Pelagia and Pelagia

[2016] FamCA 569

FAMILY COURT OF AUSTRALIA

PELAGIA & PELAGIA [2016] FamCA 569

FAMILY LAW – ENFORCEMENT – Application for a s 106A order – where the wife seeks to enforce a transfer of land pursuant to consent orders made in 2007 – where the wife is unable to contact the husband – where the wife has attempted to obtain the husband’s consent to the transfer – orders made as sought by the wife

Family Law Act 1975 (Cth), s 106A

APPLICANT: Ms Pelagia

RESPONDENT: Mr Pelagia

FILE NUMBER: MLC 1491 of 2016

DATE DELIVERED: 3 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 3 June 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

Orders

1. That pursuant to s 106A of the Family Law Act 1975 a Registrar of the Court is authorised to execute a transfer of land in the name of the husband to effect a transfer of the property situate at and known as B Street, Suburb A to the wife pursuant to Order 1(a) of the Orders dated 21 March 2007.

2. That the wife’s Application in a Case filed 23 February 2016 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 Pelagia & Pelagia 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 1491 of 2016

Ms Pelagia

Applicant

And

Mr Pelagia

Respondent

REASONS FOR JUDGMENT

1. The matter of Pelagia comes before me today upon the Application in a Case of the wife filed 23 February 2016.  That application is supported by the wife’s affidavit, also filed 23 February 2016.  Originally the matter was listed before me in the Judicial Duty List on 4 May 2016.  That day I adjourned the matter due to concerns that I had that there needed to be further efforts to attempt service of the documents upon the husband.  To that end, I made orders requiring that the wife cause a copy of her application, affidavit and my orders to be served by way of substituted service upon the husband’s former solicitor, Mr C of D Legal.

2. In compliance with my orders, the wife filed an affidavit of service on 20 May 2016.  That affidavit confirms that Mr C was served by registered post with the documents relied upon by the wife, together with my orders of 4 May 2016. 

3. On 26 May 2016, Mr C forwarded a letter to the Court indicating and confirming that he had been served with the wife’s application and affidavit.  He indicated in that correspondence that he was unable to obtain instructions from the husband who, he believes, is living in a village in Europe.

4. He also confirmed in that correspondence that his records disclose that, in compliance with orders made on 29 March 2007,  the husband had previously executed a transfer of land in respect of the property at Suburb A and that that transfer of land was forwarded to the wife’s former solicitors.  In the penultimate paragraph of a letter forwarded to the wife on 26 May 2016, Mr C states:-

   So that there is no misunderstanding, my client’s position has always been that he has provided to you all that he was required to do under the property settlement that was achieved at the Family Court back in 2007 and that all documents, including a transfer and requisite authorities were delivered to your solicitors.

5. The conundrum for the wife, however is that, notwithstanding those indications, the position today is that the parties remain joint owners of a property in Suburb A. That is notwithstanding the orders made by consent between them on 21 March 2007, which provided that there should be a transfer of the property at B Street, Suburb A to the wife and that the husband do all acts and things to affect such transfer.

6. The application before me today is that I make an order that, pursuant to s 106A of the Act, a Registrar of the Court sign the necessary transfer of land to give effect to the consent orders.

7. In support of that application, the wife in her affidavit sets out the history of the parties. She notes at paragraph 9 the making of the final property orders and  she confirms at paragraph 11 of her affidavit that, in compliance with those orders, she transferred to the husband her interest in a property in Suburb E.  She also sets out in detail her efforts to try to contact the husband in order to have him complete a transfer of land.  She notes at paragraph 15 of her affidavit that on 10 July 2014, the parties’ son sent an email to the husband’s former solicitors. 

8. The matter has been made more difficult for the wife as a result of her former solicitors ceasing to conduct a legal practice.  At paragraph 17, she notes that it is her understanding that that firm closed and ceased operation in about January 2008, which is a period of some nine months after the final property orders were made.

9. Communications had been made with a former partner of that firm in an endeavour to ascertain the whereabouts of the file and also to ascertain the whereabouts of a transfer to land said to have been signed by the husband.  The communication from the partner of that firm, which is a communication dated 11 July 2014, indicates that the file was closed and is unable to be located, and, therefore, it is uncertain as to the whereabouts of a transfer of land.

10. It is clear from the correspondence from the husband’s former solicitors that, in fact, a transfer of land has previously been executed by the husband.  The reality is that the whereabouts of that transfer of land is unknown.  It is also clear from the communication from the husband’s lawyers that the husband’s intention and instructions when last communicating with him, was that he sought to give affect to the final property orders.

11. Having regard to the history, and in circumstances where all efforts have been made to try to communicate with the husband, and to obtain his consent to orders, I am satisfied that it is appropriate that an order be made pursuant to s 106A of the Family Law Act 1975 (Cth).

12. The wife has confirmed in her affidavit her efforts to communicate with the husband, to communicate with his former solicitor and also with her own former solicitor.  She has confirmed to me this day that she continues to be unaware as to the husband’s current address.  She has further confirmed that the adult children of the marriage also have no knowledge of the husband’s current whereabouts.

13. In the circumstances, I am satisfied that it is appropriate that a Registrar of the Court be required and requested to execute a transfer of land in the husband’s name in order to give effect to the final property orders that were made in March 2007.

    ORDERS DELIVERED

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 June 2016.

Associate:

Date:  3 June 2016