Roland & Roland (No. 2)

[2021] FamCA 587

FAMILY COURT OF AUSTRALIA

Roland & Roland (No. 2) [2021] FamCA 587

File number(s):	MLC 765 of 2020
Judgment of:	BENNETT J
Date of judgment:	4 August 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – where husband makes urgent application for writ of vacant possession of former family home in anticipation of the sale of the property pursuant to earlier orders of the court – where procedural orders made to ready matter for determination after the wife has had an opportunity to respond.
Cases cited:	Roland & Roland [2021] FamCA 514
Number of paragraphs:	31
Date of hearing:	4 August 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Barrett
Solicitor for the Applicant:	Coote Family Lawyers
Counsel for the Respondent:	Mr De Alwis
Solicitor for the Respondent:	Hope Earl Lawyers

ORDERS

MLC 765 of 2020

BETWEEN:

MR ROLAND

Applicant

AND:

MS ROLAND

Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	4 AUGUST 2021

THE COURT ORDERS THAT:

1.By 3pm on 6 August 2021 the wife notify the husband, through their respective solicitors, of whether she agrees that the listing of the rental property at J Street, Suburb K on the internet … is an accurate depiction of the property, and if not an accurate description of the property, whether she requires that the property be inspected by the Court.

2.The husband’s Application in a Case filed on 4 August 2021 be set down for determination by me on 16 August 2021 at 12 noon, estimated to conclude within 2 hours (“the hearing”).

3.The husband and the wife attend the hearing.

4.Subject to any further order by me, the hearing be conducted on a fully attended (face to face) basis with the parties and their practitioners attending the Melbourne Registry in person.

5.In anticipation of the hearing:

a.The husband file and serve any Amended Application in a Case and further affidavit evidence in support thereof by not later than 4pm on Thursday 5 August 2021;

b.The wife file and serve any Response to the husband’s Application and all evidence in support by any orders sought be her by not later than 4pm on 10 August 2021 ; and

c.The husband file and serve any Reply and evidence in response to new matters raised by the wife by not later than 12.00 noon on 12 August 2021.

d.To the extent it is necessary, I grant permission to the husband and the wife to cause any number of subpoenas to issue provided such subpoenas are made returnable and inspection be conducted prior to the hearing. The subpoenas may include subpoenas to the Proper Officer of the mobile service provider(s) for wife’s mobile telephone numbers … and/or … to produce documents evidencing usage of telephone services, the contract for the service, and the dates upon which any handsets associated with the service were reported as lost or not operational.

e.By not later than 4:00 p.m. on Monday 9 August 2021 the solicitors for the husband provide a draft Warrant of Possession in the form in which they propose it be made at the hearing to my Associate and the solicitors on the record for the wife.

f.Each party provide a minute of order which he/she seeks be made on the hearing date to my Chambers – email … - in Word format by not later than 10.00 a.m. on the morning of the hearing.

6.Any party who wishes to rely on written submissions for the hearing ensure that the written submissions are sent to my associate  – email … - by 10.00 a.m. on the hearing date in Word format.

7.The time and dates for compliance with paragraph 13 of the Order made on 12 April 2021, in relation to the filing of documents for the final hearing of this matter, be extended by 48 hours on each occasion.

8.In the event that the mother elects to discontinue her instructions to her solicitors currently on the record, she do all acts and things necessary to ensure that she can represent herself at the hearing or that any alternative solicitors whom she retains are fully instructed to appear on her behalf.

9.The email communication of 30 July 2021 be marked exhibit “C1” and remain on the court file.

10.The communication from wife to real estate agent of 2:38pm on 30 July 2021 be marked Exhibit “C2” and remain on the court file.

11.The screenshot of a text sent by the wife to her solicitors on 4 August 2021 be sent by the wife’s solicitors to my associate and, when received, be marked Exhibit “C3” and remain on the court file.

12.My reasons for decision this day be transcribed and, when transcribed, be placed on the court file and a copy sent to each party.

13.Reserve costs.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me on an urgent mention to arrange for the orderly hearing of the husband’s Application in a Case filed 4 August 2021 in which he seeks urgent orders including, but not limited to, a warrant of possession for the former family home at B Street, Suburb C (“the former family home”) in anticipation of its sale.  The supporting affidavit refers to the former family home being auctioned in three days (7 August 2021), hence the urgent listing. However, it is clarified that the sale campaign was due to start soon for an auction in August 2021.

2. The sale of the former family home is provided for in an Order made on 12 April 2021. Then there were proceedings on 2 June 2021 to enforce the terms of sale. My reasons for the Order on 2 June 2021 are published in case neutral citation, Roland & Roland [2021] FamCA 514. I incorporate those reasons into these reasons.

3. Currently, the wife and the two children of the marriage reside at the former family home. This is in spite of an extant order requiring the wife to vacate the former family home within 10 days of the husband having obtained accommodation for the wife and children (which the husband says he has done).

4. The children are aged four years and seven years and are in the care of the mother for nine out of 14 days each fortnight. The children live with the father for five nights a fortnight. I mention the care arrangements for the children because, in the event that the mother and children are removed from the former family home by the police pursuant to a warrant for possession and the wife refuses to move into accommodation provided by the husband, the husband seeks a change in interim residence so that the children reside with him and his wife until further order.

5. An Order made by me on 6 July 2021 provided, amongst other things, for the wife to vacate the former family home in favour of alternative accommodation to be obtained.  The relevant paragraph of the Order is:

   7. The husband do all acts and things and sign all documents necessary to secure appropriate rental accommodation (at least 3 bedrooms) for the wife and the children no more than 5 kilometres from the children’s school for a period of no less than 6 months with the husband to directly meet the rental payments, bond and the costs of the removalist.

6. On 8 July 2021, the lawyers for the husband wrote to the lawyers for the wife enclosing links in respect of five rental properties which the husband considered comply with the requirements of comprising at least three bedrooms and being within five kilometres of Suburb C Primary School[1].  Omitting formal and irrelevant parts, the correspondence dated 28 July 2021 stated:

   It is our position that it is incumbent on your client to arrange any viewings as a matter of urgency and inform our client, via your office, of her preferred rental.  Failure on your client’s part to provide any input may result in our client securing accommodation without further notice to your client, as the Orders allow him to do.

   [1] Annexure “R-01” to the affidavit of Mr Roland filed 2 August 2021.

7. On 12 July 2021, the solicitors for the wife wrote to the solicitors for the husband[2]. Omitting formal and irrelevant parts, the wife’s solicitors stated that:

   [The wife has had] an opportunity to review the proposed rentals provided cover under the above letter [of 28 July 2021].  In the alternative, our client proposes either (sic) of the following rental properties:

   1.L Street, Suburb P, Vic …;

   2.M Street, Suburb F, Vic …;

   3.N Street, Suburb C, Vic …;

   4.J Street, Suburb K, Vic ….

   Can you please advise whether your client is agreeable to securing any of the above rental properties for our client and the children? 

   [2] Annexure “R-02” to the affidavit of Mr Roland filed 2 August 2021.

8. The following day, 13 July 2021, the husband’s solicitors wrote to the wife’s solicitors[3] and, inter alia, advised:

   With reference to your correspondence dated 12 July 2021, our client is agreeable to securing the rental accommodation at J Street, Suburb K (“the Suburb K property”) for your client. Our client has made enquiries with the listing agents for the Suburb K property and is in the process of executing all documents necessary to secure that property, which our client is confident of doing.

   The Suburb K property is currently vacant, and our client anticipates your client being able to relocate essentially as soon as the necessary paperwork is completed. We anticipate providing that confirmation on or before 4.00pm tomorrow, 14 July 2021. At that stage, in accordance with paragraph 9 of the Orders dated 6 July 2021, your client will have 10 days to vacate the Suburb C property. We will then revert to you for instructions with respect to removalists and any storage that may be requested by and / or required by your client.

   With respect to the more general Orders relating to the sale of the Suburb C property, made by Her Honour on 12 April 2021, we note that the date by which the property must be sold is listed as 21 August 2021. We are in receipt of correspondence from the selling agent sent to parties wherein they state that in order to obtain the highest possible selling price, the marketing campaign for the Suburb C property should be no less than 5 weeks in duration. On the basis that any necessary works need to be completed following your client’s departure from the Suburb C property, our client believes that that advertising campaign should start no earlier than Monday 2 August 2021. With a 5-week marketing campaign to take place, our client proposes an auction date of 4 September 2021.  

   [3] Annexure “R-03” to the affidavit of Mr Roland filed 2 August 2021.

9. On 16 July 2021, the solicitors for the husband sent a copy of the fully executed residential rental agreement for the property at J Street, Suburb K (“the rental property in Suburb K”), to the solicitors for the wife. The covering letter[4] further stated:

   It is our client’s position that this amounts to full compliance with paragraph 7 of the Orders.  In accordance with paragraph 9 of the Orders, your client therefore has 10 days to vacate the property, namely, on or before Monday, 26 July 2021. 

   [4] Annexure “R-04” to the affidavit of Mr Roland filed 2 August 2021.

10. The husband’s evidence in support of this application for, inter alia, a writ of vacant possession of the former family home, is his affidavit filed on 2 August 2021, at 9.57 am. That document was filed in reliance on the Chief Justice’s Joint Practice Direction 2 of 2020 – Special Measures in Response to Covid-19 in relation to the courts’ acceptance of affidavits without wet signatures. The husband participated in today’s hearing. He swore up to the truth and accuracy of the document filed on 2 August 2021. I consider that evidence to be sworn notwithstanding that the husband’s signature is not affixed. I have endorsed the document accordingly.

11. The husband deposes that, on 19 July 2021, he sent an email to the real estate agents managing the rental property in Suburb K, confirming that the wife would collect the keys from their office.  At approximately 10.10 am on 19 July 2021, the wife sent an email to the real estate agent for the rental property, into which the husband was copied[5]. The wife’s email stated:

    Thanks but I never said I am going to move to that property.

    I never got the chance to look at it and for many consideration plus the covid-19 lockdowns and the high risk of this deadly virus and so on I must say thank you for your time but for the sake of my children, their safety, health and life so children and We are not taking that property for rental.

    P.s I’m not going to pick up anything as what but Mr Roland stated.

    [5] Annexure “R-05” to the affidavit of Mr Roland filed 2 August 2021.

12. The husband further deposes that, on 21 July 2021, he secured a storage facility for the furniture in the former family home and that a copy of the storage facility agreement was sent to the wife’s lawyers on the same day[6]. 

    [6] Annexure “R-06” to the affidavit of Mr Roland filed 2 August 2021.

13. The husband deposes that at the time of making his affidavit, no response has been received from the mother or her lawyer to the correspondence sent by his lawyers on 16 and 21 July 2021.  

14. Today, Mr Barrett appears on behalf of the applicant husband, and Mr De Alwis appears on behalf of the respondent wife.  Mr De Alwis has not been able to contact his client.  Mr De Alwis informed me that he has attempted to contact Ms Roland six times today without success. At approximately about 1.19 pm, Mr De Alwis sent the wife the link to today’s hearing, which is being conducted on the courts’ Microsoft Teams platform, inviting her to join. 

15. Mr De Alwis acknowledges that his office and the wife have had prior notice of this urgent application. 

16. On Friday 30 July 2021 at 11.18 am, the husband’s solicitors wrote to the wife’s solicitors informing them that an Application in a Case would be filed by the husband on Monday (2 August 2021) in the event that a satisfactory response was not received to their earlier correspondence.  A copy of the Application in the Case and the husband’s affidavit was sent with that correspondence[7].  Mr De Alwis, solicitor for the wife, has informed the Court that he sent that correspondence and the Application in a Case and affidavit in support to his client promptly, in particular, at 11.29 am last Friday. 

    [7] Exhibit “C1”.

17. I’m further informed by the solicitor for the wife that at 2.38 pm on Friday 30 July 2021, an email was sent by the wife to a real estate agent, not being the real estate agent handling the sale of the former family home or the agents from whom the husband has negotiated the tenancy of the rental property in Suburb K. In that correspondence[8], the wife informs that real estate agent that:

    As we all know this covic-19 (sic) outbreaks (sic) getting worsen (sic) and think it’s a lot more safe for my children and I or everyone in general to be in our own family home in B Street, Suburb C Until the selling of my house or the settlement. But due there is interim court orders made before the lockdown...also the kids father demanded for my children and i (sic) need to vacate from our home ASAP so even its really contrary with what the children and I am willing to... we are ok to move from our home and I think this house would suits (sic) better for my children as it’s closer to their school/kinder, parks, their friends and so on. I hope it will help them to feel a little easier to settle in as its my best priority for them to feel safe, happy and stability. If possible could you Please (sic) ask the landlord if they could reduce the rate? I will cc this email to my solicitors as well. Looking forward to hear from you all and sorry for any delays I’m not feeling so well after the vaccines.

    [8] Exhibit “C2”.

18. Mr De Alwis informed the court that he has not heard from his client since 30 July 2021. The wife is not participating personally in this electronic hearing today.

19. Then, approximately 15 minutes ago, at 3.28 pm this afternoon, an associate of Mr De Alwis, who also works on the wife’s file in these proceedings received a text message from the wife saying:

    From wife to Mr De Alwis at 3:28pm: Ms L I lost my phone several days ago so unable to communicate since then so haven’t check my emails or messages. This is my new number. Ms Roland (sic)

20. The solicitors for the husband have foreshadowed an amendment to their application in a case to include an injunction preventing the wife from returning to the former family home or from attending at or within 200 metres of the former family home on any days on which the former family home is open for inspection as well as for the entire day immediately prior to the auction day and the auction day itself.

21. The solicitors have also foreshadowed an amendment of the husband’s Application in a Case to seek a recovery order to collect the children to place them in the care of the father, I assume, in the event that the wife is precluded from occupying the family home but refuses to reside with the children at the rental property in Suburb K.

22. On the adjourned date, being 16 August 2021 at 12 noon, I will determine the husband’s application for a warrant for possession and ancillary injunctions or other relief sought preparatory to the auction of the former family home. The husband and the wife must each attend court or participate in any electronic hearing on 16 August 2021. I have allowed up to two hours for the hearing. Each party’s case must be tailored to be concluded within a reasonable proportion of the time available with allowance for me to deliver some brief reasons for decision.

23. The orders which I have made today require the wife to clarify, promptly, whether the depiction of the rental property in Suburb K on the estate agent’s website is accurate and whether it is an appropriate residence for the wife and the children.

24. It is important to note that the appropriateness or adequacy of the rental property at Suburb K is to be determined having regard to the descriptors and characteristics expressed in paragraph 7 of the Order made on 6 July 2021, to wit:

    rental accommodation (at least 3 bedrooms) for the wife and the children no more than 5 kilometres from the children’s school for a period of no less than 6 months with the husband to directly meet the rental payments, bond and the costs of the removalist

25. As best I understand, the wife has not inspected the rental property in Suburb K. It is not known if the wife concedes that the rental property in Suburb K complies with the operative order and, if not, how it is wanting. If the wife maintains that the rental property in Suburb K is not fit for purpose, because it does not have a minimum of three bedrooms and/or is not located within 5 kms of Suburb C Primary School or for some other reason, I may have to view the property personally. Arranging and conducting a view is time consuming and could interfere with my commitments to hear other cases. Accordingly, I ask that the parties and their practitioners give careful consideration to defining the real issues in the case, what evidence is relevant to a determination of those issues and whether the property has to be viewed.

26. The wife should not delay in:

    ·     conducting an inspection of the rental property in Suburb K;

    ·     instructing her lawyers, and

    ·     taking advice.  

27. The wife has until 4:00 p.m. on Tuesday 10 August 2021 to file her response and evidence in support of that response for the hearing on 16 August 2021.

1. Notably, the husband’s application, as currently drawn, seeks that the wife vacate the former family home “within 48 hours”. If I accede to the orders sought by the husband, the wife and children will be required to leave the former family home by 12.00 noon on Wednesday 18 August 2021. I have not made a decision nor come to any conclusion on the husband’s Application in a Case. I have not had the benefit of hearing from the wife and she must be accorded the opportunity to respond and put her own case to the court. However, the wife should understand that, if I accede to the husband’s application, she and the children will need to move quickly.  

2. If the wife does not continue to instruct her current solicitors, she must be in a position on Monday 16 August 2021 at 12:00 noon to represent herself or otherwise be represented by lawyers to whom she has given full instructions.  I have purposefully made the hearing date far enough away so that the wife will have adequate time to complete her Response and/or instruct solicitors to represent her at the hearing. 

3. In these circumstances and subject always to me considering the evidence adduced by, and submissions made on behalf of, the wife, the wife should not assume that changing legal practitioners at this late stage would entitle her to a postponement of the hearing on 16 August 2021 (writ of possession), the auction of the former family home or the final hearing set down to commence on 21 September 2021.

4. The Order made on 13 April 2021 contains a timetable of filings and preparations for the final hearing save that today the parties’ practitioners have agreed that:

   (a)On or before Thursday 5 August 2021, the Applicant Husband file and serve a copy of any amended Application, Affidavit in Chief and Financial Statements upon which he seeks to rely;

   (b)On or before Thursday 2 September 2021, the Respondent Wife file and serve a copy of any Amended Response, Affidavit in Chief and Financial Statement upon which she seeks to rely; and

   (c)On or before Thursday 9 September 2021, the Applicant Husband file and serve any Affidavit in Reply to the Wife’s evidence.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       4 August 2021