Odetta & Odetta

[2023] FedCFamC2F 1280

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Odetta & Odetta [2023] FedCFamC2F 1280

File number(s):	MLC 6721 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	21 September 2023
Catchwords:	FAMILY LAW – property application – where husband and wife have not separated – where one party is in prison -    intervention of the Director of Public Prosecutions – where there is a freezing order on the matrimonial home pending proceeds of crime proceedings – where a stay order is mandatory.
Legislation:	Family Law Act 1975 (Cth) ss 79B, 79C, 79D, 79E.
Division:	Division 2 Family Law
Number of paragraphs:	8
Date of hearing:	21 September 2023
Place:	Melbourne
Solicitor for the Applicant:	Medson Legal Pty Ltd
The Respondent:	No appearance
Solicitor for the Intervener:	The Director of Public Prosecution for Victoria

ORDERS

MLC 6721 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ODETTA

Applicant

AND:

MR ODETTA

Respondent

DIRECTOR OF PUBLIC PROSECUTION FOR VICTORIA

Intervener

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	21 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to section 79C(1) of the Family Law Act 1975 this proceeding is stayed.

2.The Solicitor for the applicant Wife arrange and ensure that a copy of these Orders are brought to the attention of MR ODETTA born in 1963.

AND THE COURT NOTES THAT:

A.Mr Odetta did not attend Court via Microsoft teams today due to being incarcerated.

B.The solicitor for the applicant Wife informed the Court that Mr Odetta’s solicitor was notified about the relevant court proceedings as well as being provided with a link to Microsoft Teams. In those circumstances, the Court was satisfied that Mr Odetta has had notice and the opportunity to participate, and the applicant Wife said she has discussed the proceeding with the respondent Husband.

C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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).

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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of a judgment delivered ex tempore.  These reasons were delivered orally.  These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read.  The substance is unchanged.

2. The matter of Odetta & the Director of Public Prosecutions comes before me this morning. 

3. The Husband and the Wife in the proceedings have not separated in the sense of the consortium vitae has not broken down.  However, they are physically separated because [Mr Odetta] has been sentenced to imprisonment with a non-parole period. 

4. Following from that, his Honour in the County Court of Victoria, Common Law Division, Confiscation List ordered what can be described as a freezing order.  That order includes the following:

   1.No person shall dispose of or otherwise deal with the property specified below or any interest in that property:

   (a) the interest of [the Husband]in the real property situated at [address] in the State of Victoria more pai1icularly described in Certificate of Title Volume […] Folio […].

   2.        There be liberty to apply generally. 

   AND THE COURT DECLARES pursuant to section 15(3)(a) of the Confiscatfon Act 1997 that the prope1ty specified in paragraph 1 of this order be ·restrained for the following purpose:

   (a) to satisfy any order for restitution or compensation that may be made under the Sentencing Act 1991.

5. The consequence of the making of that freezing order is set out in Part VIII of the Family Law Act 1975 (Cth), including the following sections:

   79B      Notification of proceeds of crime orders etc.

   (1)If:

   (a)a person makes an application for an order, under this Part, with respect to:

   (i)the property of the parties to a marriage or either of them; or

   (ii)the maintenance of a party to a marriage; and

   (b)the person knows that the property of the parties to the marriage or either of them is covered by:

   (i)a proceeds of crime order; or

   (ii)a forfeiture application;

   the person must:

   (c)disclose in the application the proceeds of crime order or forfeiture application; and

   (d)give to the court a sealed copy of that order or application.

   (2)A person who does not comply with subsection (1) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

   (3)If:

   (a)a person is a party to property settlement or spousal maintenance proceedings under this Part; and

   (b)the person is notified by the proceeds of crime authority that the property of the parties to the marriage or either of them is covered by:

   (i)a proceeds of crime order; or

   (iii)a forfeiture application;

   the person must:

   (c)notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and

   (d)give the Registry Manager:

   (i)a copy of the notification referred to in paragraph (b) (if the notification is in writing); and

   (ii)a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application).

   (4)A person who does not comply with subsection (3) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

   79CCourt to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.

   (1)A court in which property settlement or spousal maintenance proceedings are pending must stay those proceedings if notified under section 79B in relation to the proceedings.

   (1A)The court may, before staying proceedings under subsection (1), invite or require the proceeds of crime authority to make submissions relating to staying the proceedings.

   (2)A court must, on the application of the proceeds of crime authority, stay property settlement or spousal maintenance proceedings under this Part if the property of the parties to the marriage or either of them is covered by:

   (a)a proceeds of crime order; or

   (b)a forfeiture application.

   (3)A court must notify the proceeds of crime authority if the court stays property settlement or spousal maintenance proceedings under subsection (1) or (2).

   (4)The proceeds of crime authority must notify the Registry Manager if:

   (a)a proceeds of crime order ceases to be in force; or

   (b)a forfeiture application is finally determined.

   (5)For the purposes of subsection (4), a forfeiture application is taken to be finally determined when:

   (a)the application is withdrawn; or

   (b)if the application is successful—the resulting forfeiture order comes into force; or

   (c)if the application is unsuccessful—the time within which an appeal can be made has expired and any appeals have been finally determined or otherwise disposed of.

   79DLifting a stay

   (1)A court that stayed the property settlement or spousal maintenance proceedings under section 79C must wholly or partially lift the stay if:

   (a)either party to the proceedings makes an application for the stay to be lifted and the proceeds of crime authority consents to such an application; or

   (b)the proceeds of crime authority makes an application for the stay to be lifted.

   (2)A court that stayed the property settlement or spousal maintenance proceedings under section 79C may, on its own motion, wholly or partially lift the stay if the proceeds of crime authority consents to such a motion.

   (3)Giving the Registry Manager written notice of the proceeds of crime authority’s consent under this section is taken to be the giving of that consent, unless the court requires the authority to appear in the proceedings. The notice may be given by the authority or by a party to the proceedings.

   79EIntervention by proceeds of crime authority

   (1)The proceeds of crime authority may intervene in any property settlement or spousal maintenance proceedings in relation to which a court is notified under section 79B, or in any proceedings under section 79C or 79D in which the authority is not already a party.

   (2)If the proceeds of crime authority intervenes, the authority is taken to be a party to the proceedings with all the rights, duties and liabilities of a party.

6. The Director of Public Prosecutions, being a confiscation authority, has notice of these proceedings and does not consent to a stay order being lifted, or not made. The consequence is that, pursuant to section 79C(2), I must stay the property settlement proceedings between Ms Odetta and Mr Odetta.

7. Ms Odetta, by her solicitor, recognises the inevitability and consequence of that order. 

8. The further matter I should acknowledge is that I am satisfied that the proceedings this morning have been brought to the attention of [Mr Odetta] and he is aware of the proceedings. Further, I am satisfied that he has nothing to say about the inevitable court order that I must make this morning.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       5 October 2023