Ortona and Peters (No 3)

[2015] FamCA 804

FAMILY COURT OF AUSTRALIA

ORTONA & PETERS (NO 3) [2015] FamCA 804

FAMILY LAW – ENFORCEMENT OF ORDERS – Application by the father to enforce property orders made by consent in relation to the sale of property – where the mother failed to directly address the reasons for her non-compliance – where the mother left the Court building before the matter could be completed – interim orders made that in the event mother fails to comply with orders a Registrar of this Court be authorised to sign on her behalf pursuant s106A of the Family Law Act 1975.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ortona

RESPONDENT: Ms Peters

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 7 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 July 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. By 4.00 pm on 14 July 2015 the mother sign and deliver to the father a copy of the letter authorising the President of the Real Estate Institute of Victoria dated 30 March 2015 to appoint a selling agent for the properties described in paragraph 22 of the orders made 26 February 2015 which is annexure ‘JO- 4’ of the father’s affidavit sworn 18 May 2015 (‘the authority’).

2. In the event the father has not received the authority by 4.00 pm on 14 July 2015 pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar of the Melbourne Registry of this Court be appointed to sign the authority in lieu of the mother upon the father confirming in writing that he has not received the signed authority from the mother.

3. Within seven days of a request to the mother in writing from the father to sign any document required to give effect to paragraph 22 of the orders made 26 February 2015 pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar of the Melbourne Registry of this Court be appointed to sign such document upon the father filing an affidavit annexing the document to be signed, proof of the request that the mother sign that document and deposing to the mother’s failure to sign said document.

IT IS FURTHER ORDERED THAT:

1. By 4.00 pm on 14 July 2015 the father file and serve any amended application in a case and any affidavit in support in relation to the information contained in the “…” blog.

2. By 4.00pm on 21 July 2015 the mother file and serve any response and any affidavit in reply to the father’s affidavit.

3. The father’s application in a case filed 26 May 2015 be adjourned for mention before Justice Macmillan at 9.00 am on 28 July 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ortona & Peters (No 3) 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 8590  of 2012

Mr Ortona

Applicant

And

Ms Peters

Respondent

REASONS FOR JUDGMENT

1. In this matter I have before me the father’s Application in a Case filed 26 May 2015 seeking enforcement of orders for property settlement made by consent on 26 February 2015 by Thornton J, and in particular paragraph 22 of those orders, which provided for the sale of the property at F Street, Suburb D and the two garages at 1 and 2 G Street, Suburb D.  Those orders also provided in paragraph 24 that:

   In relation to the conduct of the sale:

   (a)the selling agent shall be as agreed between the parties and failing agreement to be determined by the President of the Real Estate Institute of Victoria; and

   (b)the terms and conditions of the sale including the method of sale, reserve price and settlement periods shall be as agreed between the parties and failing agreement as determined by the selling agent.

2. The mother has filed a Notice of Appeal from the orders of Thornton J, including the order the father seeks to enforce, and that appeal is pending.  She has also sought a stay of the final orders made by Thornton J on 26 February 2015, including the order the subject of these proceedings, and that application was dismissed.  The husband on 30 March 2015 sent a letter the president of the Real Estate Institute of Victoria (“the REIV”) attaching a copy of the orders and asking the president to determine the selling agent for the purposes of giving effect to those orders.  There is an email attaching a copy of that letter, which was sent to the mother at … and … that same day. 

3. On 1 April 2015 a letter was sent to the mother and copied to the father confirming that a letter had been received from the father requesting that the President of the REIV appoint an agent to market and sell the relevant properties in accordance with paragraph 24(a) of the orders made 24 February 2015 and advising that they awaited the mother’s confirmation that there has been no agreement between the parties and accordingly the president of the REIV is to appoint an agent to market and sell the above properties.  In response to that letter the mother replied to Ms ZZ. from the REIV by email on 1 April 2015 and copied that to the father saying as follows:

   [Ms ZZ]
   An appeal has been lodged on the 26th of March 2015 and at present I am about to put in an application to stay the orders. 
   [Mr Ortona] has been made well aware of this. 
   Furthermore, this is not my address provided to you.
   Thank you.

   [Ms Peters].

4. As I have previously indicated, the mother has appealed the final orders made 26 February 2015 and did apply for a stay, but that stay was not granted.  The mother appeared in person today.  She said that she had not been able to open the documents that had been emailed to her on three occasions by the father until the night before the hearing.  He had also sent those documents to the mother at the address that he has been given by the mother by registered mail however, those documents were not collected by the mother. 

5. The proceedings before me are of limited ambit, and accordingly I gave the mother some time to again read the documents filed by the father so that she could respond to that application and tell me why it was that she opposed that application.  Although the mother made some submissions, they were not directed to the issue that I must determine and comprised primarily her submissions with respect to the fact that there was an appeal pending and that there were issues with selling the property because of the workmanship.  I think her complaint is against the work that the father has done with respect to that property.  None of that really addresses the fact that there is an order for sale and somewhat surprisingly, given that the order for sale was by consent,  there is an appeal and a stay has not been granted. 

6. Although it appears to be clear there is no agreement as to the selling agent I am satisfied that in all of the circumstances the father is entitled to proceed to with the sale giving effect to the orders and that it is appropriate to make the orders he seeks with respect to the mother signing the authority and any other documents she may be required to sign with respect to the sale of the properties. As the mother did not return to Court after I gave her the opportunity to read the material, it is not possible for me to pursue with her any further her reasons for not making that order; having left the Court building, the matter is now essentially undefended. 

7. Even though the mother says she only received the documents late yesterday, the affidavit is not complicated, and the mother would have had an opportunity, had she chosen, to take that opportunity to address the Court specifically with respect to the issues in this application.  In all the circumstances I propose to make the orders the father seeks. 

8. It, however, has also been brought to my attention that the mother has been using a blog to express her views about the Family Court and her proceedings and perhaps proceedings generally.  Whilst clearly parties are entitled to express their views, there are two issues with respect to her doing so which are of some concern.  The first is that, to the extent that the children are exposed to this information, that may well impinge on their welfare.  The other issue which is of concern is that that blog suggests that the author, who the father says is the mother but she may say otherwise, has recorded a conversation that took place between a Registrar of this Court and the writer. 

9. The mother was not here when this information was raised by the father, and she should have an opportunity to respond to it.  The way in which the material is written would appear not to be generally in the first person, so it may well be that the mother says she is not the author of that material.  She should have an opportunity to respond to that material, so I propose to require the father to file an affidavit setting out the circumstances in which he has become aware of this material and what, if any, information may have been distributed that might impact on the children’s welfare, and I will then adjourn the matter so that the mother can respond. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 July 2015.

Associate: 

Date:  30 July 2015