Polikin and Polikin

[2017] FamCA 236

FAMILY COURT OF AUSTRALIA

POLIKIN & POLIKIN [2017] FamCA 236

FAMILY LAW – PROPERTY – Enforcement – Where orders are made dispensing with service of the husband’s Application on the wife in circumstances where he has had no communication with her for about 10 years and is not aware of her whereabouts – Where the husband seeks orders discharging certain orders made in November 2002 to enable to him a sell a property – Where orders are made allowing the husband to dispose of that property in circumstances where the wife has not been able to be contacted since the orders were made in November 2002 and she has made no attempts to collect the money owing to her by the husband pursuant to those orders – Whether a declaration should be made that the wife’s claim to the sum owing to her is now statute barred – Where the wife’s claim is not found to be statute barred in circumstances where there is no evidence that the husband provided a copy of the November 2002 orders to the wife – Where orders are made in the alternative for the husband to deposit the sum owing to the wife with the NSW Trustee and Guardian for payment to the wife should she make a claim.

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Limitation Act 1969 (NSW)

Barrak and Ors & Barakat (2005) FLC 93-234

Olsen v Olsen (2012) 48 Fam LR 226

APPLICANT: Mr Polikin

RESPONDENT: Ms Polikin

FILE NUMBER: SYC 8137 of 2016

DATE DELIVERED: 18 April 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 6 April 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: GRG Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance for or on behalf of the Respondent Wife

Orders

1. Service of the husband’s Initiating Application filed 8 December 2016 be dispensed with.

2. Order 4 of the orders made 1 November 2002 in proceedings SYF 8054 of 2000 (being an order requiring the husband to pay the wife within six months the sum of $91,600) be discharged.

3. Order 5 of the orders made 1 November 2002 in proceedings SYF 8054 of 2000 (restraining the husband from encumbering, selling or dealing with a property at B Street, Suburb C (“the Suburb C property”)) be discharged.

4. A declaration is made that the husband is entitled to have the Order of Court registered as Dealing No. … on the title to the property known as B Street, Suburb C, Certificate of Title Volume … Folio … and being the whole of the land contained in Folio Identifier …, removed by the Registrar of Land and Property Information New South Wales.

5. The husband, upon the settlement of the sale of the Suburb C property, pay to the NSW Trustee and Guardian (“the Trustee and Guardian”) the sum of $91,600 with the intent that the Trustee and Guardian would hold those funds on trust for the wife.

6. The husband, upon making the payment referred to in order 5, is to provide the Trustee and Guardian with a copy of these Orders and Reasons for Judgment.

7. The husband tell and the husband encourage his daughter Ms D to tell, the wife or his daughter Ms E if either makes contact, that money has been lodged on the wife’s behalf, with the Trustee and Guardian.

8. The husband is to provide the Trustee and Guardian from time to time with any information he has about the whereabouts of the wife or his daughter Ms E and to use his best endeavours to ensure that his daughter Ms D also informs the Trustee and Guardian from time to time of any information that she has about the whereabouts or contact details for her mother or her sister Ms E.

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 Polikin & Polikin 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 SYDNEY

FILE NUMBER: SYC 8137  of 2016

Mr Polikin

Applicant

And

Ms Polikin

Respondent

REASONS FOR JUDGMENT

1. By way of Initiating Application filed 8 December 2016, the husband seeks:

   1.1.That service of the Application upon the wife be dispensed with and that the matter proceed in her absence;

   1.2.That an order made on 1 November 2002 requiring the husband pay the wife within six months the sum of $91,600 be discharged;

   1.3.That an order charging a property at B Street, Suburb C (“the Suburb C property”) with the sum of $91,600 to the wife be discharged;

   1.4.A declaration that the husband is entitled to remove from the title of the Suburb C property the order of the court of registering the charge;

   1.5.A declaration that any action by the wife to enforce the order for the payment of the sum of $91,600 made 1 November 2002 is statute barred.

2. The husband was born in 1947.  The wife was born in 1960.

3. The parties were married in 1980.

4. There were two children of the marriage, Ms D born in 1987 and Ms E born in 1988.

5. The parties separated in May 2000.

6. In July 2000 the wife and the child Ms E left Australia and commenced residing in the United States.

ORDERS OF 1 NOVEMBER 2002

1. On 1 November 2002 an undefended hearing took place in the Family Court of Australia in Sydney before Judicial Registrar Johnston (as his Honour then was) and final orders were made under s 79 Family Law Act 1975 (Cth) (“the Act”).

2. The orders of 1 November 2002 require the wife to transfer to the husband her right, title and interest in four pieces of real estate (order 1.1); for the husband to indemnify the wife in relation to any liability that might be associated with any of those properties (order 1.2) and for the husband to be declared to have sole right, title and interest in relation to personal properties which he currently then had in his possession or control (order 1.3) and declared solely entitled to his superannuation interests (order 1.4). The husband was also ordered to have sole parental responsibility for the care of Ms D. A further order was made that within six months the husband pay to the wife the sum of $111,600 by way of property settlement (order 3). There was however a further order made that the wife pay the husband’s costs of $20,000 (order 9). The court made an order in the following terms (order 4):

   That the property known as [B Street, Suburb C] Certificate of Title Volume … Folio … be charged with payment by the husband to the wife within six months of the sum of $91,600.

3. An order was made restraining the husband from encumbering, selling or dealing in any way with the Suburb C property (except for the purpose of raising the funds necessary to make the payment referred to in the orders), which restraint would cease once the payment was made (order 5). An order was made pursuant to s 106A(1) of the Act (order 6).

4. Orders 7 and 8 were in the following terms:

   7. That orders 1, 3, 4, 5 and 6 of these orders not commence operation until the expiration of 28 days after the day of posting to the wife by airmail to her usual address a sealed copy of these orders.

   8. That the wife is given leave to re-list these proceedings at her risk in relation to costs for the purposes of seeking further orders of the Court at any time until the expiration of the 28 day period referred to above.

5. On 24 May 2004 the husband’s solicitors, by way of registered dealing on the title to the Suburb C property, effectively registered a copy of the orders made 1 November 2002.

THE HUSBAND’S KNOWLEDGE ABOUT THE WHEREABOUTS OF THE WIFE

1. The husband alleges that all communication with the wife was lost in 2007. She has never done anything to attempt to collect the money pursuant to the orders of 1 November 2002.

2. The husband relies on an affidavit filed 8 December 2016 and an affidavit from his daughter Ms D filed 20 March 2017. The husband deposes to the fact that on 1 November 2002 when the orders were made, the wife to the best of his knowledge, information and belief was already residing in the United States. He says that he was not at that time nor has he been at any time since, aware of the whereabouts of the wife so as to enable him to arrange for service of any documents upon her.

3. The husband says to the best of his knowledge the wife left Australia and travelled to the United States in July 2000 taking Ms E with her. Ms E was at that time 11 ½ years of age. Ms D had a telephone conversation with her mother in July 2000. It appears from the description of what Ms D heard of that telephone conversation that the wife was probably in City F at that time. The husband says that for some years after July 2000, Ms D maintained contact with her mother by telephone. The wife had on more than one occasion invited Ms D to go to the United States but she declined. The husband says the last time Ms D spoke to her mother was when she was about 19 (10 years ago).

4. The husband says that over the years he has spoken to his daughter Ms E on several occasions when she has telephoned him. Whilst she was prepared to confirm she was in the United States, she was not prepared to provide an address so that he could forward cards or letters. The husband says he has not received a telephone call from Ms E for several years.

5. The husband says that in July 2000 he engaged an investigator in the United States and informed the investigator of the address that he had had for the maternal grandmother in the suburb of G, City F. The report he received from the investigator was that those premises were empty.

6. To the best of the husband’s knowledge, the wife has never come back to Australia. I accept the husband does not currently have any telephone number or address for either the wife or his daughter Ms E in the United States.

7. The husband’s evidence is corroborated by an affidavit by Ms D who confirms that the last occasion she spoke to the wife was about 10 years ago. She says that during 2014 her mother tried to contact her by email (an email address that was known to Ms E). Ms D says she did not reply. She said that she then tried to contact her sister Ms E through Facebook on a few occasions but Ms E did not reply. She has had no contact with her mother or her sister since 2014 and does not currently have any telephone number, address or any social media contact details for either her mother or her sister Ms E.

8. I am satisfied on the evidence that there is no effective way of attempting to serve court documents on the wife in these proceedings. Accordingly I dispense with service upon the wife of the husband’s Application filed 8 December 2016.

ORDERS SOUGHT

1. The husband wishes to sell the Suburb C property. The order of the court made 1 November 2002 is currently registered on the title to that property. The husband needs the assistance of the court to effect the removal of the registration of the dealings so he can sell the property. The husband submits, and I accept, that the orders sought to discharge the restraining order and to effect a removal of that order from the title of the Suburb C property are consequential or machinery orders and that I have power to make those orders.

2. Given that the wife has not been able to be contacted since the orders were made in 2002 nor has she made any attempt to contact the husband herself, it is appropriate to make orders that would allow the husband to dispose of the Suburb C property with the only remaining question being whether or not a declaration is made that the wife’s claim to the sum that was ordered to be paid to her on 1 November 2002 is now statute barred (and if it is, whether or not a declaration should be made to that effect).

LIMITATION ARGUMENT

1. There is no Commonwealth legislation applicable to orders made under the Act.

2. Pursuant to s 79 of the Judiciary Act 1903 (Cth), the Limitation Act 1969 (NSW) can apply to orders under the Act.

3. Section 79(1) of the Judiciary Act 1903 is in the following terms:

   State or Territory laws to govern where applicable

   (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable

4. The Full Court in Barrak and Ors & Barakat (2005) FLC 93-234 said:

   32. There is no dispute that s 79 of the Judiciary Act1903 (Cth) applies to make the provisions of the Limitation Act potentially relevant to these proceedings.  See Northern Territory of Australia v GPAO (1999) FLC 92-838 at 85,762; (1999) 196 CLR 553 at 575 where Gleeson CJ and Gummow J said:

   “It is clear that, were it not for a provision such as s 79, a law of a State with respect to such matters as the limitation of actions could not directly and of its own force operate in relation to a claim arising under a law of the Commonwealth.”

5. In Olsen v Olsen (2012) 48 Fam LR 226:

   36. … State limitation laws provide a good example of the very type of state law that will be "picked up" by s 79 of the Judiciary Act 1903 (Cth), in the absence of a general federal limitation law, to operate as a "surrogate federal law" in the exercise of federal jurisdiction: Kruger v Commonwealth (1997) 190 CLR 1 at 140; 146 ALR 126 at 217; ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; 177 ALR 329; [2001] HCA 1 at [72]; Commonwealth v Mewett (1997) 191 CLR 471 at 553 – 6; 146 ALR 299 at 350.

6. Section 17 of the Limitation Act 1969 (NSW) is in the following terms:

   (1) An action on a cause of action on a judgment is not maintainable if brought after the expiration of a limitation period of twelve years running from the date on which the judgment first becomes enforceable by the plaintiff or by a person through whom the plaintiff claims.

   (2) A judgment of a court of a place outside New South Wales becomes enforceable for the purposes of this section on the date on which the judgment becomes enforceable in the place where the judgment is given.

   (3) Subsection (2) does not apply to a judgment of a court of the Commonwealth, not being a court of a Territory of the Commonwealth

7. In s 11 of the Limitation Act 1969 (NSW), “judgment” is defined:

   "Judgment" includes not only a judgment of a court of New South Wales but also a judgment of a court of the United Kingdom of Great Britain and Northern Ireland, a court of another State of the Commonwealth, a court of the Commonwealth, a court of a Territory of the Commonwealth, or a court of any other place.

   (Emphasis added)

CONCLUSION

1. The orders of 1 November 2002 are a “judgment” within s 17 of the Limitation Act 1969 (NSW).

2. The husband submits that the limitation period of 12 years expired on the day 12 years after 28 days from the posting to the wife by airmail to her usual address a sealed copy of the orders.

3. The difficulty with that submission is that the husband has not provided any evidence he posted a sealed copy of the orders to the wife by airmail to her usual address. In fact his evidence is that he didn’t know what was the wife’s usual address (apart from assuming she might be able to be reached through her mother).

4. There is no evidence that in the period of time when both the husband and Ms D were having some communication with Ms E that they either sent her a sealed copy of the orders or gave her some notice that the wife was entitled to a payment by the husband of $91,600.

5. In those circumstances, I am unable to find the claim is statute barred.

6. The husband, in the alternative, suggested the court make the orders he seeks together with an order that the husband deposit the sum of $91,600 with the NSW Trustee and Guardian (“the Trustee and Guardian”) for payment out to the wife should she make a claim. I am prepared to adopt that course.

7. I will also make an order that the husband encourage Ms D to provide the wife or Ms E, if either makes contact, with information that that money has been lodged on the wife’s behalf with the Trustee and Guardian. The husband and Ms D are from time to time to inform the Trustee and Guardian of any information they receive in relation to the contact details for either the wife or Ms E in the United States of America.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 April 2017.

Associate: 

Date:  18.4.2017