Molenaar & Molenaar (No 4)

[2021] FCCA 1330

FEDERAL CIRCUIT COURT OF AUSTRALIA

Molenaar & Molenaar (No 4) [2021] FCCA 1330

File number(s):

MLC 14377 of 2018

Judgment of:

JUDGE MCNAB

Date of judgment:

4 June 2021

Catchwords:

FAMILY LAW – warrant of possession – husband’s non-compliance with final property orders of the Court – warrant of possession issued – costs.   

Legislation:

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

Cases cited:

Molenaar & Molenaar [2021] FCCA 390

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

Number of paragraphs:

20

Date of hearing:

4 June 2021

Place:

Melbourne

Counsel for the Applicant:

Ms V Sweet

Solicitor for the Applicant:

Ballarat Lawyers

The Respondent:

Appearing in Person

ORDERS

MLC 14377 of 2018

BETWEEN:

MS MOLENAAR

Applicant

AND:

MR MOLENAAR

Respondent

ORDER MADE BY:	JUDGE MCNAB
DATE OF ORDER:	4 JUNE 2021

THE COURT ORDERS THAT:

1.Pursuant to Rule 25B.62 of the Federal Circuit Court Rules 2001 (Cth), a warrant for the possession of the property situate at and known as E Street, Town F in the state of Victoria more particularly described in the Certificate of Title Volume … Folio … (“E Street, Town F Property”) shall be issued authorising an enforcement officer to enter the E Street, Town F Property and give vacant possession to the Applicant and the enforcement officer shall for this purpose have the following powers:

(a)to enter and search the E Street, Town F Property with the use of force if necessary;

(b)to seize the E Street, Town F Property;

(c)to evict the Respondent from the E Street, Town F Property with the use of force if necessary, he being the person who is not legally entitled to be on the E Street, Town F Property pursuant to Orders made 5 February 2021;

(d)to take vacant possession of and secure against any interference of the E Street, Town F Property; and

(e)to deliver vacant possession of the E Street, Town F property to the Applicant to the exclusion of the Respondent and all others.

2.The Applicant Wife cause a sealed copy of this Order to be emailed to the Respondent Husband at … .

3.The Applicant Wife be at liberty to apply upon short notice to have the matter relisted in respect of the sale or implementation of these orders.

4.The Applicant Wife’s costs of this day fixed at $1,610.00 be paid by the Respondent Husband from the Respondent’s share of the proceeds of sale of the real property, contemporaneously with the settlement of the sale of the real property.

5.Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the applicant to employ an advocate.

AND THE COURT NOTES THAT:

A.The Applicant Wife requests the enforcement officer avoid attending the E Street, Town F Property whilst the children of the parties are spending Court ordered time with the Respondent husband on the following dates:

(a)4 to 6 June 2021;

(b)18 to 20 June 2021

(c)25 to 28 June 2021

(d)2 to 5 July 2021

(e)16 to 18 July 2021, and each alternate weekend Friday to Sunday thereafter.

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 4) 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. This is the second return of an application in a case filed by the Applicant Wife on 29 April 2021, where the Wife seeks the enforcement of final property orders that were made on 5 February 2021, and in particular orders which relate to the Respondent Husband vacating the property which is the subject of the final orders (for the purpose of selling the property). If the Husband does not vacate the property, the Wife seeks that a warrant of possession be issued, so that the Sheriff be authorised to evict the Husband from the property. The Wife also seeks that the Husband pay her costs of the application.

2. I note that the Husband has not filed any material in respect of the Wife’s application.

3. The matter first returned before the Court on 11 May 2021, and brief reasons were delivered orally in respect of the orders made on that day, in particular, the order for costs. Those reasons were distilled into written reasons that were published under the Media Neutral Citation ‘Molenaar & Molenaar (No 3) [2021] FCCA 1329’. These reasons should be read in conjunction with those reasons.

   BACKGROUND

4. In this matter, the Court relevantly made final property orders on 5 February 2021, following a final hearing. Those orders were made on the basis of oral reasons for judgment that were delivered on that day and were settled on 3 March 2021: see Molenaar & Molenaar [2021] FCCA 390. These reasons should also be read in conjunction with those reasons.

5. By her application, the Wife seeks that orders 14, 15, 16 and 20 of the final orders be enforced. Relevantly, order 14 provides for:

   14. Within 30 days the [Husband] vacate the property at E Street, Town F (“the property”) and leave the property in clean and tidy condition and will return all keys to the property to the[Wife’s] solicitor.

6. I note that order is the subject of an appeal by the Husband.  The Husband also filed an application on 5 March 2021 for a stay of, amongst other things, order 14 and 16 of the final orders. That application was refused by the Court on 17 March 2021.

7. For completeness, orders 15, 16 and 20 can be summarised as follows:

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

   (2)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 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.

   (3)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.

8. At the hearing of this matter on 11 May 2021, the Wife had Counsel appear on her behalf and there was no appearance by or behalf of the Husband. Orders were made as follows:

   1.The Applicant Wife be entitled to possession of the property at E Street, Town F, (“the real 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 Respondent Husband vacate the real property within 14 days.

   3.The Applicant Wife be at liberty to seek that a Warrant for Possession of the real property issue on the adjourned date without further notice to the Respondent Husband.

   4.The Applicant Wife cause a sealed copy of this Order to be emailed to the Respondent Husband at [email] and affixed to the front door of the real 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 real property the Order shall be placed in the mail box of the real property.

   5.The Applicant Wife cause to be filed prior to the adjourned date an affidavit setting out compliance with Order 4.

   6.The matter be adjourned to the Federal Circuit Court of Australia on 4 June 2021 at 10.00am with such hearing to be heard by Microsoft Teams.

   7.The Applicant Wife’s costs fixed at $610.00 be paid by the Respondent Husband from the Respondent’s share of the proceeds of sale of the real property, contemporaneously with the settlement of the sale of the real property.

   8.Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the Applicant to employ an advocate.

9. I note that an affidavit of service was filed on 18 May 2021, which sets out that the orders of 11 May 2021 were sent to the Husband by email on 17 May 2021. A further affidavit of service was filed on 24 May 2021, setting out that the orders were also affixed to the door of the property, in accordance with order 4 of the orders made on 11 May 2021. An annexure to that affidavit shows a photo of a document affixed to the door of the property. I am satisfied that the Husband has been properly served with the Court orders of 11 May 2021.

10. The matter came before me today for an Interim Defended Hearing. The Wife had Counsel appear on her behalf and the Husband appeared in person. I gave brief oral reasons at the conclusion of the hearing in respect of the orders that were made. These are those reasons.

11. During the course of the hearing, the Husband sought to make an oral application for an adjournment of the Wife’s application, on the basis that he may file an application in a case with supporting affidavit material. In response to a question from the Bench, the Husband indicated that the application would seek orders that he have sole occupancy of the property, and orders in respect of the fact that the Husband wishes to seek an agreement with the mortgage lender to refinance the property and that he would take over the mortgage payments.

12. The Court must now determine whether to grant an adjournment and the question of whether to issue a warrant of possession for the property which is the subject of these proceedings, pursuant to r25B.62 of the Federal Circuit Court Rules (Cth) (“the Rules”). Such an order would grant power to the Sheriff to enter the property, seize the property and to evict the Husband from the property.

    CONSIDERATION

13. The Respondent has had since 5 February 2021 to make arrangements to deal with his occupation of the property and to secure alternative accommodation.

14. The Husband informed the Court during the course of the hearing that he does not have any other accommodation and that, in effect, he will have to live in a car if he were to be evicted from the property. The Husband also told the Court that he would be required to source food from a soup kitchen if he were to be evicted from the property. Those submissions are inconsistent with the Husband’s proposed application to have sole occupancy of the property and to refinance the property. The Husband has had the capacity to access social services within the City J area to make arrangements for alternative accommodation. There is no evidence before the Court that he has done that.

15. In my view, to adjourn the matter further would add to the costs and stress of these ongoing proceedings, particularly for the Wife. The Wife is in straitened financial circumstances herself and has ongoing care of the children, pursuant to final parenting orders that were also made on 5 February 2021.

16. For these reasons, the Husband’s oral application for an adjournment is refused.

17. In the circumstances of the matter, the Court is of the view that it is appropriate to exercise its discretion to make an order for the issuing of a warrant of possession as proposed by the Wife in a minute of proposed orders provided to the Court and to the Husband prior to the hearing on 4 June 2021. The Wife’s proposed order is as follows:

    1.Pursuant to Rule 25B.62 of the Federal Circuit Court Rules 2001 (Cth), a warrant for the possession of the property situate at and known as E Street, Town F in the state of Victoria more particularly described in the Certificate of Title Volume … Folio … (“E Street, Town F Property”) shall be issued authorising an enforcement officer to enter the E Street, Town F Property and give vacant possession to the Applicant and the enforcement officer shall for this purpose have the following powers:

    a.to enter and search the E Street, Town F Property with the use of force if necessary;

    b.to seize the E Street, Town F Property;

    c.to eject the Respondent from the E Street, Town F Property with the use of force if necessary, he being the person who is not legally entitled to be on the E Street, Town F Property pursuant to Orders made 5 February 2021;

    d.to take vacant possession of and secure against any interference of the E Street, Town F Property; and

    e.to deliver vacant possession of the E Street, Town F property to the Applicant to the exclusion of the Respondent and all others.

18. That order will be made, save for the word ‘eject’ in subparagraph (c), which will be substituted with the word ‘evict’.

19. It is appropriate that the Husband pay the Wife’s costs of this application. The Wife has been required to bring this application, as the matter would otherwise be held in abeyance, and the Wife would be subject to ongoing financial stress. The costs sought by the Wife are to only cover the legal aid rate paid to the Counsel who appeared on behalf of the Wife at the hearing today. In my view, those costs are reasonable and it appropriate that orders be made for the Husband to pay those costs. Costs have been incurred by reason of the Husband’s failure to comply with the final orders made on 5 February 2021.

    CONCLUSION

20. The Court will make orders in the terms proposed by the Wife, save for the amendment to the proposed order in respect of the warrant of possession, as set out above. I note that the notation includes a direction to the enforcement officer so as to avoid the enforcement action being taken whilst the children are present at the property.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.

Associate:

Dated:       15 June 2021