Robb and WILLIAMS

[2009] FamCA 967

FAMILY COURT OF AUSTRALIA

ROBB & WILLIAMS [2009] FamCA 967

FAMILY LAW – PROPERTY SETTLEMENT – ENFORCEMENT OF ORDERS – application seeking the enforcement of final property settlement orders made by consent– where the Court is not able to determine the matter without hearing contested oral evidence – matter adjourned to a short trial

APPLICANT: Ms Robb

RESPONDENT: Mr Williams

FILE NUMBER: ADC 835 of 2007

DATE DELIVERED: 1 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Noble

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. This matter is adjourned to the Short Trial List on oral evidence before the Honourable Justice Burr on the 16 December 2009 at 10.00 am.

2. Any evidence-in-chief of the parties or their witnesses to be relied upon should be in an affidavit with any documents to be relied upon to be annexed to an affidavit such affidavits to be filed and served by 4.00 pm on 4 December 2009.

3. Case outline of each party to be filed and served by 4.00 pm on 8 December 2009.

4. Upon the expiration of the appointment of Mr R as the agent for the sale of the property and if within the next seven [7] days the parties are unable to agree upon the appointment of a real estate agent for the sale of the property then the President of the South Australian Real Estate Institute appoint a real estate agent for the sale of the K Street property in the State of South Australia.

IT IS NOTED that publication of this judgment under the pseudonym Robb & Williams is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 835 of 2007

MS ROBB

Applicant

And

MR WILLIAMS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application to enforce consent orders in relation to final property settlement orders made by Justice Burr on 23 April 2009. 

2. The issues relate to the sale of a property at K Street;  the payment by the wife, or a company controlled by the parties, of an account due to P Accountants;  and the return of photograph albums. 

3. Normally I would deal with this matter on the papers; however, there are significant issues which arise in relation to dispute as to the facts of the matter which requires a hearing on oral evidence.

4. The first dispute is one which is not necessarily a dispute as to factual matters, but also may be a dispute as to the law to be applied, namely, whether the order that the wife now seeks for work to be done on the K Street property is an order which can be appropriately described as an enforcement order, or whether it is, in fact, seeking an alteration of the order made by Justice Burr by way of final order.

5. The factual matter which relates to that is whether the work that the wife seeks to have done at the joint cost of the parties is work that is necessary and whether the orders are necessary to give effect to the orders made by consent by Justice Burr. 

6. There is a need to determine that as the affidavit material before me certainly indicates a dispute about whether that is necessary.  It will be up to the applicant wife to convince the Court that the order she seeks falls within the description of an enforcement order and that the facts are such as to make the type of order she seeks “necessary” for the order to be carried out. 

7. The husband asserts that the property can be sold as it is.  That is what he seeks.  He opposes any orders sought by the wife in relation to the further work to be done. 

8. There is also a dispute about who should be the ongoing agent in relation to the sale of that property. 

9. The other orders that are sought by the wife relate to the payment of P Accountants. 

10. The wife has produced the account which is annexure “I” to her affidavit filed on 9 September 2009, which shows the total account as $9,527.10.  That is simply an account by P Accountants to WR Consultants Pty Ltd. 

11. Annexure “J” is a document which is headed “Summary”.  The second half is headed “Detail”.  It appears to be a document which is described as “[P Accountants] – [O] Fee Summary”.  That is in the first column on the horizontal column of the document. 

12. The husband says that that describes the whole document, therefore, as the Os’ account to which sub-paragraph (q) of the order of Justice Burr refers. 

13. The wife says, however, that when the other columns are brought into account, the Os’ amount is $4,176.51 and the company account is the remaining $5,350.59. 

14. The husband disputes that and says any account due by the company to P Accountants has been paid.  There is therefore a dispute to be determined as to the factual matters behind the interpretation of that part of the consent order of Justice Burr. 

15. There is further an order sought by the wife that the husband return to the wife six photograph albums in compliance with paragraph 5(m)(iv) of the order of Justice Burr. 

16. The order provides that the photo albums be delivered up to the husband for copying and required them to be returned to the wife within 30 days of the date of receipt. 

17. The husband asserts that he has returned all the albums.  That is not agreed by the wife.  There is therefore, again, another factual dispute to be determined. 

18. It is therefore with regret that the Court is not in a position to be able to determine the matter other than by hearing contested oral evidence, not only of the parties, but of witnesses in relation to the work to be done in relation to the sale of the K Street property and the investigation in relation to the correct interpretation of the order so far as the P Accountants account is concerned.

19. I anticipate this matter should be able to be concluded within half a day to a day. 

20. It is adjourned for a short trial on oral evidence before Justice Burr on 16 December 2009 at 10.00 am.

21. Any evidence-in-chief of the parties or their witnesses to be relied upon shall be in the form of an affidavit with any documents relied upon to be annexed to an affidavit.  They are to be filed and served by 4 December and a case outline of each party to be filed and served by 8 December.

22. One of the disputes is whether the property should be sold in its present state or after work has been done.  It is, therefore, not appropriate for me to make the order sought by the husband in paragraph 2 in its present form.  However, bearing in mind the possible benefit to the parties if the property remains on the market, I am satisfied it is the type of order that can be made by way of enforcement, and it is appropriate to make an order about the appointment of another agent.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  13 October 2009