Ravalli and Ravalli

[2019] FamCA 118

FAMILY COURT OF AUSTRALIA

RAVALLI & RAVALLI [2019] FamCA 118

FAMILY LAW – ENFORCEMENT – Where husband failed to sign documents required by final property orders – Where appropriate for an order to be made under section 106A of the Act for a Registrar to sign – Where previous order for indemnity costs – Where appropriate to quantify that order – Where wife entitled to recover costs of removing husband’s possession from the home – Where husband ordered to pay such costs as quantified – Where consideration of general costs rule – Where appropriate that husband to pay costs of present application – Where husband’s liabilities to the wife to be deducted from his property settlement entitlement.

Family Law Act 1975 (Cth) ss 106A, 117

Sohrab & Bahr (2017) FamCA 199

APPLICANT: Ms Ravalli

RESPONDENT: Mr Ravalli

FILE NUMBER: PAC 3326 of 2014

DATE DELIVERED: 19 February 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O

SOLICITOR FOR THE APPLICANT: Maclarens Lawyers

RESPONDENT – SELF-REPRESENTED LITIGANT: Mr Ravalli

Orders

1. The Response filed by the husband on 10 October 2018 be struck out and dismissed.

2. The husband’s oral application for disqualification is dismissed.

3. Pursuant to section 106A of the Family Law Act 1975 a Registrar of the Family Court of Australia at Parramatta is hereby appointed to execute any deed or instrument in the name of MR RAVALLI and do all acts and things necessary to give validity and operation to these instruments and the Court’s Orders made 1 December 2017 but particularly to execute the following documents:

   (a)Transfer for the property referred to in Certificate of Title Volume … Folio … being known as B Street, Suburb C NSW … causing that property to be transferred from the Respondent MR RAVALLI to the Applicant MS RAVALLI;

   (b)National Australia Bank Discharge Authority in respect of mortgage #09.

4. The husband pay the wife’s costs of and incidental to the present Application in the sum of $2,500.00.

5. The husband pay to the wife her costs of and incidental to removal of the husband’s personal possessions from the subject property in the sum of $13,263.98.

6. The quantum of costs ordered to be paid by the husband pursuant to Order 7 made on 21 March 2018 be fixed in the sum of $6,636.00.

7. The wife be entitled to deduct from the sum of $41,330.00 payable to the husband pursuant to the primary orders the total sum of $22,399.00 and that the balance then remaining of $18,931.00 be paid to the Registrar of the Family Court of Australia at Parramatta together with a Notice of Payment into Court and that the Registrar be directed to cause those funds to be paid to the Respondent husband MR RAVALLI.

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 Rivalli & Rivalli 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 PARRAMATTA

FILE NUMBER: PAC 3326 of 2014

Ms Ravalli

Applicant

And

Mr Ravalli

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In these proceedings the applicant wife filed an Application in a Case on 18 September 2018 seeking inter alia:

   a)that she be granted leave to serve short notice of the application on the respondent husband and

   b)that pursuant to order 8 of orders made on 21 May 2018 the registrar of the Family Court be appointed pursuant to section 106A of the Act to execute any deed or instrument in the name of Mr Ravalli to give effect to the orders made 21 May 2018.

2. Further orders were sought at that time for compliance by the parties with orders 4 and 5 made on 1 December 2017 be extended for two months and otherwise the husband pay the wife's costs of and incidental to the application on an indemnity basis.

3. In response to the wife's Application in a Case by way of enforcement the husband filed a Response to that Application in a Case on 30 October 2018.  He sought in that Response orders as follows:

   (1)An inquiry into maladministration and mismanagement of the case.

   (2)Arrest of Mr O, Ms P, Mr Q, Ms R and Ms S.

   (3)Future legal costs of my application with the High Court are the direct responsibility of the law firm and the former wife for imposing malicious litigation.

   (4)Compensation for the entire amount as has been calculated in my letter to the ambassador, which has been served on the former wife and the party.

   (5)Eviction of the former wife from my matrimonial home B Street, Suburb C New South Wales ...

   (6)Dismissal of the case based on law referenced in my affidavit.

4. The orders sought in that Response are inappropriate and an abuse of process.  In such a circumstance an order is made that the Response filed by the husband on 10 October 2018 be struck out and dismissed.

5. Subsequently, the respondent husband filed a further Response on 10 December 2018 pursuant to directions made by the registrar that set out to some extent sought more appropriate orders. 

6. At the commencement of the proceedings the husband made oral application that the Court recuse itself from further hearing the application. Upon being invited to make submissions the husband could offer nothing further to support his oral application. In the absence of any cogent argument or any argument at all in support, the application will be dismissed.

7. In these proceedings the Court delivered final Reasons for Judgment as to property settlement between the applicant wife and the respondent husband on 1 December 2017.  Those orders remain undisturbed.  The orders made on 1 December 2017 provided, in summary:

   (1)That the husband vacate the former matrimonial home at Suburb C no later than 28 days from the date of orders and thereafter be restrained from approaching or entering upon the said property.

   (2)That as and from 28 days from the date of orders the wife have sole use and occupation of that property.

   (3)That the husband pay as they fall due and payable outgoings in relation to that property, including mortgage payments, until such time as he vacates the property.

   (4)That within three months from the date of these orders the wife pay to the husband $41,330.00 and in consideration of that payment the husband transfer to the wife his interest in the property at Suburb C, including signing all necessary memorandum of transfer and signing all documents so as to permit the wife to procure a discharge of the mortgage presently secured against the said property.

   (5)That concurrently with the payment provided for above the wife refinance the mortgage presently secured against the said property so as to release the husband from all or any liability arising from the said mortgage.

   (6)That in default of the wife paying to the husband the sum as provided for the parties do all things necessary to sell that property for the best price reasonably obtainable and for the property proceeds to be divided so as to effect an overall division of property as to 52.5 per cent to the wife and 47.5 per cent to the husband by reason of the asset pool otherwise determined in paragraph 55 of the final Reasons for Judgment.

   (7)Liberty to apply as to implementation or enforcement of these orders.

8. Subsequently, on 9 February 2018 an order was made for a Warrant for Possession to issue to secure vacant possession of the property at Suburb C, the husband having failed to vacate the property in accordance with the court orders.  By orders made on 9 February 2018, that warrant was to lie in office until further advice from the applicant wife's solicitor. 

9. Subsequently, further orders were made on 21 March 2018:

   (1)Order 1 of the Orders made on 9 February 2018 be discharged.

   (2)The time for compliance by the parties with Orders 4 and 5 of Orders made on 1 December 2017 be extended for two (2) months from the date of execution of the warrant pursuant to Order 3 hereof.

   (3)The Warrant for possession ordered on 9 February 2018 of the property situate at B Street, Suburb C be issued to an enforcement officer to enter the property and do all things necessary to give vacant possession of the property to the wife.

   (4)To give effect to Order 3 of the Orders made on 9 February 2018, the husband shall forthwith remove all furniture, personal belonging, rubbish and debris from the property.

   (5)In the event that the husband fails to comply with Order 4 above, the wife is empowered to remove and dispose of any furniture, personal belonging, rubbish and debris from the property as the wife sees fit at the cost and expense of the husband.

   (6)The wife shall be permitted to deduct the cost and expense incurred by the wife as a result of Order 5 above, in reduction of the money that the wife is required to pay the husband pursuant to Order 4 of the Orders made on 1 December 2017.

   (7)The husband pay the wife’s costs of and incidental to this Application on an indemnity basis.

   (8)In the event the husband fails or neglects to sign the memorandum of Transfer and discharge authority within 14 days of the date of these orders, then the Registrar of the Family Court of Australia shall upon an affidavit being presented to the Registrar deposed to by the wife that the husband has failed to execute the Transfer, shall pursuant to s 106A of the Family Law Act execute the Transfer on behalf of the husband and otherwise give effect to the document.

   (9)Leave to apply on short notice to these orders.

10. Subsequently, the present Application for determination was filed by the wife on 18 September 2018, and in that Application in a Case the wife sought orders that the Registrar sign specific documents to effect the import of the orders made in December 2017 and, particularly, documents being the transfer as to the subject property at Suburb C and the National Australia Bank discharge authority for mortgage.  Those documents were necessary for her to complete the refinance of the property and to make funds available to the husband as required by the primary orders.

11. It was, otherwise, sought in the interim application that time for compliance with the orders as to payment to the husband be extended for a further period of two months.  That is, until two months from the date of any orders made in the context of the present application. 

12. On 28 November 2018 the wife filed an Amended Application in a Case.  In that amended application she once again sought orders for the Registrar to sign the specific documents, being transfer and discharge of mortgage authority on behalf of the husband, so as to permit her to refinance the property. She, otherwise, sought orders as to the husband paying her costs of and incidental to the present application.  She sought ancillary orders requiring that she pay the sum of $41,330.00 to the Family Court of Australia Parramatta registry pending assessment of costs and subsequent to assessment of costs that the balance after deduction of costs as assessed be paid out to the husband. 

13. The husband in response to the wife's Amended Application filed an Amended Response to an Application in a Case that Response being filed on 10 December 2018.  In essence, the Response seeks an order that the wife's application be dismissed. In effect that would mean that the primary orders made in December 2017 simply remain unimplemented by reason of the husband's obstruction. 

14. The wife in support of her Application in a Case relied upon an affidavit by Mr Q, solicitor, filed on 18 September 2018.  The solicitor gives evidence that the wife was able to take vacant possession of the property by collecting keys to the property from the Suburb T Police Station on 2 August 2018.

15. Otherwise, correspondence was forwarded to the husband on 29 August 2018 and 11 September 2018 requesting that he sign a National Australia Bank discharge authority and the necessary memorandum of transfer.  The husband has not responded to that correspondence.  The husband contacted the office of the wife's solicitors after hours on 11 September 2018, leaving a voice message acknowledging receipt of correspondence from the wife's solicitors and asking not to be contacted again.  The husband has failed to sign the memorandum of transfer or sign documents to procure the wife to discharge the mortgage to the National Australia Bank as provided for in primary orders made in December 2017.

16. The wife further relies upon her affidavit filed on 28 November 2018 as to the cost incurred by her in and about the removal of the husband’s possessions and rubbish from the subject property.  She has incurred in terms of rubbish removal, as attested in her affidavits of both 28 November 2018 and 18 February 2019 a total sum of $13,263.98.  Otherwise, the wife gives evidence that, in respect to the application for enforcement by reason of the issue of a warrant and ancillary orders, the wife has incurred solicitors’ costs totalling $6,636.00.  An order has been previously made that the husband pay those costs on an indemnity basis.

17. Doing the best the Court can in the circumstances, it appears appropriate for the work undertaken by the wife’s solicitors that the indemnity costs order previously made be assessed in the sum of $6,636.00 and such will be the sum attached to that order. 

18. Otherwise, in terms of the present application, the wife seeks an order that the husband pay the costs of and incidental to the present application on an indemnity basis.

19. The law as to costs under s117 of the Act is well settled. 

20. The general rule as to costs, that each party pay their own costs. That principle is subject to the discretion afforded to the trial Judge in subparagraph (2) that provides:

    If the Court is of the opinion there are circumstances that justify them doing so, the Court may, subject to further subsections thereof and the applicable rules of Court, make such order as costs as the Court considers just.

21. Although section 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs.  The matters set out in subsection (2A) of section 117, being the relevant considerations as to disturbing the primary rule that each party pay their own costs, are set out in subparagraphs (a) to (g) of that section.

22. Primarily, the wife makes application for costs of the present application as the proceedings, being the present application, were necessitated by the absolute failure of the husband to comply with previous orders of the Court and his obligations that were imposed on him pursuant to those orders. 

23. In all of the circumstances, it is appropriate that there be an order that the husband pay the wife’s costs of and incidental to the present application.  In all of the circumstances, and having regard to costs incurred in respect of previous applications, it is reasonable to assess those costs in the lump sum of $2,500.00 so as to avoid the necessity of further taxation.

24. Accordingly, in all of the circumstances, the husband is liable for the wife’s costs, being the previously order indemnity costs in the sum of $6,636.00 and costs of the present application of $2,500.00 in the total sum of $9,136.00. 

25. The primary issue being the application for the Registrar to sign documents is pursuant to section 106A of the Act that relevantly provides:

    (1)     If

    (a)an order under this Act has directed a person to execute a deed or instrument; and

    (b)that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the Court under this subsection;

    the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

26. As was remarked by Gill J in the more recent decision of Sohrab & Bahr (2017) FamCA 199 at [25], an application under s 106A does not entitle the Court to reconsider the appropriateness of orders made at trial. This is particularly cogent having regard to the meandering submissions of the husband, Mr Ravalli, in the course of the proceedings today. The section provides a mechanism to cause orders to be carried out. However, the granting of relief is expressed as a matter of discretion. Once pre-conditions set out in paragraphs (a) and (b) are met, the Court may grant the relief.

27. The fact that parties are entitled to the fruits of their litigation of itself provides a strong reason why the relief ought to be given, meaning that normally a strong basis for refusing a relief would need to be made out before relief is withheld. 

28. The respondent husband to the present application simply seeks a dismissal of the wife’s application under s 106A with no cogent reasons or evidence in support of this dismissal, except his meandering submissions in relation to the primary Judgment itself.

29. In all of the circumstances, it is appropriate that orders be made as sought by the applicant wife. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 February 2019.

Associate:

Date:  19 February 2019