Oberon & Aquila (No 2)
[2025] FedCFamC2F 400
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Oberon & Aquila (No 2) [2025] FedCFamC2F 400
File number(s): SYC 7367 of 2022 Judgment of: JUDGE COLQUHOUN Date of judgment: 28 March 2025 Catchwords: FAMILY LAW – PROPERTY – where the parties are in dispute of the interpretation of a final order – where there is evidence of family violence – where the wife requires access to the property for the purposes of arranging work to be carried out in order to sell the property – where the order should be varied to reflect the intention of the Court Legislation: Family Law Act 1975 (Cth) s 68B
Federal Circuit Court and Family Law Rules 2021 (Cth) r 10.13(1)(e)
Cases cited: Oberon & Aquila [2025] FedCFamC2F 105
Pawley & Pawley (No 2) [2017] FamCAFC 136
Division: Division 2 Family Law Number of paragraphs: 24 Date of last submission/s: 13 March 2025 Date of hearing: In Chambers – determined on the papers Place: Sydney Solicitor for the Applicant: Ms Malic of Southern Waters Legal For the Respondent: Litigant in person ORDERS
SYC 7367 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS OBERON
Applicant
AND: MR AQUILA
Respondent
ORDER MADE BY:
JUDGE COLQUHOUN
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.Order 5 of the Orders dated 7 February 2025, pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), be varied by inserting the following additional words before the full stop:
and, for the purposes of this Order, the husband shall vacate the Suburb C property, including removal of all belongings he wishes to retain, by 5pm on 11 April 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COLQUHOUN:
On 7 February 2024 I delivered reasons for judgment and made orders for the disposition of property adjustment proceedings between the applicant wife, Ms Oberon (“the wife”), and the respondent husband, Mr Aquila (“the husband”): Oberon & Aquila [2025] FedCFamC2F 105 (“the Primary Judgment”).
The parties are now in dispute about the interpretation of Order 5 of those orders:
The Trustee is empowered to take possession of the [Suburb C] property and require vacant possession in order to effect a sale of the [Suburb C] property.
This matter was relisted before me on 6 March 2025 on the wife's request in accordance with Order 14, which granted leave to the parties to relist the matter on seven days notice in writing regarding the implementation of the orders.
Since the orders were made, the wife has asked the husband to vacate the property so she can take steps to ensure that it is ready for sale, but he has refused to do so.
The wife now asks the Court to vary Order 5 pursuant to Rule 10.13(1)(e) of the Federal Circuit Court and Family Law Rules 2021 (Cth) (“the Rules”) by expanding it to include the following italicised words below:
The Trustee is empowered to take possession of the [Suburb C] property and require vacant possession in order to effect a sale of the [Suburb C] property and for the purposes of this Order, the husband shall vacate the [Suburb C] property, including removal of all belongings he wishes to retain, by 5pm on [date 14 days following the date Orders are made], and thereafter the Husband is restrained from attending or approaching the [Suburb C] property and the wife shall have exclusive occupation of the [Suburb C] property.
The husband opposes the variation sought.
I directed the parties to file written submissions on their positions in relation to the vacation of the property required by Order 5 within seven days and they both did this on 13 March 2025.
The wife's submissions, in summary, were:
(a)She requires access to the Suburb C property to prepare it for immediate sale. Whilst she has not entered the Suburb C property in over 5 years to know the internal condition of same, a number of photos were included in evidence of the incredibly poor state of the exterior of the Suburb C property.
(b)The single expert, Mr B, had opined that the exterior of the property was in poor condition, requiring maintenance and upkeep. The wife requires access to the property in order to complete this work.
(c)There is a final apprehended domestic violence order (ADVO) dated early 2024 in place (valid until early 2026) which prohibits the respondent from coming within 100m of where the applicant lives or works. The wife is uncomfortable about approaching or entering the property while he continues to live there and have access to it, given the circumstances of the ADVO.
(d)Order 5 does not reflect the intention of the Court for the husband to vacate the property to allow the wife as trustee to prepare the property for sale and to effect its sale.
(e)Orders 7 and 8(d) demonstrate the Court's intention to enable the wife to attend to works to prepare the Suburb C property for sale and to effect its sale.
(f)The husband's conduct is a further attempt by him to prolong these proceedings, increase the wife's legal fees and thwart the applicant in her attempts to prepare the Suburb C property for sale in accordance with the final orders, a continuation of the respondent's obstructive behaviour throughout the entirety of the proceedings.
(g)The husband has had ample time to arrange removal of his belongings to vacate the property and the wife is concerned that the respondent will continue to prevent the finalisation of these proceedings and interfere with attempts made to sell the property.
The husband asked the Court to:
(a)clarify the orders to require vacant possession only at settlement;
(b)clarify that Order 7 applies to routine maintenance tasks, excluding unnecessary or speculative improvements;
(c)acknowledge any alteration to Order 5 requiring vacant possession before settlement constitutes a substantive, unjustifiable change;
(d)recognise the inequity resulting from requiring early vacant possession, leaving him financially liable without corresponding property rights; and
(e)confirm vacant possession prior to settlement is unnecessary for completing the Trustee's obligations, given the modest nature of identified work and the Trustee's ability to fulfil duties remotely.
The husband's submissions, in summary, were:
(a)Order 5 empowers the Trustee to take possession of the Suburb C property and require vacant possession to "effect a sale". In Australian property law and standard real estate practice, the term "effect a sale" refers specifically to the actions required during the settlement period to progress a transaction to completion, typically initiated by the exchange of contracts.
(b)Vacant possession is a common contractual requirement at settlement.
(c)The slip rule is strictly limited to correcting clerical errors or accidental omissions and does not permit substantive modifications. Any attempt to use the slip rule to enable vacant possession before settlement would be legally impermissible and require a formal variation application under section 79A.
(d)Rule 10.13(e) allows the Court to vary or set aside an order only if it does not reflect the Court's intention. In this case, the existing Order 5 reflects the Court's intention.
(e)The valuer had only listed modest and routine property maintenance tasks necessary to prepare the property for sale totalling $6,500. Order 7 should be limited to work not exceeding this cost.
(f)The wife has breached her fiduciary duties as Trustee. Given the existing ADVO at trial the Court considered that the Trustee's duties could be conducted remotely without physical attendance at the property.
(g)Order 3 requires the husband to maintain mortgage payments pending settlement. Requiring vacant possession would be unfair to him. Vacant possession would impose additional costs on the husband when this property serves as his residence and workplace.
(h)The existing final orders reflect careful consideration of fairness, equity and just division under the Family Law Act 1975 (Cth). Requiring vacant possession before settlement would necessitate reconsideration of his obligations under Orders 3 and 4. These changes are beyond the Court's procedural authority without a formal variation under s 79A.
The question for the Court is whether the order should be varied to reflect the Court's intention.
SHOULD THE ORDERS BE VARIED TO REFLECT THE COURT'S INTENTION?
Rule 10.13(1)(e) permits a Court to vary or set aside an order “if it does not reflect the intention of the court”. In considering whether the order reflects the intention of the Court “it is necessary to look at the surrounding circumstances which include the reasons, the pleadings and, if necessary, the evidence and how the case was conducted”: Pawley & Pawley (No 2) [2017] FamCAFC 136 at [34] per Thackray J.
Some of the surrounding circumstances, including evidence, in relation to my making of the orders in this matter were:
(a)the evidence of family violence, including the making of apprehended domestic violence orders (ADVOs) and a conviction of the husband for malicious damage in 2023;
(b)my findings that the husband had not maintained the property and that there was a need for work to be undertaken before the property could be sold; and
(c)my findings in relation to the husband's uncooperative conduct in the proceedings.
Allegations of family violence
In the proceedings the wife gave unchallenged evidence about coercive and controlling behaviour on the part of the husband. She also deposed to an incident of family violence in late 2023, which had resulted in the husband being charged with and convicted of malicious damage and ADVOs being made for the protection of the wife and her partner, as summarised in paragraph 15 of my reasons in the Primary Judgment as follows:
[In late] 2023 the wife and [Mr D] observed that their cars had been damaged by someone "keying" or scratching the panels. The wife and [Mr D] obtained CCTV footage from the neighbour across the road. This footage showed the husband walking along the back of [Mr D]’s car whilst [E] was standing with him and whilst [F] was in the car of the husband. Footage from later that night showed the husband walking down the side of and behind the wife's car, trailing his arm behind him. The footage was tendered and exhibited into evidence. The wife and [Mr D] attended [Suburb G] Police Station […] to make statements and ask the Police to take out Apprehended Violence Orders (ADVOs). The husband was then charged with […] malicious damage. He pleaded guilty to those charges in [early] 2024. Final ADVOs were also made for the protection of the wife and [Mr D] for two years.
Given the evidence about family violence, it was certainly not the Court’s intention to require the wife to come into contact with the husband in making arrangements for the sale of the property. Such a situation would be untenable for the wife. The husband’s interpretation of Order 5 hinders her in the performance of her role as Trustee in relation to the sale of the property. The husband has complained about delay in the performance of her Trustee duties, but that delay is a product of his position. It was also not the Court's intention for the wife to entirely perform her role remotely, as this would be extremely difficult and impracticable, even though this specific point was not expressly addressed in Order 5.
Failure to maintain property and need for work to be undertaken
Paragraphs 102 and 103 of the Primary Judgment reflected a finding that the husband had failed to adequately maintain the property:
The husband stopped paying the mortgage in October 2023 and this has resulted in an erosion of equity in the property. He has had the benefit of residing in the home since separation, while the wife has been forced to find alternate accommodation for herself and the children and pay the rent on that accommodation.
There is evidence before the Court of the husband's failure to maintain the property. The single expert valuer [Mr B] gave evidence in his affidavit of the value of the property and observed that the external gardens and landscaping were in a poor and untidy condition. [Mr B] recommended that attention be given to internal and external maintenance before the property is put on the market for sale.
I accepted the evidence of the valuer that there was a need for work to be carried out on the interior and the exterior of the property. It was the Court's intention that the orders would allow the wife access to the property to ensure that the property was ready for sale. That intention was also reflected in Order 7, which provided for the wife to attend to and meet the costs of the works required to prepare the property for sale, even if it was not expressly addressed in Order 5.
Conduct in the proceedings
In paragraph 97 of the Primary Judgment I made the following findings in relation to the husband's conduct in the proceedings:
Under s 90SF(3)(r) of the Act, I am permitted to consider any other facts or circumstances where the justice of the case requires it to be taken into account. The husband's conduct in these proceedings is relevant. I find that the husband has either deliberately ignored or thwarted attempts made to ensure full financial disclosure. I also find that his conduct in the proceedings (referred to above) by failing to comply with orders and directions and by failing to file material, has led to an unnecessary prolonging of proceedings and the wife incurring increased legal costs. He failed to disclose financial documentation and did not file a financial statement until the third day of the hearing. This conduct has clearly made it impossible for the wife to consider her position or to undertake any sensible negotiations.
My findings in relation to his conduct in the proceedings, by failing to comply with orders and not filing material, justified the appointment of the wife as Trustee in Order 2. It is necessary for the husband to vacate the property in order for the wife to properly perform her duties as Trustee. In light of my findings in relation to the husband’s uncooperative conduct, it was not my intention that he be permitted to remain in the Suburb C property while the wife take steps to effect its sale, but I accept that Order 5 does not expressly reflect my intention in this respect.
CONCLUSION
It is unfortunate that these parties are before the Court again in relation to this matter. The property should be sold as soon as possible to allow both parties to move on with their lives.
I have carefully considered the submissions made by both parties. Although Order 5 was made on the application of the wife and in accordance with the precise terms proposed by her it has become clear that further clarification and elaboration is required in order to give effect to the Court’s intention and to prevent further conflict about this issue. I am satisfied that it is appropriate to exercise my power under r 10.13(1)(e) to vary the Order made on 7 February 2025 to properly and fully reflect my intention in making that order. To clarify the order, I will vary it by adding the following:
and, for the purposes of this Order, the husband shall vacate the [Suburb C] property, including removal of all belongings he wishes to retain, by 5pm on 11 April 2025.
The wife has also proposed some additional wording which would have the effect of injunctive orders under s 68B of the Family Law Act 1975 (Cth) restraining the husband from attending or approaching the Suburb C property and providing for the wife to have exclusive occupation of the Suburb C property. Those orders were not sought in the hearing before me and it was therefore not my intention to make those orders. The order will provide for the husband to vacate the property by 5pm on 11 April 2025.
Order 5 will be amended accordingly.
This matter was relisted for the purpose of considering the wife’s request to vary Order 5. The husband, in his written submission, subsequently requested a variation of Order 7 as referred to in paragraphs 9(b) and 10 (e) above. No basis has been identified for concluding that Order 7 does not reflect the Court’s intention. Accordingly, I decline to vary it. There are no other issues raised in the husband’s submissions which would justify the making of further variations to the orders to reflect the Court’s intentions.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Colquhoun. Associate:
Dated: 28 March 2025
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