Picken and Picken (No. 6)

[2008] FamCA 1009

FAMILY COURT OF AUSTRALIA

PICKEN & PICKEN (NO. 6) [2008] FamCA 1009

FAMILY LAW – WARRANTS – Warrant of Possession – Application by Intervenor/Trustee – Stay of Warrant pending sale of home – wife to provide vacant possession of home

Family Law Act 1975 (Cth)

APPLICANT: Ms Picken

RESPONDENT: Mr Picken

INDEPENDENT CHILDREN’S LAWYER

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

FILE NUMBER: MLF 503 of 2005

DATE DELIVERED: 18 NOVEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 NOVEMBER 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 INDEPENDENT CHILDREN’S LAWYER: MS BOYMAL

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VICTORIA LEGAL AID

COUNSEL FOR THE INTERVENOR: MR NOTTAS

SOLICITOR FOR THE INTERVENOR: HUTCHINSON LEGAL

ORDERS

IT IS ORDERED:

1. THAT the further hearing of the application in a case filed by the Intervenor on 9 September 2008 be adjourned for mention and case management before Young J on 23 February 2009.

2. THAT pursuant to s106A of the Family Law Act 1975 a Registrar of the Family Court of Australia, Melbourne Registry, be appointed and authorised to execute any document, contract or transfer of or incidental to the listing, sale or settlement of the property situate at E in the State of Victoria (“the home”) in the name of the husband and/or the wife as may be required and further to do all acts and things necessary to give validity and operation to the orders of the Court pronounced 20 February 2008 and this day.

3. THAT the husband, as registered proprietor on title of the home, sign all documents and comply with all reasonable and proper directions of the Intervenor to effect a sale and settlement of the home and further that he not return to live in the home prior to its sale and settlement thereof.

4. THAT paragraph 3 of the orders pronounced 20 February 2008 be amended so that the obligation upon the Intervenor to obtain the best market price is on the basis that the wife remains in occupation of the home pending its sale and there is to be no further sum of money expended on the preparation or presentation of the home for sale, save otherwise as the husband and wife may immediately agree or as the Intervenor in its discretion may determine appropriate.

5. THAT the wife vacate the home and remove all of her chattels and possessions therefrom and deliver up vacant possession of the home to the Intervenor no less than twenty-one (21) days prior to the date scheduled for the settlement of its sale.

6. THAT as a further condition of sale of the home the Intervenor obtain from the purchaser(s) a deposit sum of no less than ten per centum (10%) of the purchase price of the home.

7. THAT subject to the sale price of the home or further order of the Court the Intervenor do all acts and things and use its best endeavours to request of and to obtain from the purchaser(s) and thereafter have released to the wife, as a partial settlement of her property entitlement pursuant to Orders of this Court, a sum equal to fifty per centum (50%) of the deposit sum being no greater than 10% of the sale price paid by the purchaser(s).

8. THAT pursuant to Family Law Rule 20.54 a Warrant of Possession issue in the form of the document annexed to this Order but that execution thereof be stayed until a date twenty-one (21) days prior to the scheduled date of settlement of the home.

9. THAT the Intervenor advise the Marshal of the Family Court of the date of sale and all relevant particulars of the contract so as to enable proper notification and action if required pursuant to the Warrant of Possession.

10. THAT the costs of the Intervenor of and incidental to his appearance at Court this day be reserved.

11. RESERVE liberty to all parties to apply on written notification and documentation to the Court on any matter of urgency that may arise of and concerning the auction, sale or settlement of the home.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the Independent Children’s Lawyer and solicitor appearing as Counsel for the Intervenor.

IT IS ORDERED:

1. THAT pursuant to Rule 20.54 of the Family Law Rules 204, a Warrant of Possession issue forthwith in the following form:

   To the Marshal of the Court, to all officers of the Police Force of the State of Victoria, whereby an Order of this Court made on 20 February 2008 and varied by Order made 18 November 2008 it was ordered that the wife [MS PICKEN] must vacate the premises situate at and known as [E Property], in the State of Victoria (“the home”) no less than twenty-one (21) days prior to the date scheduled for the settlement of its sale and if she has failed to comply with the said Orders, YOU ARE HEREBY DIRECTED for the purpose of giving effect to the said Orders at such time and with such assistance as you may require and, if necessary by force, to enter upon the home and to remove and evict the wife and her chattels and possessions therefrom and to then deliver up to the Intervenor vacant possession of the home.

IT IS NOTED:

THAT Family Law Rule 20.54 provides that:

A.THAT an order for the possession of real property may be enforced by a Warrant for Possession only if the respondent has had at least seven (7) days notice of the order to be enforced before the Warrant is issued.

B.THAT a court may issue a Warrant for Possession authorising an enforcement officer to enter the real property described in the Warrant and give possession of the real property to the person entitled to possession.

C.THAT if a person other than the respondent occupies land under a lease or written tenancy agreement, a Warrant for Possession may be issued only if the court gives permission.

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

MS PICKEN

Applicant

And

MR PICKEN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

And

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

REASONS FOR JUDGMENT

1. The matter of Picken is again before me.  The husband and wife each appear in person, Ms Boymal of counsel appears for the Independent Children's Lawyer and Mr Nottas appears on behalf of the trustee, Mr P, of the wife's estate in bankruptcy.  This judgment is delivered ex tempore after receiving lengthy submissions on the issues surrounding the application for the Warrant of Possession and generally financial and property matters.  I will then stand down the matter generally for discussions between the parents and the Independent Children’s Lawyer on the remaining children’s issues.

2. The matter was last before me on 21 October 2008.  On that occasion, orders were made for the wife to vacate the property at E, on or before Tuesday, 11 November 2008, and leave that property in a reasonably clean and tidy condition.  The wife has failed to vacate the E property.  She was further required to remove all of her furniture, chattels and personal possessions but likewise has failed to comply with the order in that regard.

3. Prior to that date, the matter had been before me on 2 October 2008 and I had made the orders identified in my extempore judgment that day.  It is clear from both of those most recent orders and the comprehensive extempore reasons for judgment that I acted with what I regard to be care and caution for the situation of the wife and more particularly to ensure that she was fully and carefully aware of her obligations.

4. As on 2 October 2008 I had suspended the operation of earlier orders, I made further order for the wife to again vacate the property at E on 21 October 2008 and to give her a reasonable time so to do.  The purpose of her vacating the property was to have the orders of the court for a sale of the property enforced in the most financially responsible manner.  

5. The final property orders in this case were made on 20 February 2008.  They were orders made by consent and they provided for a sale of the property at E altogether out of court.  For the purposes of sale, the intervener was to have control and to appoint the selling agent and the listing price and they were to use their best endeavours to obtain the best market price.

6. The proceeds of sale were to meet the costs, expenses and other outgoings and for the intervener to hold $450,000 to pay out the previous orders made against the wife and all costs, with the balance of that money payable to the wife.

7. Ultimately, and as provided for in the order, any remaining balance was to be paid to the husband, subject to payment of capital gains tax or arrears of land tax or other taxes, costs or interest thereon.

8. Pursuant to paragraph 5 of those orders, the wife was to have the right to occupy the property pending sale and the other applicable orders were set forth in that paragraph.

9. The balance of the property orders concerning the properties at A, superannuation and other assets, are dealt with in the balance of those comprehensive final property orders.

10. At the time those property orders were before me, I delivered extempore reasons for judgment.  They are on the court file.  It is important to understand the history of property settlement which is outlined at paragraph 11 of those reasons.  This matter had a financial conference before a Registrar and had previously resolved in that settlement discussion and had been fine-tuned pending the pronouncement of final consent orders before me on 20 February 2008.

11. Mr Nottas has this day referred me to those reasons for judgment which I have reread and which clearly underline the out-of-court opportunity and time that was made available to each of these litigants in person to resolve, amend and/or reconsider the property settlement.

12. The history of this file since those orders were made on 20 February 2008 has seen the matter listed before me on numerous occasions, both on children's issues and on financial property and enforcement issues.  I have delivered various extempore judgments and made orders, including on 20 June 2008, 9 September 2008, 2 October 2008 and most recently on 21 October 2008.  I have reread each of those orders and the various reasons for judgment.

13. In these proceedings I am not dealing with issues involving the two children.  Ms Boymal is at court, representing the independent children's lawyer.  I well understand that the children's issues have caused very great concern to the parties, to various professional witnesses and family consultants and medical practitioners and also to the court.  The children at the moment are seemingly settled, living with their father in A and making rapid and meaningful improvement in their life circumstances.

14. What I propose to do today is to allow the parties to talk to Ms Boymal out of court and if there can be final children's orders, I will make those orders later in the day. 

15. Otherwise in this matter, and bearing in mind the property and enforcement orders that I intend to pronounce today, I intend to provide a further mention date in this case of 23 February 2009 and I will list all aspects of this case for mention before me on that day.  I am not encouraging any further defended children's matter.  I trust consent orders can be available but 23 February 2009 is some weeks after the resumption of the school year and how the children are settled and how their medical circumstances then are will be better known.  I encourage the husband and wife to work together to have a very appropriate arrangement for the wife to spend time with and communicate to both children and to be fully aware of their circumstances.

16. Returning to the property and enforcement matters, the application before me today is for a warrant of possession to issue to immediately remove and exclude the wife from the E home so as to permit the sale of that property. The specific application is filed 9 September 2008 and is document 109 in the court file. The warrant of possession is sought pursuant to Family Law Rule 20.54 and additionally an order is sought pursuant to section 106A of the Family Law Act for a Registrar to sign any documents in the name of the wife or otherwise required to give effect to the sale of the property as provided for in my orders of 20 February 2008.

17. In support of that application, the intervener, Mr P, filed a substantial affidavit on that same date and with many annexures thereto.  That document highlighted the proposed manner of sale and touched upon issues of the condition of the property, the method of selling the property and the frustration that was allegedly experienced by the trustee and by agents in trying to obtain vacant possession of the property.  There are filed with the court various affidavits of service and evidence of registered post and notification to the wife. 

18. I observe that the wife has at all times appeared in court.  I am satisfied as to her knowledge of the case and of the applications before the court.  Certainly there is no issue that at least seven days' notice of the order to be enforced has been made known to the wife.  Each of the various interim hearings have dealt with that issue.  It is proper to emphasise that the orders for property settlement were consent orders.  They have not been the subject of any appeal.  They remain before the court, though I do record the complaints that have been made to me from the bar table by both the husband and wife about various firms of solicitors, the legal process, the level of the costs charged to each of them, the alleged concern over the solicitors' debts that were the subject of the ultimate bankruptcy of the wife and her desire to continue to want to challenge those debts and the judgments obtained in another court.

19. I have endeavoured, perhaps without success, to explain to both the husband and wife that they are matters that they should have dealt with long ago in another court or in another tribunal or by other means.  What is before me is consent orders for the sale of a property made long ago which need to be enforced.

20. I have permitted the wife this day to file another affidavit.  It is a very lengthy affidavit with many exhibits.  Unfortunately it really does not deal with the issues before the court.  It is a litany of complaint of previous solicitors' dealings, of costs and charges, of issues concerning the children and medical reports and of course emphasising the very real financial circumstances in which the wife finds herself.  I accept that she is in a difficult situation.

21. The bottom line of this case is that the property should have been sold at least six months ago.  The wife has remained in occupation.  There has been uncertainty as to the husband's original attitude to the wife remaining in occupation pending sale and it is certainly clear that initially he supported the requirement for her to be removed from the property. 

22. As at the last two interim hearings in October and again today, the husband has clearly reconsidered his position and he now asks for the wife to be allowed to remain in possession of the home pending its sale.  I give significant weight to that submission of the husband and I accept he clearly understands that the wife's continued occupation may jeopardise both the sale process and, more particularly, the dollar value that might be achieved on sale.

23. Previously, I have had submissions from the bar table and direct observations of the property in its current state conveyed to me that it is in need of urgent repair and renovation.  There are said to be holes in plastered walls, the carpet is unkempt, the property is generally not well presented. 

24. I accept that at all times, the trustee has been looking to obtain vacant possession, to spend money on the property and to sell by auction with vacant possession at the time of inspection and sale.  The reality is that the parties, the husband and wife, do not want further money spent on the property.  They each asked the court to sell the property in its current state of repair which has been brought about by one or both of them.  The benefit of that is that it may save expenditure of many tens of thousands of dollars which may ultimately be available for distribution to the husband and wife or at least to the wife in the priority on which the property order was negotiated.

25. I do not have specific evidence now before me of the value of this property today.  There is evidence that it has fallen in value and whereas earlier this year it was said to be valued in excess of $500,000, the current estimate from Hocking Stuart, annexed to an affidavit of Mr P, filed 21 October 2008, is in the range of $470,000 to $490,000. 

26. Ultimately, because of both world and local economic conditions and the difficulty of obtaining credit, it may be wholly uncertain as to at what sum this property may sell.  The parties, I am satisfied, well and truly understand that they are at the risk of the real estate market.

27. Pursuant to the property orders, I emphasise that the intervener was to use his best endeavours to ensure the best market price and that was expressed in paragraph 3 of the property orders.  That of course must be read in the light of the current property market, the availability of credit purchases, the condition of the property, the delay in selling the property, the wife's ongoing occupancy of the property without vacating same and generally the limitation on marketing the property that is presented in all circumstances.  To that extent, it is appropriate for paragraph 3 of those orders of 20 February 2008 to be meaningfully read in the context of all of these qualifications. 

28. One of the orders sought by the intervener is pursuant to section 106A of the Family Law Act, that is, for a Registrar to be appointed to sign all documents of and concerning the listing for sale and sale and settlement of sale for or on behalf of the husband and the wife. In the circumstances, of this case, that is a very valid request and I will make an order pursuant to that section. It should have the ability to save the parties money. This house must be sold, although I am still uncertain whether that reality has fully dawned on the husband and wife. I again emphasise, by their actions and delay, they have cost themselves a considerable sum of money.

29. The husband is the sole registered proprietor of the E home.  Pursuant to the 20 February 2008 order he is to co-operate in all ways with the intervenor and facilitate the sale of the property.  I am content if he actually signs documents in a timely manner as and when required but I conclude it is appropriate to extend the order for the Registrar to sign to specifically include the interests of the husband.

30. On every other hearing date, the court has had available to the wife a Mandarin‑speaking interpreter.  On numerous past occasions the wife has indicated to me that such an interpreter was not necessary.  Today unfortunately it would seem that the booking of the interpreter failed and there is no interpreter at court.  Nevertheless, the wife does speak English.  She has addressed me in the English language.  She has responded to questions.  I am satisfied that she knows what has been said in court and has responded to questions from myself.  She has not been disadvantaged.

31. I observe that the wife has filed a further affidavit today and whilst she signs her name in Mandarin characters, the document is sworn without an interpreter, is prepared in the English language, as all other affidavits of the wife have been, and there is no injustice occasioned to the wife by proceeding with this matter today.  The option would have been an adjournment at the further legal cost and expense of the husband and wife.  I am conscious that the husband comes from A, a town in central Victoria and has little money.  Otherwise, there are two legal practitioners in court and their costs would have been thrown away and there would be further legal costs.  On balance, I am satisfied there is absolutely no injustice caused by proceeding with this matter. What I intend to do is a balance between the orders sought by the intervener and the requests of the husband and wife.  This property must be sold and that option process is to start as soon as practicable and ideally that means within the week.  The current orders provide for the intervener to have control to appoint the real estate agent and determine the listing price and those orders continue in full force and effect.

1. What I propose to do is to prepare, issue but then stay a warrant in possession, so that the wife must vacate the property 21 days prior to the settlement date.  What I encourage, but there are difficulties in formulating such an order, will be for a proportion of the deposit price paid, that is, of the 10 per cent deposit price, to be released to the wife 21 days prior to settlement so that she can rent or live somewhere, be it in the interim in a motel or a flat or wherever.  She will have to make those arrangements.  I understand such an order is dependent upon the purchasers agreeing to release the deposit and I do not know who the purchasers are and will not make a generic order requiring the purchaser to release the money.  That will be a matter of negotiation by the intervener and the real estate agent, though I am confident that the legal practitioner appearing for the intervener today fully understands the benefit of the release of 50 per cent of the deposit moneys up to a maximum of 10% of the purchase price to the wife.

2. The overall financial context of this case is that this property may well bring a sum of between $450,000 and a slightly higher figure.  The real estate agents clearly have an obligation to obtain the best available price.  The debts owing pursuant to the proven bankruptcy judgments against the wife and costs may total up to $250,000.  One of the reasons I am prepared to allow the wife to remain in occupation during the sale process is that there is sufficient financial protection to ensure the intervener obtains enough money to pay out the judgment debts and costs. 

3. The way the parties carefully constructed the property orders was that the wife is to receive a sum of money between the total costs and debts of the intervener and an upper figure of $450,000.  The wife therefore has every interest in minimising the costs of the intervener, though to date the matter keeps returning to court and the wife has refused to comply with court orders and therefore has greatly increased her costs.

4. Under the orders, the husband was to receive any sum of money above $450,000 and subject to other payments and taxes, costs and expenses as contained within the orders.  He has previously indicated to me that he may forgo any such payment but I am not changing the current property orders.

5. What I emphasise is there is, on my reading of the orders and my understanding of the evidence, almost certainty that there will be a sale price sufficient to pay out the judgment debts and costs.  The real issue is how much money ultimately does the wife see and that will be an arithmetic exercise to be conducted by the intervener.

6. I have before me the requirements for issuing a warrant of possession pursuant to Rule 20.54 of the Family Law Rules.  I will subsequently prepare and forward to the parties and to the marshal of the court a copy of that warrant of possession.  It will provide for the wife to vacate the property 21 days prior to the settlement date which will be fixed on the sale of the property.  There is of course some uncertainty as to whether this property will sell on a 30‑day, 60-day, 90-day or whatever basis, so the order will simply provide and direct the wife to vacate 21 days prior to settlement.

7. In conjunction with that, the intervener will use their best endeavours to pay 50 per cent of the 10% of purchase deposit money to the wife for the purposes previously outlined, but again with the qualification that it may well require the consent of the purchaser which I will not now order.

8. I will have these reasons transcribed, placed upon the court file and made available to the parties.

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

………………………………………………………..
Associate: