Nest & Nest (No 6)

[2014] FamCA 1209

FAMILY COURT OF AUSTRALIA

NEST & NEST (NO 6) [2014] FamCA 1209

FAMILY LAW – PRACTICE AND PROCEDURE – Writ of Possession – where husband failed to comply with orders for vacant possession – wife seeks to enforce writ of possession – husband seeks a stay of orders and extension of time to file Notice of Appeal – husband’s application dismissed – orders made for wife to meet costs of Warrant and Writ of Possession from remaining settlement monies.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) 22.11

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Friscioni & Friscioni [2009] FamCAFC 43

APPLICANT: Ms Nest

RESPONDENT: Mr Nest

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 1821 of 2008

DATE DELIVERED: 25 November 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 25 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

UPON NOTING the wife has applied for the issue of a Writ of Possession, in terms of Order 5 made by me on 10 November 2014

IT IS ORDERED

1. That a Writ of Possession do issue with such order to remain in force until 25 November 2015.

2. That the Application in a Case filed by the husband on 24 November 2014 do stand dismissed.

3. That the proper costs necessary to execute the Warrant and Writ of Possession are to be paid from the balance of settlement monies remaining in the trust account of I Conveyancing.

4. Further consideration of the wife’s application for costs be adjourned to 9.15am on 16 December 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nest & Nest 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 ADELAIDE

FILE NUMBER: ADC 1821 of 2008

Ms Nest

Applicant

And

Mr Nest

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 10 November 2014, orders were made upon the application of the wife seeking that consequential orders be made to enable orders by way of settlement of property, made by me on 16 July 2014, be given effect.  The significant aspect to those orders was that upon the default of the husband in respect of the payment of the settlement sum, the husband was required to transfer the property at P Street, Suburb S to the wife.

2. At the conclusion of that last hearing, I delivered ex tempore reasons which have been settled and provided to each of the parties.  I found, at the conclusion of those proceedings, that orders should be put in place which would enable the encumbrances variously situate on the title to the said Suburb S property to be cleared, they being Enforcement and Recovery Unit levies, and an outstanding mortgage to BankSA.  It was also apprehended that there may be other outstanding rates, taxes, levies and charges in respect of the property.  They were required to be cleared in order that clear title could pass pursuant to the orders to the wife.

3. Importantly, I made orders that by 4 pm on 24 November 2014, the husband do vacate the premises at P Street, Suburb S and that he shall remove his possessions and property situate in and around the premises.  Order (5) of those orders provide for the consequences if the husband should fail to comply with the order providing for vacant possession of the Suburb S property to the wife.  In summary, the order allows for the issue of a Writ of Possession in favour of the wife which would authorise the Marshal of the Family Court of Australia and all such other authorised persons, including police officers of the Australian Federal Police and of the Police Force of South Australia, to do all such acts and things as necessary so that the orders can be complied with, and the delivery up of the property to the wife could take place.

4. The proceedings were thereafter adjourned to 16 December 2014 to consider matters relating to an outstanding costs application of the wife, but also to ascertain whether, in terms of the balance of the settlement sum - being $89,990 - how much more of that money may be required, either in terms of costs of compliance properly incurred by the wife, legal costs incurred both in respect of these proceedings but also in terms of the outstanding and as yet undetermined costs application of the wife.  It is noted, as is apparent from order (1), that arising under a slip rule adjustment, there was an arithmetical error in my judgment, and that order was amended to reflect the correct arithmetic, being $89,990.

5. Extensive reasons were provided on an ex tempore basis and, as I have indicated, I do not propose to repeat the matters raised therein.  The matter progressed to the extent where, demonstrably, Mr Nest continues to reside in the Suburb S property to the extent that Ms Nest has filed an affidavit on 25 November 2014 attesting to the fact that various communication has been forwarded to Mr Nest at the property, and that it is her opinion and view that Mr Nest continues to reside in the property.  There would appear to be no controversy about that.  Mr Nest continues to reside in the property and is resisting the order by the very nature of the application he brings.

6. What is important is that Ms Nest foreshadows that upon satisfying the Registry that Mr Nest remains in the property, she seeks the issue of a Writ of Possession.  It is clear that matters have reached a critical and serious point.  On 24 November 2014, the husband has filed an application.  That application came to my attention, and I considered that it was important, before any further action was taken by Ms Nest, that it be heard and determined at the earliest opportunity.  Accordingly, the matter was listed today commencing at 12.45 pm.

7. Part of the matters raised by Mr Nest is that he does not consider that he was able to attend Court, and sought the permission of the Court that the hearing be conducted by telephone.  In the ordinary course, that is an unusual way forward.  And notwithstanding that Mr Nest asserts, by documents annexed to his affidavit in support, that his medical issues are such that he would not have been able to personally attend the Court, I would have required that attendance.  However, the wife also seeks the same accommodation, and whilst it is unsatisfactory that both parties seek that the application be dealt with remotely, I was reluctantly prepared to accede to their separate requests for that to be done.

8. It has come to my attention, although it is obvious from the matters raised by Mr Nest that he has given some consideration to an appeal, that there is a draft Notice of Appeal that appears on the Registry record.  I am uncertain as to the status of that document, but what is clear is that as at the hearing of this application, no Notice of Appeal has been filed, no leave to appeal has been filed, and no application seeking an extension of time in respect of any appeal or appeals have been filed.

9. It is understood that Mr Nest has had significant opportunity, both leading up to the hearing of the trial and then the delivery of judgment in July 2014, to appeal both the interim arrangements that are put in place to give effect to the trial but also, more relevantly and importantly, the outstanding orders that I made at the conclusion of the final hearing but, again, they are matters that are covered in detail in my reasons of 10 November 2014.  It is, however, in recognition that Mr Nest is self-represented that some leeway be given in the sense of giving consideration to the draft appeal document. 

10. I appreciate that the document may not necessarily go forward and if it does so it may get changed. But it is raised by me because part of the orders that Mr Nest seeks are in respect of a stay of my orders. If I revert to the application in the case, order (1) seeks that there be a review of the decision of Registrar Paxton in respect of the signing of a Memorandum of Transfer to the Suburb S property. What has obviously happened is that pursuant to the orders that I made on 16 July 2014, Ms Nest has properly exercised her right, and has satisfied the Registrar by affidavit of the refusal of Mr Nest to execute the Memorandum of Transfer, and has sought relief and remedy pursuant to s 106A of the Family Law Act 1975 (Cth).

11. It is suggested that the wife committed a fraud in respect of the matters raised in the affidavit.  I do not consider that the Registrar has made an order.  I consider the Registrar has simply stepped into the shoes of the husband and has done that which the husband was ordered to do, namely, to give effect to the orders of 16 July 2014.  I reject that there is any reason to review the decision of the Registrar in the manner as sought.  I am not required to speak of orders (2) and (3) as sought because they have been dealt with in the sense that I have heard this application at the earliest possible opportunity.

12. To the extent that there are issues relating to method and manner by which Mr Nest would wish to communicate with the wife, they are matters that are unnecessary to deal with.  Both parties are present.  There is no need for there to be any issues relating to communication, and certainly as far as the wife is concerned - but also, perhaps, as far as the husband is concerned - notices of address for service are filed which contain the appropriate contact communication details.

13. Paragraph (4), however, is of some relevance because it seeks an order that my order of 16 July 2014 be stayed.  That order is, of course, the order made at the conclusion of the final hearing, and it is demonstrable that between 16 July 2014 and the present date, no appeal has been filed.  As is clear, taking into account the Family Law Rules 2004 (Cth), the filing of a Notice of Appeal does not, in and of itself, stay the operation of the order. Reference to rule 22.11 provides as follows:

    (1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided by a legislative provision.

    Order (2) and order (3) does not apply because there has been no appeal commenced or started.

14. The making of an order for a stay is wholly discretionary, and the circumstances that would justify an order for a stay depend upon the circumstances of this case.  I refer to the decision of Friscioni & Friscioni [2009] FamCAFC 43 at 54. Notwithstanding that I do not feel constrained to even consider the question of a stay in circumstances where there is not a valid appeal filed and, indeed, given the history of the matter there may well not be, nonetheless it is useful, I think, to set out the parameters of the principles that are applicable to the Court granting a stay.

15. In that regard, they are well enunciated in the decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106.  In that decision, the Full Court listed the factors relevant to the exercise of the discretion as follows:

    (1)The onus to establish a proper basis for the stay is on the applicant for the stay.  However, it is not necessary for the applicant to demonstrate any special or exceptional circumstances.

    (2)A person who has obtained a judgment is entitled to the benefit of that judgment.

    (3)A person who has obtained a judgment is entitled to presume the judgment is correct.

    (4)The mere filing of an appeal is insufficient to grant a stay.

    (5)The bona fides of the applicant.

    (6)A stay may be granted on terms that are fair to all parties, and this may involved a court weighing the balance of convenience and the competing rights of the parties.

    (7)A weighing of the risks that an appeal may be rendered nugatory if a stay is not granted. 

    And this will be a substantial factor in determining whether it will be appropriate to grant a stay.

    (8)Some preliminary assessment of the strengths of the proposed appeal and whether the appellant has an arguable case.

16. In this case, there has already been significant execution of the orders made by me on 16 July 2014.  Legal and equitable title has passed in the Suburb S property to the wife.  A settlement sum has been paid, and the consideration of the settlement sum and the status of the K property which, the wife concedes, should transfer properly to the husband has been the subject of my order made on 10 November 2014 in circumstances where the husband has, on the wife's evidence as properly presented, refused to execute a Memorandum of Transfer.

17. The issue to which the husband might be concerned is in respect of the transfer of title but, of course that has now taken place.  The husband has not filed an appeal.  However, it may well be trite to observe that if, indeed, the appeal that the husband would seek to file is as set out in the draft notice that he has provided to the Court and appears on the Court record, it is reasonable, I think, to find that each and every one of the grounds of appeal is, frankly, incomprehensible and of little or no merit.

18. It is my consideration, taking into account the circumstances of this case, the extraordinary length of time that has passed since the making of the final order, and the circumstances and effort that the wife has gone into in order to bring these matters to the attention of the husband, and to seek either his compliance with the orders or to exercise his proper rights in respect of an appeal is a telling factor in terms of the bona fides of the husband.  There is no real or genuine desire by the husband to either settle the proceedings, according to the orders made, or to have the Court properly consider the merits of any appeal that he would wish to bring.

19. I do not propose, therefore, to accede to the application of the husband that I should stay either the orders made 16 July 2014 or, indeed, the orders made 10 November 2014.  It is not alleged by Mr Nest that there is any error in the orders of 10 November 2014 because, of course, they are nothing more than mechanical orders as opposed to substantive orders in respect of the orders made of 16 July 2014. 

20. Order (7) of the application seeks that the wife be restrained from applying or producing the orders to third parties.  That has no merit, and I do not propose to make such an order in circumstances where the wife may well be required to produce a copy of the orders made by this Court on 16 July 2014 and 10 November 2014 in order to give them effect.

21. Order (8) seeks that there be an extension of time granted for the defendant to process and make an application in an appeal to the Full Court of the Family Court of Australia, both in terms of the review of the orders of Registrar Moroni and also of the orders that I made, presumably, on 16 July 2014 and 10 November 2014.  It is not a matter for me to make an order by way of an extension of time in respect of an appeal process.  The husband understands, as he has indicated today, that he has the right and the ability, if he so elects, to bring an application for an extension of time and the Full Court will consider that.  That is not a matter about which I am able to or, indeed, prepared to interfere.

22. In terms of paragraph (9) of the application, it seems to relate to an order that I require the Registrar-General of the Land Titles Office and/or Mr AA, Deputy Registrar-General of the Land Services Group, to remove various notations and transactions, mortgages and encumbrances, and charges in respect of the two properties, being the Suburb S property and the K property.  I am not prepared to make such an order.  I do not understand the order and, in any event, it would fly in the face of the orders that have already been made on 16 July 2014 which, in respect of the default of the husband to the payment of the settlement sum provided therein, enables and entitles the wife to seek the transfer of the husband's interest in the Suburb S property to her.

23. That is what has happened.  The wife has exercised her rights under those orders.  She has sought the mechanical relief provided by the Registrar in the signing of the Memorandum of Transfer, and the transfer, as she indicates, has not been given effect.  There is not a matter where the transfer is to be removed or, in some way, the transaction that the wife indicates to the Court has taken place is to be reversed.  I do not propose to make an order in terms of order (9).  Order (10) relates to a request for an order by the husband that Ms Nest sign all such documents necessary to transfer the K property to the husband.

24. Of course, the order of 16 June 2014 makes proper provision for the transfer of the wife's interest in the K property.  The evidence of the wife presented to the Court on the last occasion is that she has been trying to transfer her interest to the husband, but he had refused to cooperate in the execution of a Memorandum of Transfer.  The orders that I made on 10 November 2014 provide a method and manner by which the wife is able to secure the release from the safe deposit box of the BankSA Suburb BB branch of the Certificate of Title which then is able to be signed which would have the effect of transferring the property, that is, the K property, to the husband.

25. Now, the husband makes the point that why would he seek to have the K property transferred to him in circumstances where he rails against the orders of 16 July 2014 and seeks to appeal against that order.  That position adopted by the husband makes sense.  The only reason that the matter is being raised is because the husband, in his application, seeks the very same order that he opposes, namely, the transfer of the K property to him pursuant to the order of 16 July 2014.  The husband's submissions to me today, is that he wants the property irrespective of the fact that he intends to appeal the entirety of the orders of 16 July 2014 so that he can go off and seek to find, possibly, some finance is, frankly, nonsensical.

26. Order (11) of the application relates to an order that he seeks to require an accountant - the involvement of which, in the proceedings, is uncertain - to provide a full expert report of all outstanding debts and liabilities in relation to both parties.  I assume that that is a matter that the husband considered had some relevance leading up to the final hearing of the property settlement and the delivery of judgment in July of 2014.  It, of course, has no relevance now once the orders have been made, and against the backdrop of the mechanical orders of 10 November 2014, which would see the giving of effect to the order of the Suburb S property being transferred.

27. Mr Nest, in order (12), seeks that he have permission to listen to the audio transcripts.  He says he needs to do that in order to and I quote "ascertain how much transcript would be required in the appeal proceedings".  Mr Nest has the ability, like any other litigant in this Court, to seek the transcript of the proceedings.  To the extent that any judgment that I have made - both in terms of the final orders of 16 July 2014 and the orders of 10 November 2014 - are uncertain, both of those orders have been supported by delivered reasons.

28. It is a matter for Mr Nest to deal with the Registry in respect of that issue, but he can also seek the transcript.  His submissions today would suggest that he has received the transcript or, at least, has access to it in respect of 10 November 2014.  What he doesn't have, of course, is my reasons but he doesn't need to have that part of the transcript because my reasons have been reduced to writing and have been delivered. 

29. Order (13) again seeks an order that any contested hearing be expedited and provided in a PDF format via email.

30. It is not a matter for Mr Nest to dictate how I will hear and determine cases.  The history of this matter is that the Court has been diligent and expeditious in the hearing of the applications by and on behalf of the parties, and more importantly, the delivery of reasons usually written.  It is inappropriate for Mr Nest to seek an order that, in some way, the manner in which I choose to conduct the proceedings should be dictated by a litigant.

1. Order (14) relates to an order that Mr Nest seeks that in the event he is not granted access to the Full Court appeal process and he, therefore, decides that he should go to the High Court of Australia, then this Court will stay the proceedings and abide the final outcome.  Demonstrably, there is nothing I can do about that because, by necessary implication, the matters that Mr Nest is concerned about are within the province of the Full Court of this Court, and it certainly would not be appropriate for me to issue a stay whilst Mr Nest goes off to the High Court. 

2. That is a matter for the Full Court because the next step in this process, if Mr Nest chooses to exercise whatever residual right may exist, is that he seeks a stay from me, and I can indicate - on what is currently on the Court file - that is refused.  Secondly, if he is not able to secure an extension of time by the Full Court to bring his appeal and/or his application for leave to appeal, then any stay thereafter is a matter for the Full Court and not me.

3. Finally, Mr Nest seeks an order that the proceedings listed on 16 December 2014 be vacated, and that each party pay their own costs of and incidental to the proceedings.  The proceedings in respect of 16 December 2014 are proceedings in respect of the wife's application for costs in relation to the trial, and the costs of and incidental to her application in the case filed on 29 October 2014.  The position in that regard is that each of the parties have a right and an entitlement to be heard in respect of any application for costs.  It is a matter of discretion, as are all matters in respect of costs, and if an application is filed, I'm obliged to hear it and determine it.

4. So I do not intend to vacate the hearing of 16 December 2014 because Ms Nest has a right to be heard, as does Mr Nest, in respect of whatever residual matters are the subject of an application properly filed and to which this Court has jurisdiction.  In this case, it is the wife's application for costs.  It is proper that it be heard and determined, and at this stage I propose to leave that application as presently listed.  For those reasons, I intend to dismiss the application in the case filed by Mr Nest on 24 November 2014.

5. The wife, as I have indicated, has filed an affidavit of 25 November 2014 which advises the court and confirms that the husband remains a resident within the subject Suburb S property.  That affidavit foreshadows that the wife intends to seek the next step in the process, which is the issue of a Writ of Possession.  I can indicate that to the extent that the Writ of Possession needs to be signed by me, I will give effect to that document.  It is also the case that the Writ of Possession needs to have a time limit fixed, and I propose to limit the time that the Writ of Possession remains in force, subject to any extension thereof, to 25 November 2015.

6. The wife, in paragraph (12) of the affidavit, advises the Court that she is required to give an undertaking to pay reasonable costs of the execution of the warrant.  The warrant is made necessary by the non-compliance with the orders of the Court by the husband and to the extent, therefore, that she seeks an order that the husband reimburse her for any costs of the execution of the warrant from the settlement sum being held in I Conveyancing Real Estate, I propose to make that order. 

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 25 November 2014.

Associate: 

Date:  23 February 2015