suburb D property in its previous condition;

2.6. Within seven (7) days of appointing the agent, the Wife shall instruct the agent to attend at the Suburb D property and compile a list of recommendations, having regard to the terms of these Orders, for the parties to achieve the best sale price possible and:

2.6.1. The Wife shall then implement those recommendations;

2.6.2. The maximum cost for the purposes of this order shall be $15,000;

2.6.3. If the cost to implement the entirety of the agent’s recommendations exceed $15,000, then the Wife shall attend to the works which the agent recommends are of greater priority;

2.6.4. The Husband shall be responsible for the costs at first instance (and shall pay any invoice directly to the service provider within seven (7) days of same being issued and provided to the Husband by the Wife and/or the agent) with the Wife’s half share to be deducted from her entitlement pursuant to orders.

2.7. In addition to any recommendations of the agent as per order 2.6 above, to prepare the Suburb D property for sale the Wife shall, at the Husband’s cost, do all acts and things necessary to:

2.7.1. Reinstall the staircase to gain easy access to the third-floor located at the Suburb D property – access of which was restricted by the Husband;

2.7.2. Widen the opening to the access point of the third-floor to its previous size and replaster - which was restricted by the Husband;

2.7.3. Reattach the passage door to bedroom 4 (as referred to in the valuation report of Mr BV dated 5 October 2022) which was removed by the Husband;

2.7.4. Reattach the door to the laundry which was removed by the Husband;

2.7.5. Reattach the door to the stairwell which was removed by the Husband;

2.7.6. Reattach the desk that was previously affixed to the wall;

2.7.7. Repair any further damage to the Suburb D property including damage to flooring.

2.8. For the purpose of order 2.7 above:

2.8.1. If the items referred to at order 2.7.3 to 2.7.6, or any other items removed by the Husband, do not remain in the Suburb D property, then the Husband shall return them prior to the date that he vacates pursuant to order 2.1;

2.8.2. The Wife shall provide the Husband with any applicable invoice within twenty-four (24) hours of receipt;

2.8.3. The Husband shall pay such invoice, directly to the service provider, within seven (7) days of receiving same from the Wife and shall confirm same with the Wife within (24) hours of payment being made;

2.8.4. The total costs shall not exceed $15,000;

2.8.5. In the event that the Husband defaults on his obligations pursuant to this order, the Wife shall be reimbursed those funds upon settlement.

2.9. The Wife, as trustee, shall co-operate in every way in relation to the marketing and sale of the Suburb D property, including, but not limited to:

2.9.1. Allowing inspection at all times reasonably requested by the agent;

2.9.2. Making the key readily available to the agent;

2.9.3. Ensuring that the Suburb D property is clean, neat and in good order at the time of any inspection or is being photographed for marketing purposes including by clearing any boxes and/or clutter and leaving the area in a clean, neat and good state.

2.10. The Wife shall otherwise:

2.10.1. Do all things necessary to facilitate a sale at the earliest possible time and shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the Suburb D property being effected; and

2.10.2. Determine the method of sale with regard to the recommendation of the agent;

2.10.3. Sell the property at fair market value with regard to the recommendations of the agent;

2.11. The Wife shall attend at the auction (if that is the method of sale) and negotiate with the highest bidder or bidders in the event of the reserve price not being reached;

2.12. Upon the Wife accepting a sale price for the Suburb D property, the Wife shall within seven (7) days execute the Contract of Sale and all other documents necessary to complete the sale, including all transfer documentation forthwith upon its submission to them by the agent or the conveyancer;

2.13. The Wife shall notify the Husband of the agent appointed, solicitor/conveyancer appointed, the sale price and provide a copy of the executed Contract of Sale within twenty-four (24) hours of executing same.

2.14. The Wife will provide a copy of the settlement sheet to the Husband upon settlement of the sale.

3. Upon settlement, the proceeds of sale, less any money the Wife has expended in preparing the property for sale, shall be placed in an interest bearing account in both parties names pending determination of the application to vary that part of the orders made 14 May 2022 dealing with the distributions of sale proceeds or by agreement of the parties.

4. All outstanding interim applications be dismissed.

AND THE COURT NOTES THAT:

A. In the event this matter proceeds to final hearing the Court may consider the requirement of an Order under section 102NA(1) of the Family Law Act 1975 (Cth).

B. In the event the Husband fails to vacate the house as ordered the Court will entertain any Enforcement Warrant for ejection.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The husband files a response to the interim application on 4 September 2023 with an affidavit. The parties engaged in a conference, however, there was no resolution, and the matter comes before me.Evidence Now, there is no doubt the wife’s application filed 28 June 2022 to set orders aside or have them varied under section 79A caused a substantial delay in progressing the sale, given the matter was ultimately transferred to this Court on 29 November 2022. However, the orders of 14 May 2022 remain extant and both parties agree the home should be sold. Yet, nothing has occurred in that regard. Even before the filing of the wife’s application the husband’s conduct as deposed to by the wife in her material was obstructive of carrying out the 14 May 2022 orders. They were that the home was to be placed on the market for sale within two weeks of those orders. Nothing like that occurred, despite the wife’s best efforts. The husband failed to respond to the wife’s lawyers’ letters of 31 May, 1 June 2022, concerning appointment of a conveyancer and a real estate agent in respect of proposals they put forward. On 16 June 2023, the husband put forward his own agents and conveyancers. The wife accepted the husband’s real estate agent and put forward her own conveyancers on 10 June 2023. The husband responded with a multitude of unnecessary, inappropriate conditions for the sale, such as: wife could not attend the property unsupervised, nor could her parents or family members attend any inspection; if he saw her family members or her at the home the inspection would be cancelled; that he would call the police if the wife attended the property, that neither he or the wife could speak to the real estate agent that were engaged by the parties, a non-sensical order. These matters simply were inappropriate for a real estate to have included in conditions for sale. Further they were unnecessary to affect a sale of the property, given the husband had sole occupation of the home. This is the parties’ home. They must be able to deal with the real estate agent. Certainly, they each must know what the other is saying. Such an order would make sale of the home untenable and still, the home is not sold and very little has been done. A nasty altercation occurred in front of the children in the home in early 2023 when the wife, again, was permitted to enter the home to see its condition and state. The parties clearly have an acrimonious, damaging for their children, relationship and appear unable to cooperate at any level even for their own best interests, let alone the best interests of their children and this was noted by his Honour at paragraph 393 of his judgment where he said:The parents have a poor interpersonal relationship, and this poor interpersonal relationship continues and is the basis of why this matter is before a Court for sale of a property - a matter a Court really cannot achieve. The parties have to sell the property, not the Court and they have not abided by the orders.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 7199 of 2019
Judgment of:	HENDERSON J
Date of judgment:	27 September 2023
Catchwords:	FAMILY LAW – ENFORCEMENT – Application by wife to be appointed trustee for sale of parties home in accordance with existing Court orders and for exclusive occupation of the home pending sale – orders made as sought by the wife – both parties agree the existing orders in respect of the distribution of proceeds of sale require variation.
Legislation:	Family Law Act 1975 (Cth) ss. 79, 79A, 114, 102NA Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r.11.26
Division:	Division 1 First Instance
Number of paragraphs:	47
Date of hearing:	26 September 2023
Place:	Sydney
Solicitor Advocate for the Applicant:	Mr Layson
Solicitor for the Applicant:	Coleman Greig Lawyers
The Respondent:	Litigant in person

SYC 7199 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MELOUNIS Applicant
AND:	MR MELOUNIS Respondent

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	27 SEPTEMBER 2023