Silva and Silva and Anor

[2011] FamCA 95

FAMILY COURT OF AUSTRALIA

SILVA & SILVA AND ANOR [2011] FamCA 95

FAMILY LAW - PROPERTY - interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Silva

RESPONDENT: Mr Silva

2^ND RESPONDENT: Silva Holdings  

FILE NUMBER: SYC 7065 of 2007

DATE DELIVERED: 21 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cook  

SOLICITOR FOR THE APPLICANT: KP Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. Order 3 made by Justice Loughnan on 27 July 2010 be discharged.

2. The husband vacate the property in B (“the property”) within 7 days from the date of these orders.

3. The husband is restrained and is hereby restrained from moving any fixtures from the property.

4. The husband is to list in writing any chattels and other items the husband takes from the property and he is to send that list to the lawyers for the wife within 14 days. 

5. After the expiration of 7 days, the wife is to have exclusive use of the property.

6. The wife have the control of the conveyancing transaction.

7. Orders made by Justice Johnston on 31 August 2010 be varied as follows:

   7.1.Order 1, paragraph 3 will remove reference to the husband; and

   7.2.Any other reference in order 1, paragraph 3 be varied so that any reference to “the parties” will be replaced by a reference to “the wife”. 

8. Each parties’ costs of today be reserved. 

It is noted that publication of this judgment under the pseudonym Silva & Silva and Anor is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7065 of 2007

Ms Silva

Applicant

And

Mr Silva

First Respondent

Silva Holdings

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The orders made 31 August 2010 required the sale of the property and provided what would happen with proceeds of that sale.  I am satisfied on the material provided today by the wife that the property is under threat from a mortgagee. 

2. Orders were made on 27 July 2010, by consent, that allowed the husband to continue to occupy and live in the property.  The husband was ordered to do everything he could to ensure that the property was kept in its then state of repair subject to fair wear and tear.  Orders were also made in July that quotes for the renovation and update of the property be obtained and exchanged.

3. The wife complains in her material that the husband since July last year, has not taken active steps to pursue the orders for the upgrade of the property and for its sale.  An available facility that could have been relied upon for the renovations has been used for other purposes and is no longer available. 

4. The husband today has consented to move out of the property within seven days.  The wife has indicated that she wishes to take over responsibility for the upgrade of the property prior to sale.  The husband says that he can do it for $15,000.  The wife says that she has quotes of about $50,000, advice from an agent that the expenditure of that sum will not over capitalise the value of the property, and will take the risk on a final hearing of establishing to the court that the expenditure of that amount is not an over capitalisation of the value of the property.

5. The husband raises the issue about the adult child of the marriage, D still remaining in the home. It seems agreed that D is aligned with his father and is angry at the fact that his father will be moving out of the house.  The wife’s position is that she would not seek any order in relation to D’s occupancy of the home.  She is content for D to stay in the home until it is sold, but of course he is also free to move if he so desires.   

I certify that the preceding five (5) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 21 February 2011.

Associate: 

Date:  23.2.2011