SABINA & SABINA

[2015] FamCA 741

FAMILY COURT OF AUSTRALIA

SABINA & SABINA [2015] FamCA 741

FAMILY LAW – ENFORCEMENT OF ORDERS – Where the wife appointed trustee for sale of property and the husband required to vacate the property – Where the husband has failed to vacate the property – Where the wife makes application under Rule 20.54 of the Family Law Rules for a warrant to issue to remove the husband from the property – Where the husband has been notified of the order to be enforced – Where the husband has not appeared before the Court and it is appropriate to proceed on an ex parte basis – Warrant to issue and husband restrained from coming within 500 metres of the property.

FAMILY LAW – COSTS – Where the wife seeks costs of and incidental to her application – Where the wife has been wholly successful in her application – Where an order for costs is made against the husband to be secured by way of charge against the husband’s share of proceeds of sale of the property.

Family Law Act 1975 (Cth) ss 117, 117(2A)

Family Law Rules 2004 (Cth) r 20.54

APPLICANT: Ms Sabina

RESPONDENT: Mr Sabina

FILE NUMBER: SYC 5445 of 2014

DATE DELIVERED: 26 August 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Friedlander

SOLICITOR FOR THE APPLICANT: Mark Brown & Associates

Orders

1. Leave is granted to the Applicant to proceed on an ex parte basis.

2. That pursuant to Rule 20.54 of the Family Law Rules 2004 a warrant issue to the Australian Federal Police to be assisted by the New South Wales Police to remove Mr Sabina from the property at C Street, Suburb D NSW being all of the land comprised in Folio Identifier 758/221691 and to place the property in the possession of Ms Sabina.

3. Upon execution of the warrant of possession by the Australian Federal Police and/or New South Wales Police, Mr Sabina is hereby restrained from entering upon the property at C Street, Suburb D NSW or to have anyone acting as his agent or servant to enter the said property on his behalf after the property is in the possession of Ms Sabina and that thereafter Mr Sabina be restrained from coming within 500 metres of the property.

4. The Respondent pay the Applicant’s costs of and incidental to the application as agreed within 1 month of this order or assessed.

5. Costs payable to the Applicant by reason of orders made by the Court on 15 June 2015 and today be secured by way of charge as against the Respondent Mr Sabina’s share of the proceeds of sale of the property at C Street, Suburb D NSW.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sabina & Sabina (No 3) 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 PARRAMATTA

FILE NUMBER: SYC 5445 of 2014

Ms Sabina

Applicant

And

Mr Sabina

Respondent

REASONS FOR JUDGMENT

1. The application in a case by the wife before the Court is an application for enforcement. 

2. A short background is that final orders for property settlement were made as between the parties on 17 December 2014. 

3. In circumstances more fully set out in the reasons for judgment of Hannam J, delivered on 6 July 2015, the applicant in the present proceedings today was appointed trustee for sale of the subject property at C Street, Suburb D, in the state of New South Wales, being the property more fully described in folio identifier ...

4. Subsequent to the wife being appointed trustee for sale of the property, the husband has not vacated the property in accordance with Order 3, made by Hannam J on 15 June 2015. That order provided that within two weeks from the date of the order the respondent vacate the said property and provide to the applicant all keys, alarm codes, including any remote control mechanism for operation of a garage door or gate to the property. 

5. The wife deposes in her affidavit filed on 21 July 2015 that the husband has failed to vacate the property and, indeed, the husband has been served with documents in relation to the present application on 14 July and 29 July 2015 at the premises at C Street, Suburb D. 

6. In the present application in a case filed on 21 July 2015, the applicant seeks an order for the issue of a warrant for possession pursuant to Rule 20.54 of the Family Law Rules 2004.

7. That Rule provides, in subrule (1), an order for possession of real property may be enforced by a warrant for possession, only if the respondent has at least seven days notice of the order to be enforced before the warrant is issued. 

8. Having regard to the Affidavits of Service in evidence, as Exhibits A and B in these proceedings, the notice requirements in that rule are satisfied. 

9. The respondent has failed to comply with the order for vacant possession and, accordingly, the applicant in the present proceedings is entitled to the issue of a warrant.  Such an order will be made.

Costs

1. Otherwise, the applicant in the present application seeks an order that the respondent pay her costs of and incidental to the application. 

2. A determination of costs is governed by the provisions of section 117 of the Family Law Act 1975, though prima facie it provides for each party to pay their own costs that is subject to the considerations set out in section 117(2).

3. These proceedings are enforcement proceedings and whilst the Court has had regard to each of the circumstances in section 117(2A) as required, the costs application is determined on the basis that the applicant in these proceedings has been wholly successful in the application in circumstances where she is simply seeking to enforce an order of the Court as to property and orders of the Court made subsequently as to enforcement which have not been complied with.

4. The respondent shall be ordered to pay the applicant’s costs of and incidental to the application as agreed within 1 month of this order or assessed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 August 2015.

Associate: 

Date:  26 August 2015