Niklaus and Niklaus

[2014] FamCA 539

FAMILY COURT OF AUSTRALIA

NIKLAUS & NIKLAUS [2014] FamCA 539

FAMILY LAW – PROPERTY – Application for removal of caveat – husband to withdraw caveat lodged over property – registrar authorised to sign pursuant to s 106A in default of husband’s compliance – injunctive orders.

Family Law Act 1975 (Cth) s 106A

APPLICANT: Ms Niklaus

RESPONDENT: Mr Niklaus

FILE NUMBER: MLC 5596 of 2014

DATE DELIVERED: 21 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 2 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Kliger Partners

COUNSEL FOR THE RESPONDENT: In person via telephone

SOLICITOR FOR THE RESPONDENT: N/A

ORDERS

IT IS ORDERED BY THE COURT THAT

1. By 12.00 noon on 3 July 2014 the husband do all acts and things and sign all such documents as may be required to provide a signed Withdrawal of Caveat in respect of Caveat AK510464D to the applicant wife’s solicitor in registrable form.

2. In default of the respondent husband’s compliance with paragraph 1 hereof, a Registrar of the Family Court of Australia at Melbourne be appointed under s 106A of the Family Law Act 1975 (Cth) to execute the Withdrawal of Caveat upon the wife filing an affidavit sworn by her solicitor deposing as to the respondent husband’s failure to comply with paragraph 1 of these orders.

3. Until further order, settlement of the sale or whichever first occurs, the respondent husband be and is hereby restrained by injunction from:

   a)   Entering, remaining upon, loitering in and around, or approaching the boundary of the property at B Street, C Town in the State of Victoria (including the shed located on the property);

   b)     Damaging, or causing to be damaged, the property (including the shed and items located in it) or otherwise engaging in any act which has the effect of decreasing the value of the property; and

   c)     Damaging, or causing to be removed, any item of property located in, on or around the property (including any item of property in the shed on the property).

4. Upon the settlement of the sale of the property, the parties (together and by themselves) do all acts and things and sign all such documents as may be required to authorise Kliger Partners to invest the net proceeds of sale (inclusive of the deposit) in an interest bearing account in trust for the parties to these proceedings on the condition that such funds not be released unless:

   a)   With the prior written consent of each party to these proceedings; or

   b)     By order of this Honourable Court.

5. By no later than 4.00 pm on 18 August 2014, the husband make, file and serve:

   a)   a response to initiating application;

   b)     a financial statement that complies with Chapter 13 of the Family Law Rules; and

   c)     an affidavit.

6. The wife’s initiating application filed 26 June 2014 be otherwise adjourned for hearing in the Registrar’s Directions List at 10.00 am on 25 July 2014.

7. Reasons be delivered as soon as practicable.

8. Both parties’ costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Niklaus & Niklaus 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 5596 of 2014

Ms Niklaus

Applicant

And

Mr Niklaus

Respondent

REASONS

1. On 2 July 2014 I made a number of orders sought by the wife including an order requiring the husband to provide a signed Withdrawal of Caveat over the title to the property situate at B Street, C Town (“the C Town property”) in the State of Victoria in registrable form to the wife’s solicitor by 12 noon on 3 July 2014 and that in the event that he did not do so a Registrar of this Court be appointed to execute the document in his stead. I also made orders restraining the husband from entering upon the C Town property until settlement of the sale of that property, or until further order, or whichever first occurs. Having made those orders I reserved my reasons. These are those reasons.

2. The wife’s initiating application filed 26 June 2014 was listed before me on an urgent basis in the Judicial Duty List on 2 July 2014. The husband was served with the wife’s application on Friday 27 June 2014 and has not had the opportunity to file any material in response to that application. At the hearing before me Mr Davis appeared on behalf of the wife and the husband appeared in person via telephone from New South Wales.

3. The husband is 48 years of age and, according to the wife, operates his own business. He is in good health. Although the wife suffers from Multiple Sclerosis she holds two positions as a nurse and works approximately 24 hours per week in each position. The parties were married in 2003 and separated on 9 September 2013. There are no children of the marriage.

4. The wife set out in some detail the history of the sale of the C Town property, including the earlier unsuccessful auction, her efforts to keep the husband advised of the steps she had taken to sell the property following the auction, and the forthcoming settlement of that sale.

5. The orders I made are not by consent however the husband sought leave and appeared by telephone at the hearing before me and, although he objected to having not been given sufficient notice of the wife’s application, he did not oppose the settlement of the sale of the C Town property or ultimately my making the necessary orders the wife sought to give effect to that settlement. It is not necessary in those circumstances to go into too much detail as to what has occurred save to say that the parties both agreed that settlement proposed for 4 July 2014 should proceed.

6. The husband also indicated that he would not be returning to the Mildura area until after the proposed settlement of the sale. He did not on that basis oppose the orders that he be restrained from attending at the property pending settlement albeit that he expressed some reservations about being prohibited from attending the property on an indefinite basis in the event that settlement did not proceed. It was on that basis that I ordered that the husband be restrained until settlement or further order, whichever first occurred, giving the husband the opportunity when the matter is next listed for hearing to object to the restrictions upon his access to the property.

7. The other issues of concern to the husband, which are addressed by the orders I made, was the investment of the proceeds of sale pending either the parties reaching agreement or further order and that, given the fact that the husband had been given short notice of the proceedings, that costs be reserved.

8. I note that the matter has been otherwise adjourned for hearing in the Registrar’s Duty List at 10.00 am on 25 July 2014 and that the husband is required to file and serve a response and an affidavit in support of that response by 4.00 pm on 18 July 2014.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 21 July 2014.

Associate: 

Date: 18 July 2014