Ravin and Ravin (No 2)

[2013] FamCA 803

FAMILY COURT OF AUSTRALIA

RAVIN & RAVIN (NO 2) [2013] FamCA 803

FAMILY LAW – Marshall of the Family Court of Australia authorised to effect delivery up to the applicant the real property

Family Law Act 1975 (Cth)

APPLICANT: Ms Ravin

RESPONDENT: Mr Ravin

FILE NUMBER: MLC 6560 of 2012

DATE DELIVERED: 4 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: 4 October 2013

JUDGMENT OF: Cronin J

HEARING DATE: 4 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shaba

SOLICITOR FOR THE APPLICANT: Zindilis Lawyers

THE RESPONDENT: No appearance

Orders

1. That the Marshal of the Family Court of Australia and all other authorised persons do all such acts and things and if necessary by force, and with such assistance as they or any of them shall require, to effect delivery up to the applicant Ms Ravin the real property at B Street, Suburb D, Victoria ...

2. That the reasons otherwise this day be transcribed and be placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ravin & Ravin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6560 of 2012

Ms Ravin

Applicant

And

Mr Ravin

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Ravin, to whom I shall refer in these reasons as the wife, seeking to recover the real property at B Street, Suburb D, where it is said that her husband Mr Ravin, to whom I shall refer as the husband, is residing, contrary to the provisions of an order made by the Court on 30 April 2013.  The enforcement of the order was in two parts in an application filed on 8 August 2013.  The first part related to the fact that the husband had not signed the transfer of land and provision had been made in the order for the registrar to sign in the name of the husband under s 106A of the Family Law Act 1975 (Cth) (“the Act”).

2. When the matter came on for hearing before Macmillan J on 6 September 2013, her Honour made it clear that that was not a matter for the Court to have to make an order about and, no doubt, the provisions of the order made in April were subsequently followed.  However, her Honour did order that documents be served on the husband, including a letter advising the husband that the registrar had signed the transfer of land.

3. By an affidavit of service filed on 3 October, the deponent says that the documents were sent to the husband in accordance with Macmillan J’s orders and attached to that affidavit is a letter indicating that the transfer of land had been signed and then the following:

   Further, in the event that you fail to comply with paragraph 4 of the final orders made in by Cronin J on 30 April 2013, namely that you must vacate the property at [B Street, Suburb B ] Victoria, orders may be made on the adjourned hearing of the matter for a warrant to issue authorising an enforcement officer to enter the property and give possession of the property to our client, we hereby put you on notice that if you do not vacate the property before 4 October 2013, we will appear at court on the return date and seek this order.

4. That is what is before the Court today.  There has been no appearance by Mr Ravin and there is no suggestion by the wife that he has done anything about the matter, nor responded to the request in the letter that I have just referred to.

5. Chapter 20 and specifically rule 20.54 of the Family Law Rules 2004 provides that:

   (1)An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days notice of the order to be enforced before the warrant is issued. 

   (2)A court may issue a warrant for possession authorising an enforcement offer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.

6. There is then a provision in relation to leases and tenancies, and that is not suggested is the case here.

7. The husband has had since April to comply with the orders and it would appear on the evidence of the wife in an affidavit filed 8 August that he simply is intentionally not complying.  On that basis, he has not only had ample notice, but he has had a warning that the warrant would be sought.

8. I do not propose to make an order in the terms of paragraph 2 of the application of 8 August, but simply to leave the authorised person, who can be nominated by the marshal, to do all things necessary to enforce the orders by obtaining possession on behalf of the applicant.

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

1. The reasons then will otherwise be transcribed and placed on the court file.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 October 2013.

Associate: 

Date:  16 October 2013