Sadek & Sadek
[2021] FedCFamC2F 222
•16 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sadek & Sadek [2021] FedCFamC2F 222
File number(s): MLC 5785 of 2020 Judgment of: JUDGE BENDER Date of judgment: 16 December 2021 Catchwords: FAMILY LAW – PROPERTY – the Wife’s application to enforce property orders – where final property orders were previously made by consent – where the Husband has failed to make a payment to the Wife in order to retain the former matrimonial home – where there has been a delay in the Wife bringing the Application – where the Husband has also failed to vacate the property and remove items from the property.
HELD – orders made for the Husband to vacate the property and remove his belongings from the property – the property be sold and the Wife have sole conduct of the sale
Division: Division 2 Family Law Number of paragraphs: 20 Date of hearing: 16 December 2021 Place: Melbourne Solicitor for the Applicant: Mr Varszeghy of Waters Lawyers Solicitor for the Respondent: The Respondent appeared in person ORDERS
MLC 5785 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SADEK
Applicant
AND: MR SADEK
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS THAT:
1.For the purposes of the sale referred to in order 12 of the Final Property Orders dated 9 September 2020 (“the sale”):
(a)The Wife, Ms Sadek, have sole conduct of the sale; and
(b)The Wife is appointed as attorney to execute all deeds and documents in the name of the Husband, Mr Sadek, and to do all acts necessary to give validity and operation to the Final Property orders dated 9 September 2020.
2.On or before 14 January 2022, the Husband shall vacate the real property situate at B Street, Suburb C (“the property”).
3.Upon the Husband vacating the property pursuant to order 2 herein, he be restrained by injunction from residing at, going to or remaining within 200 metres of the property.
4.For the purposes of orders 13 and 14 of the final orders made on 9 September 2020, prior to the Husband vacating the property pursuant to order 2 herein, he shall remove all items from the property. In the event the Husband fails to remove all items, the Wife shall be at liberty to have the items removed and dispersed of and any expense associated therewith shall be paid from the Husband’s share of the proceeds of sale of the property.
5.The Wide have liberty to apply on short notice in the event the Husband fails to comply with order 2 herein.
6.The Wife’s Application in a Proceeding filed on 29 September 2021 be dismissed.
7.Orders 9 and 11 of the chambers orders made on 1 October 2021 be discharged and otherwise the orders for the preparation of parenting matters listed for final hearing on 19 April 2022 remain in full force and effect.
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 Sadek & Sadek has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE BENDER:
INTRODUCTION
This is an Application by the Wife seeking to enforce final property orders made in this matter on 9 September 2020.
BACKGROUND
Final property orders were made in this matter on 9 September 2020 (“the orders”). The orders required payment by the Husband to the Wife in the sum of approximately $220,000 (plus 50 per cent of some outstanding rates) (“the payment”) in order for him to be able to retain the former matrimonial home at B Street, Suburb C (“the property”). If the Husband failed to make the payment to the Wife, the order provided that such a failure would result in the Wife having sole use and occupation of the property, the property being sold and the net proceeds of sale being divided equally between the parties.
There were also orders made for the Husband to collect certain items from the property within seven days, which he did not. The Husband maintains this is because he was not allowed to, but the reality is it has not occurred.
Finally, the orders also required the Husband to organise for the removal of various items that were in and around the property, and, if he failed to do so, there were orders made in relation to how to address that issue, namely that the Wife was at liberty to arrange the removal of those items into storage, for the costs of same to be paid in advance, for the Husband to have access to his items and for the Wife to be reimbursed those costs within 30 days of the sale.
Ultimately, the Husband was not in a position to make the payment to the Wife. There seems to have been some communication between the parties soon after the final orders were made about the property being sold, but no agreement could be reached. Both parties then took no active efforts to have the property sold.
The Wife was initially living in the property but she vacated it in May 2021 when she found more suitable accommodation.
In addition to the order for the Wife to have sole use and occupation of the property, there was also an intervention order that prevented the Husband from attending or occupying the property. It would appear that either the Husband managed to vary the intervention order or the intervention order lapsed.
Be that as it may, as at 1 December 2021, the intervention order preventing the Husband from being able to attend upon the property was varied or vacated, after which time the Husband has immediately moved himself back into the property. He did not realise that the orders of this Court dated 9 September 2020 giving the Wife sole use and occupation of the property meant he could not move back into the property as an order for sole use and occupation does not require that person to actually live in the property.
There were delays in the Wife bringing this Application. I am now satisfied this in part was because it was very difficult to attend to all the outstanding matters necessary to prepare the property so it could be listed on the market for sale.
The Wife filed the current proceedings on 29 September 2021 seeking the orders of 9 September 2020 be enforced, the property placed on the market for sale and that the default provisions in relation to the equal division of the net proceeds of sale be put into effect.
It is the Wife’s evidence that in order for this to take place, she needs to have control of the sale of that property because there will be real difficulties in being able to work cooperatively and quickly with the Husband in order to effect the sale.
The Husband is seeking to remain in the property until, to quote him, “at least April next year,” because he wants to fix it up, and then he wants a say in the manner in which it is marketed and sold.
There is no doubt that the property is in very poor condition. Whilst there is an argument as to whether it has deteriorated in the last several months whilst the Husband has been living in the property, I am satisfied the property was never in great condition. I am also satisfied that it is clearly in both parties best interests for this property to achieve its maximum value. How to achieve this will be guided by the selling agent who may well say, “It is going to make more money being sold as a knock-down than it could achieve if repairs were effected as the cost of such repairs will exceed any increase in value.”
The orders sought today by the Wife are that she have sole responsibility for the sale of the property, the Husband vacate the property and once he has vacated the property he be restrained from coming within 200 metres of the property and that otherwise the Husband pay the costs incurred by the Wife in having to bring this application.
In relation to the substantive application, after having heard the submissions from all parties, I am going to accede to the Application that has been brought today by the Wife. The Husband’s proposal he be permitted to remain in the property for another 15 months in order to get the property into a condition to sell is not a realistic proposal. The Husband does not have the finances or skills needed to repair the property. Neither party is paying the mortgage on the property. Finally, both parties need to have this matter finalised and to be able to move on with their lives.
Orders will be made that the Wife have sole conduct of the sale and that the Wife have the power to sign all documents on behalf of the Husband. In relation to the Husband vacating the property, I am in agreement that the only way the sale will proceed is if I do make that order. I am however going to be more generous than the seven days that is proposed by the Wife in relation to the time the Husband has to vacate the property. I am going to make an order that on or before 14 January 2022, the Husband vacate the property.
I am going to make an order that, upon the Husband vacating the property, he be restrained by injunction from residing at, going to or remaining within 200 metres of the property.
I am going to make an order that prior to the Husband vacating the property, he remove all personal items from the property. In the event he fails to remove his personal items, and by that I include any old vehicles and other paraphernalia that are currently on the property, then the Wife shall be at liberty to have the items removed and disposed of and any expense associated therewith shall be paid from the Husband’s share of the proceeds of sale of the property.
Finally, I am going to make an order that the Wife have liberty to apply on short notice in the event the Husband fails to vacate the property by 14 January 2022.
In relation to the Wife’s Application that the Husband pay her costs of this Application, I note that the Wife’s solicitor has indicated the Wife will no longer pursue that part of her Application. In the circumstances where there has been considerable delay in the Wife bringing this Application, I agree that it is appropriate that each party bear their own costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Associate:
Dated: 2 March 2022
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