Morello and Miller

[2013] FamCA 800

FAMILY COURT OF AUSTRALIA

MORELLO & MILLER [2013] FamCA 800

FAMILY LAW – Section 106A application – enforcement - undefended

Family Law Act 1975 (Cth)

APPLICANT: Mr Morello

RESPONDENT: Ms Miller

FILE NUMBER: MLC 2757 of 2013

DATE DELIVERED: 4 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 October 2013

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No appearance

Orders

1. That upon production by the applicant in person with a transfer of land in registrable form relating to the property at B Street, C Town, pursuant to s 106A of the Family Law Act 1975 (Cth), the Registrar sign the transfer in the name of the wife as a result of the orders made on 17 June 2013.

2. That the application in a case filed 4 September 2013 is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2757 of 2013

Mr Morello

Applicant

And

Ms Miller

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case by Mr Morello seeking a number of orders. He seeks the enforcement of orders made in this Court on 17 June 2013. One of the orders was to have the Registrar under s 106A of the Family Law Act 1975 (Cth) (“the Act”) sign the transfer of land document in the name of the respondent and another related to the issuing of a warrant to enable the applicant to have vacant possession. As a result of conversation, which the transcript will note the applicant says occurred during the luncheon break with the respondent, he is now choosing only to proceed with the application under s 106A on the basis that the respondent has vacated the premises and, therefore, he should be able to get possession.

2. The orders were made by consent of the parties on 17 June this year.  A variety of orders were interconnected, but on any view of the evidence that I have read contained in the affidavit filed on 4 September, the respondent was to transfer her interests in the property at B Street, C Town to the applicant.  The evidence shows that the transfer was prepared, but the respondent for whatever reason, has refused to sign it.

3. The problem became a little bit more confusing because there was no evidence of service now that the applicant is without legal representation.  That has been cured over the luncheon break because he has provided through his solicitors, an affidavit which clearly shows that the documents that I am dealing with, were sent by post to the respondent at B Street.  Whilst that may not necessarily confirm the service, the conversation between the applicant and the respondent over the luncheon break clearly did.  The applicant has deposed to that conversation.

4. At some stage or other in the past, prior to the final orders being made the respondent lodged a caveat against the property, as did a firm of solicitors which seems to have been the firm acting for her. The affidavit evidence shows that the solicitors acting at the time for the applicant served notice under s 89A of the Transfer of Land Act 1958 (Vic) indicating that as a consequence of the orders, neither party had any caveatable interest.

5. The Registrar of Titles must have acted on the notice indicating that the caveat would lapse unless proceedings were brought because I have been handed and have received into evidence, a document from the Department of Sustainability and Environment dated 3 September 2013 addressed to the applicant’s former solicitors indicating that the two caveats have been marked as lapsed.  It was a little difficult to follow because the caveats referred to in that notice do not entirely match the numbers referred to in the affidavit, but I will accept that based on the conversation between the applicant and the respondent over the luncheon break, that is no longer a problem.

6. This is a case where having regard to the evidence it would seem that no matter what the applicant does, the respondent is not going to cooperate.  As he indicated when he asked her when she vacated the property, she told him it was none of his business.  If that is the way she decides to participate in the conclusion of their financial relationship, I do not think the Court needs to be too fussed about treading on her toes.

7. This is a case where it is appropriate to presume that the respondent will not sign the transfer, as has been indicated by her past behaviour and on that basis I shall make an order that upon production to the Registrar by the applicant with a transfer of land in registrable form relating to the property at B Street, C Town, pursuant to s 106A of the Act, the Registrar sign the transfer in the name of the respondent. I will otherwise dismiss the application filed 4 September 2013.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 October 2013.

Associate: 

Date:  16 October 2013