SALAH & SOLH (No.2)

[2014] FCCA 3177

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALAH & SOLH (No.2) [2014] FCCA 3177

Catchwords:
FAMILY LAW – Contravention application – failure to comply with orders – attempted service – costs.

Applicant: MS SALAH

Respondent: MR SOLH

File Number: DGC 1777 of 2012

Judgment of: Judge Jones

Hearing date: 8 December 2014

Date of Last Submission: 8 December 2014

Delivered at: Melbourne

Delivered on: 8 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Randles

Solicitors for the Applicant: No appearance

ORDERS

1. Interim orders are made in terms of minutes dated 8 December 2014, marked “Exhibit A” and placed on the Court file.

2. The solicitors for the Applicant send a clean, certified copy of these Orders within 7 days by email in word format to the following email address: [email protected].

3. The tenants permit the valuer or agent for the wife to attend upon the property F in order for a valuation to be conducted.

4. The sum of $16,500.00 be held in trust with the wife’s solicitors trust account until further order.

5. The applicant serve a sealed copy of this order on the respondent via ordinary post to the following address Mr Solh, PO BOX [omitted] VIC.

6. The applicant serve a sealed copy of this order on the respondent to his email address at [omitted]@hotmail.com.

7. The husband pay the costs of the wife thrown away this day.

8. The proceeding is adjourned to the Duty List on 13 April 2015 at 9.45am.

   IT IS NOTED that publication of this judgment under the pseudonym Salah & Solh (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

DGC 1777 of 2012

MS SALAH

Applicant

And

MR SOLH

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I am going to briefly give a short decision in relation to this matter which has just come before me in a Duty List.

2. This is an application brought by the wife, Ms Salah, in relation to property orders that I made on 11 September 2014.  Pursuant to those orders, the wife was entitled to make an election within 30 days of my orders as to whether she wished to have the former matrimonial home transferred into her name and then once she had made that election, in 60 days to transfer a certain sum to the husband.

3. The wife has filed a contravention application on the basis that the husband, who is Mr Solh, has failed to comply with those orders – order 2 in particular – in that he has twice, during the 30 day period, refused representatives from her bank to enter into the property and inspect the property for the purpose of evaluation so that she was able to decide whether she should exercise her election.

4. I am satisfied, on the basis of the attachments to the wife’s affidavit that she filed with her Contravention Application on 23 October 2015, that, in fact, the bank was denied access by Mr Solh twice during that period.  There are emails from the Commonwealth Bank attached to her affidavit indicating to that effect.  I am satisfied that the failure of the husband to allow the wife’s lender to inspect the property had the effect that she was precluded from making a reasonable and informed decision in relation to her election that she was allowed under order 2 of the orders that I made. 

5. I am satisfied that what I have before me is an issue of the machinery provisions of the orders and not a question of change in substance.  The husband has sent an email 7 December 2014 to my chambers – but not to the wife – indicating that he has deposited a sum of $16,500 into her bank account.  That being the sum that he would have been required to pay under my orders if the wife had not exercised her election.  In other words, he has decided that the wife, having failed to exercise her election and make a payment to him, he can complete the orders by making that payment. 

6. The email says that he is visiting ailing parents overseas and nothing more.  He is opposed to any application because there was not any service of the application on him.  I have been provided with a copy of an affidavit of attempted service by a process server appointed by the wife to serve to Mr Solh.  He attempted twice to serve Mr Solh with success.  I am informed by the wife’s solicitor that the material; that is, the Contravention Application and her affidavit and letter, was sent to his postal address and he was also sent a sms text message by the wife indicating that the matter would be on foot today.

7. I am satisfied that in view of the failure of attempted service was not the wife’s fault but simply because the husband either was not there or had decided to avoid any service – and I say that having regard to the history of the matter, which I am very much aware of.  In the circumstances, I will make the following order that I permit substituted service by post. 

8. The second issue I then have to decide is what to do about this case.  The wife has, in effect, been precluded from exercising her election under an order of mine, because of the husband’s actions.  I am satisfied that by engaging in this conduct, the husband has deliberately undermined the orders of this Court.  I am satisfied that his actions have resulted in a contravention of the orders of this Court because the wife has been precluded from taking reasonable and sensible steps to decide whether to make her election.

9. I, therefore, am satisfied that I should make the following orders that the wife proposes.  The first are in relation to amending my orders on 11 September 2014.  That, in effect, the amendments to the orders will be the reference to the 60 days in order 1 and the 30 days in order 2 becomes one of a reference from an order made today.  So the wife is placed in the same position she was on that date.  Also, I will make an order, because I am advised by the wife’s solicitor that there are tenants in the husband’s property, that the tenants permit a valuer or an agent of the wife to inspect the property and that they be provided with copies of these orders. 

10. The next order is that the sum of $16,500, which Mr Solh sent and deposited in the wife’s bank account, be held on trust by the wife’s solicitors until the next time we come before the Court. 

11. I have considered the application for a costs order. 

12. I am satisfied that by way of the husband’s conduct, the wife has been forced to come to Court today and that he should, therefore, pay her costs.  However, I would need to have proper material on the costs that have been incurred and look at the schedules.  We can decide on that next time.  The costs will be determined at the next Court hearing date.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 7 August 2015