ODETTE & LOTTO - [2018] FamCA 733

FAMILY COURT OF AUSTRALIA

ODETTE & LOTTO

[2018] FamCA 733

FAMILY LAW – ENFORCEMENT OF ORDERS – where the wife seeks the enforcement of final property orders – undefended hearing – where the husband withdrew instructions from his solicitor and counsel during the day and left the Court precincts – where the husband has failed to comply with final orders – orders made enforcing final orders.

FAMILY LAW – COSTS – order that the husband pay the wife’s costs on a solicitor/client basis.

Family Law Act 1975 (Cth) ss 105, 106A, 117
Family Law Rules 2004 (Cth) r 19.18

Hand & Bodilly [2013] FamCAFC 98
I and I (1995) FLC 92-625

APPLICANT:

Ms Odette

RESPONDENT:

Mr Lotto

FILE NUMBER:

MLC

11704

2015

DATE DELIVERED:

14 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

4 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Salamanca

SOLICITOR FOR THE APPLICANT:

Berry Family Law

THE RESPONDENT:

No Appearance

Orders

That pursuant to Section 106A(1)(b), the wife, Ms Odette be appointed to execute all documents in the name of the husband, Mr Lotto in order to:-
(a)      effect the transfer of the property known as B Street, Suburb C (“the B Street property”) to the wife, pursuant to order 3 of the orders dated 8 June 2017 (“the Final Orders”), such documents including but not limited to the State Revenue Office Digital Duties, Transferor Statement and Client Authorisation Form as mandated by the Australian Registrar National Electronic Council (“ARNECC”);
(b)      assign the Residential Tenancy Agreement with respect to the B Street property to the wife pursuant to order 7 of the Final Orders;
(c)      effect the rollover of $200,000 from the wife’s entitlements in the D Super into her E Super account, member number #25 pursuant to order 16(e) of the Final Orders.
That the husband by himself, his servants and agents be and is hereby restrained from selling or further encumbering the property at F Street, Suburb G (“the F Street property”) and the wife be permitted to lodge a caveat against the property.
That forthwith the wife be appointed as trustee for the sale of the F Street property, such sale to be at auction by H Real Estate with the reserve price of $820,000 and upon completion of the sale, the proceeds of sale including the deposit be distributed in the following priority:-
(a)     First, to pay all agents’ commissions and marketing costs of sale;
(b)     Second, to discharge any encumbrances affecting the F Street property (if any);
(c)     Third, to reimburse the wife rental income with respect to the B Street property from 22 June 2017;
(d)     Fourth, interest of $5,500.00 to the Wife;
(e)     Fifth, all land tax, rates and outgoings with respect to the B Street property;
(g)     Sixth, 50 per cent of the arrears of school fees, school uniforms, books and medical expenses payable by the husband pursuant to order 25(b) of the Final Orders;
(h)     Seventh, the legal costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ODETTE & LOTTO

Details

AGLC: ODETTE & LOTTO [2018] FamCA 733
Case: [2018] FamCA 733
Decision Date: 14 September 2018

CaseChat Overview and Summary

In the matter of *Odette & Lotto*, Johns J of the Family Court of Australia considered an application by the wife, Ms Odette, seeking the enforcement of final property orders made on 8 June 2017. The husband, Mr Lotto, had failed to comply with these orders. The hearing proceeded undefended as the husband had withdrawn instructions from his legal representatives and left the court precincts during the proceedings.

The court was required to determine how to enforce the existing final property orders, particularly in light of the husband's non-compliance and absence. This involved considering the appropriate mechanisms to ensure the transfer of property, the assignment of a tenancy agreement, and the rollover of superannuation entitlements as previously ordered. The court also had to address the husband's conduct in relation to other assets and the wife's entitlement to costs.

Johns J applied principles of family law concerning the enforcement of court orders, utilising powers under Section 106A(1)(b) of the relevant legislation. The court reasoned that given the husband's non-compliance and withdrawal from the proceedings, it was necessary to appoint the wife to execute documents on the husband's behalf to give effect to the final orders. This included the transfer of a property, assignment of a tenancy agreement, and a superannuation rollover. The court also made orders restraining the husband from dealing with another property and appointed the wife as trustee for its sale, with specific directions for the distribution of proceeds. Furthermore, the court ordered the husband to pay the wife's costs on a solicitor-client basis, reflecting the husband's conduct.

Orders

Orders of the court

That pursuant to Section 106A(1)(b), the wife, Ms Odette be appointed to execute all documents in the name of the husband, Mr Lotto in order to:-

(a) effect the transfer of the property known as B Street, Suburb C (“the B Street property”) to the wife, pursuant to order 3 of the orders dated 8 June 2017 (“the Final Orders”), such documents including but not limited to the State Revenue Office Digital Duties, Transferor Statement and Client Authorisation Form as mandated by the Australian Registrar National Electronic Council (“ARNECC”);

(b) assign the Residential Tenancy Agreement with respect to the B Street property to the wife pursuant to order 7 of the Final Orders;

(c) effect the rollover of $200,000 from the wife’s entitlements in the D Super into her E Super account, member number #25 pursuant to order 16(e) of the Final Orders.

That the husband by himself, his servants and agents be and is hereby restrained from selling or further encumbering the property at F Street, Suburb G (“the F Street property”) and the wife be permitted to lodge a caveat against the property.

That forthwith the wife be appointed as trustee for the sale of the F Street property, such sale to be at auction by H Real Estate with the reserve price of $820,000 and upon completion of the sale, the proceeds of sale including the deposit be distributed in the following priority:-

(a) First, to pay all agents’ commissions and marketing costs of sale;

(b) Second, to discharge any encumbrances affecting the F Street property (if any);

(d) Fourth, interest of $5,500.00 to the Wife;

(e) Fifth, all land tax, rates and outgoings with respect to the B Street property;

(g) Sixth, 50 per cent of the arrears of school fees, school uniforms, books and medical expenses payable by the husband pursuant to order 25(b) of the Final Orders;

(h) Seventh, the legal costs of J Lawyers associated with the transfer of the B Street property and the sale of the F Street property;

(i) Eighth, the wife’s costs of and incidental to her Applications in a Case filed 19 April 2018 and 20 July 2018 as agreed between the parties and in the event of no agreement as assessed on a solicitor/client basis; and

(j) Ninth, the balance to the Husband.

That the husband co-operate to the fullest extent and do all such acts and things and sign all necessary documents to facilitate the F Street property.

That until further order the husband by himself, his servants and/or agents each be and are hereby restrained from;

(a) dealing with, disposing of or encumbering the F Street property;

(b) interfering with the sale process of the F Street property;

(d) dealing with any asset including any cash deposits held by D Super.

That Order 4 of the Orders dated on 9 May 2018 be discharged.

That the husband and wife jointly retain J Lawyers to conduct the conveyancing for the sale of the F Street property.

That the wife have liberty to apply with respect to the implementation of these orders.

That the wife’s Applications in a Case filed 19 April 2018 and 20 July 2018 and the husband’s Response to an Application in a case filed 7 May 2018 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.