Paulus and Scillaci

[2017] FamCA 797

FAMILY COURT OF AUSTRALIA

PAULUS & SCILLACI [2017] FamCA 797

FAMILY LAW – ENFORCEMENT – where property order for provision of a chattel not complied with – where applicant seeks to proceed without notice to respondent – order made.

Family Law Act 1975 (Cth)

APPLICANT: Ms Paulus

RESPONDENT: Mr Scillaci

FILE NUMBER: MLC 1034 of 2017

DATE DELIVERED: 4 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fisken

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyer

THE RESPONDENT: No appearance

Orders

1. The Application in a Case filed 30 August 2017 be determined without notice to the respondent husband pursuant to r. 20.53 of the Family Law Rules 2004 (Cth).

2. Order 2 (i) of the Final Orders made 1 June 2017 be enforced by a warrant, authorising an enforcement officer to seize the chandelier and deliver it to the wife pursuant to r 20.55 of the Family Law Rules 2004 (Cth) – warrant for delivery.

3. The Marshall/Sheriff or his delegate pursuant to s 38P of the Family Law Act 1975 (Cth) be appointed as the enforcement officer.

4. The warrant pursuant to r 20.55 and 20.56 of the Family Law Rules 2004 (Cth) be issued authorising/directing the enforcement officer of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force to do any of the following:

   (a)enter and search any real property:

   (i)     that is the subject of the warrant; or

   (ii)    for the purpose of seizing any property the subject of the warrant;

   (b)if the warrant is for the seizure and sale of real property – enter and eject from the property any person who is not lawfully entitled to be on the property;

   (c)take possession of or secure against interference any property the subject of the warrant;

   (d)remove any property the subject of the warrant from the place where it is found, place it in storage or deliver it to another person or place for a purpose authorised by the warrant.

5. The husband pay the wife’s costs of and incidental to the Application in a Case filed 30 August 2017 fixed in the sum of $7,495.

6. The Application in a Case filed 30 August 2017 be otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paulus & Scillaci has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1034 of 2017

Ms Paulus

Applicant

And

Mr Scillaci

Respondent

REASONS FOR JUDGMENT

1. On 1 June 2017 at a time when both parties were represented before Registrar Sudholz of this Court, orders were made, relevantly, that within 14 days the husband make available for collection by the wife a number of items of chattels.  The relevant one is a chandelier, which is comprehensively described in the orders. 

2. By her application filed on 30 August the wife seeks the enforcement of that order because the husband has failed to comply. 

3. The wife seeks to proceed in this case without notice to the husband. Rule 20.53 of the Family Law Rules provides that a person may apply without notice to enforce orders in relation to obtaining the possession of property by application in a case and an affidavit. That is what the wife has done.

4. The basis, also, to do this without notice is said to be because of the husband’s criminal history.  The wife deposes to the fact that there also intervention order proceedings which have also resulted in an appeal to the County Court.  She gives some details as to her fears about his behaviour and expresses that if he was given notice of the order then he might either dispose of it, damage it or remove it from the location where it is presently stored.

5. This chandelier seems to have been part of a home that the parties owned which was sold in 2016 and, obviously, the chandelier was removed and stored somewhere.  There can be little doubt that on 1 June 2017 everybody knew what they were talking about when they consented to the relevant order.  Arrangements were then made for the wife to fulfil her part of the order by collection.  A removalist was engaged who attended upon the husband and the removalist then advised the wife that the husband said words to the effect of, “If she wants it”, talking about the chandelier, “tell her to take me to court”.

6. That same day the wife received the various chattels from the removalist and discovered that the chandelier was not there.  .

7. Needless to say, we are now in October and the wife still does not have her chandelier.  The rules here are such that she can apply on an ex parte basis and there is no reason for me not to give her the order that she seeks. 

8. Two other issues arise out of the June orders:  one is that she seeks that in the event that the enforcement officer has to seize property and cannot find the chandelier, then he have power to seize all personal property of the husband.  That creates difficulty about what property is to be seized, and, of course, the husband not knowing about it.  Sensibly, that order is not pressed today.  The second issue relates to the question of the costs, having brought this application.

9. In my view, this is a case where the enforcement of the order must take place, notwithstanding my reservations about the course of action the wife is taking.  She seems confident that providing the husband does not know of the likely attendance of the enforcement officer she may get her chandelier back.  I am a bit more pessimistic. 

   ORDERS DELIVERED

   RECORDED  :  NOT TRANSCRIBED

10. The costs – section 117 of the Family Law Act provides that in proceedings under the Act each party shall bear their own costs unless there are circumstances to justify departure from that principle.  Failure to comply with a court order, particularly one to which the party consents, justifies an order for costs and a departure from the principle.

11. Before a court can make an order for costs, however, it must contemplate the matters set out in section 117(2A) of the Act. None of those particular factors has any more importance than any other. In this case the parties have had a property settlement and divided up, not just real property, but also money. It would be hard to say that the husband is impecunious here because he was to receive $675,000 in cash.

12. In addition to matters generally, the husband has failed to comply with the Court order and there are no reasons, in my view, why the public purse, such as Legal Aid, should be seen as relevant. 

13. This is a case where the costs should follow the event.  The costs sought are $7495.  Looking at the scale, they are within the scale.  I will order that the husband pay the wife’s costs fixed in the sum of $7495.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 October 2017.

Associate: 

Date:  9 October 2017