Sanders & Sanders (No 4)
[2023] FedCFamC1F 6
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sanders & Sanders (No 4) [2023] FedCFamC1F 6
File number(s): SYC 7660 of 2020 Judgment of: CHRISTIE J Date of judgment: 13 January 2023 Catchwords: FAMILY LAW – EX PARTE ORDERS – Where final property orders were made for the sale of a property – Where the wife was appointed as trustee for the sale of the property – Where a mortgage in the sole name of the husband prevents settlement occurring on the scheduled date – Where the wife seeks urgent ex parte orders to enable settlement of the property to proceed as scheduled. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 2.34, 5.11. Cases cited: Ansah v Ansah (1977) 2 WLR 760.
Sieling v Sieling (1979) FLC 90-627.
Stowe & Stowe (1981) FLC 91-027.
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 13 January 2023 (ex parte) Place: Sydney The Applicant: No appearance The Respondent: No appearance ORDERS
SYC 7660 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SANDERS
Applicant
AND: MR SANDERS
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
13 JANUARY 2023
THE COURT ORDERS THAT:
1.Pursuant to s 106A(1) of the Family Law Act 1975 (Cth) and on behalf of the respondent husband the applicant wife is appointed to complete and execute the Westpac “Request to vary security form”, to effect the sale of the property at C Street, Suburb E, NSW being the whole of the land contained in folio identifier … and that document shall be given full validity and operation.
2.The balance of the Application in a Proceeding filed 10 January 2023 be adjourned for mention before the Honourable Justice Brasch to 24 January 2023 at 10.00 am.
3.The respondent Husband be directed to file a Response and affidavit to the Application in a Proceeding by 12.00 pm 20 January 2023.
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 the pseudonym Sanders & Sanders has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an ex parte Application bought by the applicant wife whose name is Ms Sanders.
The respondent husband to the Application is Mr Sanders. Mr Sanders has not been served with a copy of the wife’s Application and the wife asks that her Application be dealt with on an ex parte basis.
The wife’s Application in a Proceeding was filed on 10 January 2023. That Application was filed against a background where, on 7 April 2022, the Court made final orders in respect of property adjustment as between the applicant and the respondent. Those orders provided for payment by the husband to the wife and in default, for the sale of the property C Street, Suburb E. The husband did not comply with the order for payment to the wife. Those orders were the subject of an appeal. That appeal was dismissed. The wife bought an Application for enforcement of the financial orders which Application was heard and determined and orders made appointing her the sole authority in respect of sale of the Suburb E property. Those orders came into force on 24 November 2022.
After some delay, the Suburb E property has been sold. In order for that property transaction to complete, it will be necessary for a mortgage in the sole name of the husband to be discharged. On 20 December 2022 the solicitors who act on behalf of the wife wrote to the husband seeking that he sign the necessary paperwork. The husband did not. On 28 December 2022 the solicitors acting for the wife again wrote to the husband in respect of the paperwork. That paperwork remains outstanding.
A conveyancer has carriage of the sale of the Suburb E property. That firm of conveyancers, TT Conveyancers, require completion of a form entitled “Westpac Bank Request to Vary Security” form. The purpose of that form is to allow for the discharge of the mortgage secured over the Suburb E property.
The wife’s affidavit suggests that that form must be completed and returned to the conveyancer no later than 15 January 2023. Her affidavit says that, in the event the form is not received by that date, settlement will be delayed.
The wife filed an Application on 10 January 2023. As a consequence of the fact that the Court was in recess, that Application has just come to the attention of a Judge. The wife seeks that this Application be dealt with ex parte. It is an unusual circumstance for the Court to consider the making of an order in the absence of the parties. The Court does have the power to dispense with service of an Application. Such power is to be exercised only when the circumstances require it. The Federal Circuit and Family Court of Australia (Family Law)Rules2021 (Cth) provide that the Court may proceed without service of an Application. In summary, the rules provide as follows:
(a)Rule 2.34(1) provides that a party who is unable to serve a document may apply without notice for an order to dispense with service of the document, with or without conditions.
(b)Rule 2.34(2) provides that when considering an application under r 2.34(1), the Court may have regard to a number of factors including the nature of the proceeding.
(c)Rule 2.34(3) provides that if the Court orders that service of a document is dispensed with, the document is taken to have been served.
The wife in this case bears the onus of establishing to the satisfaction of the Court that the orders that she seeks should be made without notice to her former husband. Rule 5.11 deals with Applications without notice:
An applicant seeking that an interlocutory order be made without notice to the respondent must:
(a) satisfy the court about why:
(i)shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and
(ii) an order should be made without notice to the other party; and
(b)in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including the following:
(i)whether there is a history or allegation of child abuse or family violence between the parties;
(ii)whether there have been any previous proceedings between the parties and, if so, the nature of the proceedings;
(iii)the particulars of any orders currently in force between the parties;
(iv)whether there has been a breach of a previous order by either party to the proceeding;
(v)whether the respondent or the respondent’s lawyer has been told of the intention to make the application;
(vi)whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;
(vii)the capacity of the applicant to give an undertaking as to damages;
(viii)the nature of the damage or harm that may result if the order is not made;
(ix) why the order must be urgently made;
(x)the last known address or address for service of the other party.
In Stowe & Stowe (1981) FLC 91-027 the Full Court of the then Family Court of Australia observed at 76, 258-76, 259 the Regulations make it clear that ex parte orders are to operate only to a specified time, that is, until further order of the Court. The Court is empowered to give directions as to the service of the order and the hearing of an Application for a further order. The Full Court said the following:
Regulation 42 was considered by the Full Court in the case of Sieling (1979) FLC ¶ 90-627, where reference was made, with approval, to Ansah (1977) 2 W.L.R. 760. In that case, the Court of Appeal emphasised that if an order was made ex parte it should be limited in time to the shortest possible period which must elapse before a preliminary hearing could be arranged. It is implicit in the decisions of Sieling (supra) and Ansah (supra) that wherever possible short notice of the proceedings should be given to the respondent:
“The general principles are that the Court must be satisfied that the matter is of such urgency that the applicant's interests (or the interests of the child) can be protected only by an immediate order. It is necessary to balance the likelihood of harm to the applicant against the hardship to the respondent of making an order without hearing him. The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity. An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature that the Court cannot wait even the period of time necessary for short service.''(Sieling (1979) FLC ¶ 90-627 at p. 78,254.)”
In those limited circumstances where it is necessary to make an ex parte order, the onus rests upon the applicant for the injunction both at the ex parte stage and at the later hearing of the matter to satisfy the Court that the circumstances justify the making and continuation of the order, This is so irrespective of whether the respondent formally applies to set aside the order. Counsel for the appellant husband submitted - correctly in our view - that the Court's discretion could miscarry if the onus were put upon the respondent to satisfy the Court that the order should be discharged.
I proceed to note that one of the factors contained in r 5.11(b)(ii) is whether there have been any previous proceedings between the parties and if so, the nature of the proceedings. In this case it is necessary to observe that there have been lengthy proceedings between the parties. It is for this reason that the wife, through the affidavit filed in support of this application, refers to what she has termed the husband’s “obstruction to the sale”. The wife was required to commence enforcement proceedings on 30 September 2022. She was wholly successful in obtaining the orders she sought for appointment as trustee for sale of the Suburb E property. In addition, the wife lists in her affidavit the following other proceedings which have taken place including an Application for recovery orders, an Application in a Proceeding seeking a stay in both property and parenting matters, the husband’s unsuccessful appeal, a further Initiating Application which dealt with both parenting an property matters, an Interim Application dealing with dismissal of the independent children’s lawyer and the previously referred to Enforcement Application.
It is necessary to take into account the particulars of the orders currently enforced between the parties. I pay particular note to the fact that, in a contested hearing before a Senior Judicial Registrar, the wife was appointed sole trustee for sale of the Suburb E property. Without the capacity to execute the document which is required by the bank to discharge the mortgage in the husband’s sole name, she cannot actually discharge her duty as trustee.
The Rules also provide that it is a relevant consideration whether there has been a breach of previous orders by either party to the proceedings. The wife certainly alleges that the husband has been in breach of previous orders. Those orders are yet to be determined and I make no finding in that regard.
Rule 5.11(b)(vi) talks of whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made without notice to the respondent. I take into account the fact that, if the order is made, there is no danger or prejudice to the husband since the transaction is not due to be settled until 10 February 2023. In those circumstances, I will be able to bring the matter back before the Court well prior to 10 February 2023 and the husband can at that stage, if he has an arguable case, seek to discharge the order I make today. I take into account as is required by r 5.11(b)(viii), the nature of the damage or harm which may result if an order is not made. There may be a further delay in settlement. A delay in settlement could result in there being monies payable by the vendors to the purchasers for the delay to settlement.
I take into account under r 5.11(b)(ix) that the order needs to be urgently made because it has come before the Court on 13 January 2023 and action needs to be taken by 15 January 2023. In those circumstances, urgency is established. I therefore propose to make order 4 proposed by the wife in a modified form and bring the matter back for mention before her Honour Justice Brasch on the date where it is already listed. Should the husband wish to discharge the orders I make today or to challenge the other orders sought in the wife’s Application in a Proceeding filed 10 January 2023, he should file a Response and affidavit in support no later than noon on 20 January 2023.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 January 2023
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