Picken and Picken (No. 5)

[2008] FamCA 902

FAMILY COURT OF AUSTRALIA

PICKEN & PICKEN (NO. 5) [2008] FamCA 902

FAMILY LAW – PROPERTY – Enforcement of property orders – Wife’s trustee in bankruptcy

Family Law Act 1975 (Cth)

APPLICANT: MR PICKEN

RESPONDENT: MS PICKEN

INTERVENOR: MR P (as Trustee in Bankruptcy of the Estate of the Wife)

FILE NUMBER: MLF 503 of 2005

DATE DELIVERED: 21 OCTOBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 21 OCTOBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR: MR NOTTAS

SOLICITOR FOR THE INTERVENOR: HUTCHINSON LEGAL

Orders

IT IS ORDERED:

1. THAT the wife vacate the property situate at and known as E property on or before Tuesday 11 November 2008 and leave the property in a reasonably clean and tidy condition.

2. THAT upon vacating the property the wife remove all of her furniture, chattels and personal possessions but leave all fixtures and fittings within the home.

3. THAT the further hearing of all extant applications or the enforcement of these orders be adjourned for fixture before Young J at 9.30 a.m. on Tuesday 18 November 2008.

4. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

5. THAT leave be granted to the solicitor for the intervenor to file the further affidavit of Mr P sworn 20 October 2008.

6. THAT as soon as practicable and prior to the return hearing date the intervenor comply with the provisions of paragraph 6(a) of the orders pronounced 20 February 2008 and for the purposes of such compliance the husband forthwith deliver up to the intervenor the original or duplicate Certificate of Title to that property in Avoca.

IT IS NOTED

A.THAT the wife has advised the Court that she savings of $3,000 or thereabouts which are currently frozen pursuant to her bankruptcy and, given the equity in the home the solicitor appearing for the intervenor is this day to discuss with them the ability and willingness of the trustee to release this sum to the wife to facilitate her obtaining some form of accommodation pending settlement of the sale of the home.

IT IS NOTED that publication of this judgment under the pseudonym Picken & Picken is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 503 of 2005

MR PICKEN

Applicant

And

MS PICKEN

Respondent

And

MR P (as Trustee in Bankruptcy of the Estate of the Wife)
Intervenor

REASONS FOR JUDGMENT

1. The matter of Picken & Picken and the Trustee in bankruptcy of the estate of the wife returns for further interlocutory hearing before me this day.  The husband appears in person; the wife appears in person and is assisted by a Mandarin-speaking interpreter who has been sworn in by my court officer to well and truly interpret all matters said in court to the wife.  The wife, in any event, does have a more than reasonable knowledge and understanding of the English language.  Mr Nottas, solicitor, again appears as solicitor representing the Trustee in bankruptcy of the wife's estate.  I had previously formally excused the independent children's lawyer from any appearance this day.

2. On 20 February 2008, orders were made by consent pursuant to section 79 of the Family Law Act to resolve all property and financial matters of the parties. At that stage, the wife had already been declared a bankrupt and she was represented by her Trustee. There was, prior to the property orders being resolved out of court, a conciliation conference and settlement was reached. Formal leave to intervene was then given to the wife's Trustee. An order was made that the property at E, be sold and paragraph 3 provided the intervenor to have control to appoint the agent, to fix the listing price and to endeavour to obtain the best market price.

3. The order further provided that the proceeds of sale were to be apportioned pursuant to paragraph 4 so as to pay the costs of, and related to, sale; to discharge encumbrances owing upon the property; and then to pay $450,000 to the intervenor, plus previous costs orders.  As I well then understood, and again it has been explained to me, that $450,000 was intended to cover the costs of the wife's bankrupt estate and costs of enforcement and the Trustee's costs, which may well total now in excess of $200,000.  The balance of the money significantly was to be paid to the wife.  That is, and remains, a matter of crucial importance in this case.

4. Any sum of money over $450,000 and subject to the provisions of that paragraph of the order was then to be available to pay any capital gains tax or other arrears, and thereafter the husband was to receive any net balance.  All of the other orders pronounced by the court that day are contained in the order and at that stage the parties agreed for the wife to have the right to occupy the property, pending sale.  What has occurred is that the wife has remained in possession of the property; the property has not been sold. 

5. The matter has been before me on a number of occasions.  I have had evidence from the Trustee before the court as to the condition of the property, its valuation and proposed mode of sale.  As recently as this morning, I have given leave to the solicitor appearing for the Trustee to file an update affidavit and annexures thereto.  That affidavit is properly prepared and before the court pursuant to my orders dated 2 October 2008, where I required the Trustee to confer with the wife, discuss and negotiate issues of, and related to, her occupation of the property and to obtain a better appraisal of the condition of this property and its market value.  I am satisfied that the Trustee has discharged its responsibilities pursuant to that order.

6. I have carefully read the affidavit of Mr P, the appointed Trustee.  I am satisfied that efforts have been made to discuss with and assist the wife in the context of any borrowing of money, but in her particular circumstances and now given the financial uncertainty surrounding all transactions, on a global basis, it is apparent that the wife cannot access funds, cannot otherwise discharge her debt and the original order for sale of this property made in February of this year must be enforced.  To the extent that the wife then had the right to occupy the property, that right will be discharged and vacant possession is required.  I have also carefully read the evidence surrounding valuation of the property and it is clear that, because of its condition and because of economic conditions, it is likely to have fallen in value and will most certainly now struggle to achieve the $515,000 valuation of May 2008. 

7. I made an order on 9 September 2008, paragraph 8, for the wife to vacate the property on or prior to 29 September 2008 and leave the property in a clean and tidy condition.  Otherwise I made orders to assist the wife in moving her furniture and chattels from the property.  The wife did not comply with that order and did not vacate the property.  She has not moved her furniture and chattels from the property.  The return date of that order was 2 October 2008.  On that occasion, and after listening carefully to the wife, I elected to give her the one further opportunity to confer with the Trustee and to facilitate accommodation elsewhere and the relocation of her chattels.  I delivered an ex tempore judgment on that occasion touching on those matters which were intended to be of some assistance to the wife and I highlight they were made not with the consent of the Trustee.

8. On 2 October 2008, I suspended the operation of paragraph 8 of my earlier order.  That is, I suspended the requirement of the wife to vacate the property.  I did so in the expectation that she would take every opportunity of the extension of time given to her.  This she has failed to do.  I do understand that the wife is in an extremely difficult financial and emotional position.  She cannot borrow money, she has no available accommodation, she is alone in this country and has no-one to help her move, she has no access to funds.  She has no income and cannot service any loan.  These are matters that the wife has highlighted to me on numerous occasions. 

9. I am also aware of her complaint against members of the legal profession.  She was bankrupt by a particular firm of solicitors and supported by an outstanding debt to another individual solicitor who himself has now become bankrupt.  Nevertheless, the wife's debts of her estate in bankruptcy with all costs and other outgoings now exceed $200,000 and can only be paid from the sale of this property.  Again, when given an opportunity to speak, the husband has foreshadowed his complaint against members of the legal profession and his requirement for there to be a police or other high-level inquiry into past financial conduct and professional advice. These are, however, not matters that he or his wife have instigated.  They are not matters over which I have any control, nor would I in any way endorse or be involved, as this court is merely making orders on the evidence and representations made to it. 

10. The Trustee has sought various orders in its application filed 9 September 2008. That application has been adjourned and is before me today. The orders seek in the alternative, pursuant to section 106A of the Family Law Act, for a Registrar to be appointed to sign documents in the name of the wife. They require an order for the wife to vacate the property and then for a warrant of possession to be issued, pursuant to Family Law Rule 20.54, authorising the Marshal of the Family Court or his delegate to enter the property and obtain vacant possession thereof.

11. By reference to that particular Rule, it is clear that an order for possession of real property may be enforced by a warrant of possession, but only if the respondent has had at least seven days notice of the order to be enforced before the warrant is issued.  The particular legal issue that has arisen in this case and to which I have sought a response from the solicitor for the Trustee is that I made the vacation order on 9 September 2008.  For reasons that I outlined, I suspended that order on 2 October 2008.  I am of the view that I need now make a fresh order for the wife to vacate the property at E, an in all of the circumstances of this case, it is proper that I make that order today.

12. That will then enable, on an adjourned hearing date in the very near future, the Trustee to pursue the actions of the marshal to evict the wife from the home and otherwise remove her chattels, contents and possessions.  I am satisfied that, within his area of responsibility, the Trustee has made a genuine effort to discuss matters with the wife; but ultimately his responsibility is not to provide accommodation to the wife, his responsibility is to discharge his legal obligations to sell the home to satisfy the bankrupt estate of the wife.  I have carefully explained those options to the wife with the assistance of the Mandarin-speaking interpreter.  I have explained those matters on many prior occasions to the wife, but there is now a sad reality to this case that, after seven days, the wife may likely be forcibly removed from her home and with nowhere else to go. 

13. I also understand the wife has been in touch with welfare agencies, citizen-help agencies and the like, but no-one can, or will, assist or help.  Again, I do not feel that I can ask the Trustee to do more than they have done.  Finally, as I explained to the wife, she will get moneys returned to her from the sale of the property and more cooperation she shows now, the more the sale price may be, the more she may receive.  Certainly market forces and financial turmoil are working to not assist her outcome and that which she receives in the next few months may be far less than if she had have cooperated, vacated the property and sold six months ago.  What I cannot do is change history.  I make an order to vacate the property and will otherwise adjourn the matter to me on a relatively short return date.

14. I will again, as I have on all prior occasions, have these reasons transcribed, placed on the court file, and they will be available to the parties; or one day to be read in the tragic saga of this matter.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: