Molenaar & Molenaar (No 3)

[2021] FCCA 1329

FEDERAL CIRCUIT COURT OF AUSTRALIA

Molenaar & Molenaar (No 3) [2021] FCCA 1329

File number(s):

MLC 14377 of 2018

Judgment of:

JUDGE MCNAB

Date of judgment:

11 May 2021

Catchwords:

FAMILY LAW – application by wife for enforcement of final property orders made on 5 February 2021 for the husband to vacate the property which is the subject of the proceedings – application for a warrant of possession to be issued if the husband does not vacate the property – rule 25B.62 of the Federal Circuit Court Rules (Cth) – submission by the wife that rule 25B.62 requires that the that orders be made for the applicant to have possession of the property prior to the issuing of a warrant of possession – other party must have 7 days’ notice of order granting possession – orders made for the wife to have possession – application adjourned for the orders of possession to be served on the husband – costs.

Legislation:

Federal Circuit Court Act 1975 (Cth) s 106A

Federal Circuit Court Rules (Cth) r 25B.62

Cases cited:

Molenaar & Molenaar [2021] FCCA 390

Number of paragraphs:

8

Date of hearing:

11 May 2021

Place:

Melbourne

Counsel for the Applicant:

Ms V Sweet

Solicitor for the Applicant:

Ballarat Lawyers

The Respondent:

No Appearance

ORDERS

MLC 14377 of 2018

BETWEEN:

MS MOLENAAR

Applicant

AND:

MR MOLENAAR

Respondent

ORDER MADE BY:	JUDGE MCNAB
DATE OF ORDER:	11 MAY 2021

THE COURT ORDERS THAT:

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 under the pseudonym Molenaar & Molenaar (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)

Judge McNab:

INTRODUCTION

1. In this matter, final property orders were made on 5 February 2021. Those orders were made on the basis of reasons for Judgment that were delivered orally on the same day and were settled on 3 March 2021: see Molenaar & Molenaar [2021] FCCA 390. These reasons should be read in conjunction with those reasons.

2. The matter returns before the Court by way of an application in a case filed by the Applicant Wife on 29 April 2021. By that application, the Wife seeks the enforcement of orders 14, 15 16 and 20 of the final property orders. Those orders can be summarises as follows:

   (1)within 30 days of the date of the final orders, the Respondent Husband vacate the property at E Street, Town F (“the property”) and leave the property in clean and tidy condition, with the Husband to return all keys to the property to the Wife’s solicitor.

   (2)the Husband will leave various items – including personal items, furniture and whitegoods – at the property upon his vacating;

   (3)within 30 days of the date of the final orders, the parties do all things necessary and sign all such documents that are required of them to sell the property on the following terms:

   (a)the property be listed on a non-exclusive listing agreement for sale by private treaty at a price as determined by the Wife on advice from the real estate agent;

   (b)the form of Contract for Sale will be that approved by the Law Institute of Victoria with completion to take place within a period agreed between the parties and if there is no such agreement, then within not more than 60 days of the date of the contract;

   (c)the property will be listed for sale with a licensed real estate agent (“the agent”) as determined by the Wife;

   (d)in the event the property is not sold within 120 days of listing the property for private sale, the parties will forthwith do all things necessary and sign all such documents that are required to procure the sale of the real property by public auction on a date nominated by the agent at a reserve price determined by the agent;

   (e)in the event that the property was not sold by auction or by private negotiation within 14 days after the said auction, then the parties would do all things necessary and sign all such documents required to procure a second auction upon the same terms and conditions as applied to the first auction;

   (f)in the event that the property was not sold at or within 14 days of the second auction, either party had liberty to apply to the Court for further orders;

   (g)the Wife will co-operate in any way with the agent in relation to the sale, including making the key available, allowing inspection of the real property at times requested by the agent, and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers, and comply with any request of the agent to maintain the property as requested by the agent;

   (h)the Husband be restrained from returning to the property for any reason, including but not limited to attendance at open inspections, auctions and/or private inspections.

   (4)in the event that either party refuses to execute a Deed or instrument necessary to give effect to these orders the Registrar or Deputy Registrar of the Federal Circuit Court of Australia is appointed pursuant to s106A of the Federal Circuit Court Act 1975 (Cth) to execute all Deeds and documents in the name of the parties and do all acts and things necessary to give validity and operation to the Deed or instrument.

3. The Wife also relevantly seeks orders by her application that:

   (1)the Husband vacate the property within 14 days of the date of these orders, and if the Husband does not comply with such an order, that the Sheriff be authorised to attend and remove the Husband from the property;

   (2)upon the Husband vacating the property, the Wife be solely responsible for the sale of the property, as provided for in the final orders; and

   (3)the Husband pay the Wife’s costs of and incidental to this application.

   BACKGROUND

4. The Wife had Counsel appear on her behalf and there was no appearance by or on behalf of the Husband. At the commencement of the hearing, I noted that the Husband was given notice of the hearing by the Wife and by my Chambers, and I accepted that he was properly served with the Wife’s application, having regard to an affidavit of service filed on 4 May 2021. Counsel for the Wife also indicated that the Husband had sent correspondence to the Wife’s solicitors in respect of the application.

5. During the course of the hearing, in response to a question from the Bench as to whether a warrant of possession could be ordered at the hearing today, Counsel for the Wife submitted that it would not be appropriate to make an order issuing a warrant of possession today, pursuant to r25B.62 of the Federal Circuit Court Rules (Cth) (“the Rules”). Rule 25B.62 of the Rules states that:

   (1) An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days notice of the order to be enforced before the warrant is issued.

   (2) The Court may issue a warrant for possession authorising an enforcement officer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.

   (3) If a person other than the respondent occupies land under a lease or written tenancy agreement, a warrant for possession may be issued only if the Court gives permission.

6. Counsel for the Wife submitted, in effect, that the proper process for the granting of a warrant of possession is a two-step process involving, first, an order being made by the Court for the Applicant (in this case the Wife) to have possession of the property and, once an order has been made, returning before the Court to determine the granting of a warrant once the other party (in this case the Husband) has had at least 7 days’ notice of the order granting possession. Counsel for the Wife submitted that the Court should adopt a cautious approach and adhere to the process set out in r25B.62 of the Rules.

   CONSIDERATION

7. I accept the Wife’s submissions in respect of that issue, and on that basis, orders will be made for:

   (1)the Wife to be entitled to possession of the property for the purpose of completing the sale of the property in accordance with order 16 of the orders made on 5 February 2021;

   (2)the Husband to vacate the real property within 14 days;

   (3)the Wife to cause a sealed copy of this order to be emailed to the Husband and affixed to the front door of the property as soon as is practicable and in the event that it is not practicable to affix the order to the front door of the property the Order shall be placed in the mail box of the real property;

   (4)the matter to be adjourned to 4 June 2021;

   (5)the Wife to be at liberty to seek a warrant for possession of the property on the adjourned date without further notice to the Husband;

   (6)the Wife to cause to be filed prior to the adjourned date an affidavit setting out compliance with the orders in respect of the service of these orders; and

   (7)the Wife’s costs to be fixed in the sum of $610.00 and to be paid by the Husband from the Husband’s share of the proceeds of sale of the property, contemporaneously with the settlement of the sale of the real property.

8. The Court will make an order for costs on the basis that the quantum of costs sought by the Wife is reasonable, having regard to the fact that the Court made final property orders on 5 February 2021 that the Husband give vacant possession of the property to the Wife within 30 days. The hearing of this application is necessitated by the Husband’s failure to comply with the orders made on 5 February 2021. On that basis it is appropriate that the Husband pay the Wife’s costs of the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.

Associate:

Dated:       15 June 2021