Rawson & Keach

[2023] FedCFamC2F 454

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Rawson & Keach [2023] FedCFamC2F 454

File number(s):	SYC 5555 of 2014
Judgment of:	JUDGE YOUNG
Date of judgment:	27 February 2023
Catchwords:	FAMILY LAW – application for review of orders made by a judicial registrar -  where the judicial registrar made orders to enforce consent orders – where the consent orders provided for the sale of the former matrimonial home – where the wife has previously had a litigation guardian – where the wife is now self-represented – where the wife has not taken any steps to vacate or sell the house – where the wife has not provided any reason the enforcement application should not be granted – where the court is satisfied there is good reason to depart from the rule that each party should bear their own costs as the wife’s application has been wholly unsuccessful.
Legislation:	Family Law Act 1975 s79A
Division:	Division 2 Family Law
Number of paragraphs:	13
Date of hearing:	27 February 2023
Place:	Darwin
Counsel for the Applicant:	Mr Lawrence
Solicitor for the Applicant:	Wyatts Lawyers
Solicitor for the Respondent:	Self- Represented Litigant

ORDERS

SYC 5555 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR RAWSON

Applicant

AND:

MS KEACH

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	27 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The oral application made by the wife for an adjournment of the hearing for Review is refused.

2.Order 3 of the orders made by a Senior Judicial Registrar on 8 December 2022 be varied to:

“by no later than 4pm [in] March 2023 the wife shall give vacant possession of the Suburb B property and shall deliver up all keys, pass cards and other devices for accessing the property or any part of it to the husband”.

3.The wife pay the husband’s costs in the sum of $1,767.00 with such amount to be deducted from the wife’s share of the net proceeds of sale of Suburb B property.

4.The Application for Review filed by the wife on 27 January 2023 be otherwise dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

Judge Young

1. This is an application for review of orders by the Judicial Registrar on 8 December 2022.  The orders made on that day were made on the husband’s application to enforce consent orders made on 13 March 2020.  The orders of 13 March 2020 provided, in very summary terms, for the sale of a property, which is the former matrimonial home I assume, at Suburb B.  The consent orders required that the sale take place no later than six months from the date of making the orders, i.e. by 13 September 2020 the wife list the property for sale and take steps to sell it, have the mortgage discharged and so on. 

2. As part of those orders, the husband was to pay the wife by the way of property settlement the sum of $115,000.  It is clear that the wife has taken few, if any, steps to give effect to those orders and hence the bringing of the application for enforcement.  According to the reasons for judgment of the Judicial Registrar of 8 December, it is observed that there is no dispute that the cash sum of $115,000 was paid to the wife by the husband within the time frame provided for in the consent orders.  At the time those orders were made, the wife had a litigation guardian.  On 18 October 2022, the litigation guardian was removed. 

3. At the time the enforcement application was filed on 19 August 2022 the wife had a litigation guardian.  I am told that the litigation guardian was served on 1 September and I am also told that the wife was personally served on 30 August 2022 with the enforcement application.  The wife has told me today that she was served with that.  The wife complained that, as she had a litigation guardian, the service on her was inappropriate.  Be that as it may, I am satisfied that she was served with the application on that date.  The matter then came on for a directions hearing on 18 October 2022 and orders were made that the litigation guardian be removed on that date.

4. The wife has told me that she was not present on 18 October 2022 when her litigation guardian appeared, and she also asserted, though there is no affidavit evidence, that she was not told by the litigation guardian that the matter had been set for hearing on 8 December 2022.  I asked the wife if she would explain to me how she became aware that the matter was set for hearing on 8 December 2022, and she did not give me a satisfactory explanation, though it is clear that she was present and made submissions. 

5. The wife has said to me in submissions that she thought there would be an application, presumably by the husband, for the appointment of another litigation guardian, based on what she says is correspondence with her husband’s solicitor.  However, in my view, that is inconsistent with the reasons for judgment given by the Judicial Registrar, who noted that the wife said that her mental health had improved significantly and she did not consider that she required a litigation guardian for the enforcement application and both parties urged the judicial registrar to deal with the application on that day without any litigation guardian. 

6. The Judicial Registrar also observed that the wife represented herself.  She indicated she understood the nature of the application, was able to make submissions as to why she did not agree with the order, and understood the consequences that might follow from the making of such orders.  As I have said, in the reasons for refusing the wife’s application for adjournment earlier this morning, I am not satisfied there was any unfairness to her in what happened on 8 December 2022. If there was any unfairness, this review hearing, which is an application for review brought by the wife some two and a half months later, has provided her with opportunity to seek legal advice, if that is what she wished, and to file affidavit material. The wife has filed an affidavit, which was taken into account by me, and I am satisfied that there is no unfairness to her, either in the proceeding on 8 December 2022 or today. 

7. In submissions to me today, the wife mentioned that she had difficulty complying with the orders of March 2020 because there had been storm damage to the property and various other things.  There is no affidavit evidence of that before me and I am not aware of any reason as to why the wife has not taken steps to comply with the orders for sale, which put the onus on her to list the property in 2020.  She has done nothing about that, it would appear, or very little, and there is certainly no evidence about anything that might have prevented her from complying with the orders of March 2020. 

8. In submissions to me today, the wife said that she was the victim of family violence at the hands of the husband and she is pursuing proceedings in relation to that in a separate jurisdiction. She said, in effect, that she wished to reach a settlement with the husband that took those matters into account and would presumably seek to vary the orders of March 2020 in her favour as a result of those matters. She also said to me that she had considered an application pursuant to section 79A of the Family Law Act to set aside those orders. I might say that the wife told me today that she has tertiary qualifications, though as far as I know, I accept that she is not familiar with the family law jurisdiction but she seems at least to have made herself aware of section 79A.

9. Of course, no such application has been made, notwithstanding almost three years having passed since the making of the orders.  In short, the wife has not referred to any matter that I consider provides any reason why the enforcement application should not be granted.  In my view, the orders sought by the husband, that is, giving him power to arrange the sale, are appropriate given the unexplained inactivity by the wife over the past three years.  The orders of 8 December 2022 provided that the wife was to give vacant possession by February.  That has passed of course

10. I asked the wife how long it would take for her to give vacant possession of the property. Initially, she said two months.  Later, she said that she would need to repair the house and select an agent and do various things with an indeterminate timeframe.  I am not satisfied that the wife has any realistic proposal in relation to vacating the property.  However, I am satisfied that it is necessary that the property be vacated if the property is to be appropriately marketed.  If repairs are required, as the wife suggests, the husband will have, presumably, power to effect those repairs.  And it is appropriate given the allegations made by the wife that she not be there if those things are to take place.  Also, of course, it is not challenged that the property also secures indebtedness to the bank and the bank has threatened foreclosure though, of course, it appears to have been ready to defer that while these enforcement proceedings are underway.

11. So I propose to make exactly the same orders as the Judicial Registrar which, in my view, were appropriate with the exception of the order that the wife vacate the property by February 2023.  I propose to permit the wife one month to vacate the property which will be March 2023.  I do not propose to vary the orders other than order 3 which will be by no later than 4 pm in March 2023 the respondent shall give vacant possession, etcetera.

12. This is an application by a successful respondent to a review application for costs according to the scale, that is, at $1,767.  The basis for the departure from the usual rule that each party should bear their own costs is that there are circumstances justifying departure and, in particular, having regard to section 117(2A)(b) whether any party to the proceedings has been wholly unsuccessful in the proceedings.  The wife has been wholly unsuccessful in her review application and I am satisfied that that is a circumstances justifying departure from the usual rule.  I might say, in relation to the other matters in (a), (b), (c), (d), (f) and (g), I do not have any material before me about the financial circumstances of the parties, though the wife told me that she has been made redundant.  I have no other information about that.

13. The wife has also told me in passing that she is either the subject of an adverse costs order in proceedings in another court against her husband or that there has been a claim for costs made against her. There is no evidence of this, simply the wife’s assertion from the bar table.  There is no relevant matter in (b), (c) or (d).  In relation to the financial circumstances of the parties, under the property consent orders, the wife is to receive the net proceeds of sale from that property except to the extent that the sale proceeds exceed approximately $1 million in which case the excess is to be divided equally.  I was taken to the husband’s affidavit by Mr Lawrence which indicates that the amounts owing to the bank or various banks on the mortgages are approximately $990,000 and it was asserted by Mr Lawrence that if the property is sold, then the wife should receive a substantial net sum.  I do not think I am able to calculate what that might be but I think there are resources for her to pay the costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Young.

Associate:

Dated:       27 February 2023