Mille and Mille

[2009] FamCA 665

FAMILY COURT OF AUSTRALIA

MILLE & MILLE [2009] FamCA 665

FAMILY LAW – PROPERTY – Order for removal of caveat to enable sale of property

Family Law Act 1975 (Cth)

APPLICANT: Mr Mille

RESPONDENT: Ms Mille

FILE NUMBER: MLC 4045 of 2009

DATE DELIVERED: 20 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MR COOPER

SOLICITOR FOR THE APPLICANT: RANDLES COOPER & CO PTY LTD

THE RESPONDENT: IN PERSON

Orders

1. That the wife forthwith do all things necessary to execute the withdrawal of caveat lodged against the Certificate of Title to the property at W.

2. If by 11.00am on 21 July 2009, the wife has not signed the said withdrawal of caveat, the Registrar may sign the said withdrawal of caveat in the name of the wife.

3. That for the purposes of paragraph 3, the Registrar may be satisfied that the wife has not complied with paragraph 1 of these orders upon production of an affidavit by the solicitor for the husband confirming non-compliance with paragraph 1.

4. Upon the settlement of the sale of the said property, the proceeds be placed in an interest bearing account in the joint names of the parties under the control of and organised by the solicitor for the husband.

5. That all interim applications be otherwise dismissed.

6. That all outstanding applications be otherwise adjourned to a date to be fixed by the docketed registrar for fixing for final hearing before a judge for trial.

7. That the husband’s costs of these proceedings fixed in the sum of $1925 be reserved for the final determination.

IT IS NOTED that publication of this judgment under the pseudonym Mille & Mille is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4045 of 2009

MR MILLE

Applicant

And

MS MILLE

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Mille on 11 May, which has been amended by a further initiating application on 10 July.  The application on 10 July seeking final orders seeks that there be a fair and equitable adjustment of property interests between the parties, taking into account their respective contributions. No doubt, that will have to be rectified with some more precision. 

2. The more important issue is that the application sought interim orders of an urgent nature and, specifically, an application for orders under section 106A of the Family Law Act 1975 (Cth) (“the Act”), that a registrar be appointed to execute a withdrawal of caveat lodged by the wife, and in respect of a property at W. I am told – and there is no reason to doubt this – the settlement of the sale of that property was due to occur today, but because of the current listing process, the hearing could not be listed any earlier.

3. This matter has already been in the court system for some time.  After the documents were filed on 11 May, the matter was allocated a case assessment conference on 30 June.  On that date, it came before Registrar Riddiford, who noted that the wife appeared in person.  Although she has indicated to me this morning that she didn’t know anything about documents, there are two quite precise orders that the registrar made on that day.  The first was that the matter was adjourned to a registrar’s hearing on 6 August at 10 am for procedural orders, but because of the urgency associated with the amended application to which I have referred, that time has been abridged until today.

4. The second order, however, is quite specific.  It required the wife to file a response and a financial statement by 9 July.  It is quite clear that the wife had not done that, and, after some argument this morning, she ultimately was given the pro forma documents, and she has completed them.  I will return to those in a moment.  The registrar’s orders also required for the exchange of documents of a financial nature. There are a number of other orders that are not particularly relevant for today’s purposes. 

5. The application seeking the urgent interim orders is supported by an affidavit.  It sets out that the parties had a modestly short relationship, having married in 2006 and separated in 2009.  Attached to the initiating application is a copy of an undertaking to the Broadmeadows Court, which arose out of an intervention order. 

6. It seems that, on the basis of that undertaking, the wife left the property at W.  For reasons which are not entirely clear, the husband then sold the property, and that gives rise to the problem today. 

7. By way of background, Mr Cooper, on behalf of the husband, concedes that the wife had a unit in R at the time of the relationship, sold that, and the money went into the mortgage, as did some money from her superannuation.  What is being proposed by the husband is that, to give some security to the wife, the funds be placed in an interest-bearing account in the trust account of the solicitor.  I have given the wife a number of opportunities today to tell me why that should not happen, and her response is very simply that she does not trust the solicitors.  What she may not necessarily understand at this stage is that the solicitors are officers of the court and, therefore, bound by the orders of the court, and they are responsible to the Court for their conduct.

8. In asking the wife to complete documents, she filed the pro forma response to initiating applications.  There is little in the final orders that she seeks that is of any relevance.  In the interim orders that she seeks, she says in a narrative:

   I have an interest in the marital home because I had invested 100 per cent in such property, and he wanted to leave me destitute as at the present moment, and I don’t deserve this.  No one does.  He didn’t put my name in the title, even when I put my whole superannuation in, my $40,000 proceeds from the sale of my unit at [R], because he coerced me into selling it against my will.  He’s not any different to Skase or Alan Bond.  He’s a crook, a fraud, and he deserves nothing.

9. Whilst that might help the wife feel better, it certainly does little to assist me in the determination I have to make.  As I said, for reasons best known to himself, which are not entirely clear from the material, the husband has executed a sale contract, and that will create problems for both parties in the event that the settlement does not go through. 

10. Although the wife has some concerns about the fact that the husband may not be honest, the funds will be held in an interest-bearing account, and any argument she may have in relation to her entitlement can be carried out in the fullness of time by the court proceedings. 

11. The wife makes an allegation from the bar table, which is not contained in her affidavit material, that the property is being sold for less than its correct value, but that can also be resolved by a valuation and, if necessary, some add backs at the final hearing.  There is no basis for me to be concerned about this particular case, having regard to the fact that the asset is simply being replaced by another asset. 

12. There is no evidence before me to suggest that the property has not been sold for an appropriate value, and, having regard to the fact that the contract is due to settle today, there is every probability to say that the parties may suffer substantially if the orders are not made.  In those circumstances, it seems appropriate to make the order. 

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  29 July 2009