SIMPSON & SIMPSON

[2018] FamCA 337

FAMILY COURT OF AUSTRALIA

SIMPSON & SIMPSON [2018] FamCA 337

FAMILY LAW – ENFORCEMENT OF ORDERS – where final orders provided for the wife to give vacant possession of a property – where the wife has not vacated the property – where the wife previously gave an undertaking that she would provide vacant possession – where the husband makes an application pursuant to rule 20.54 of the Family Law Rules 2004 (Cth) that a warrant of possession issue requiring the respondent wife to vacate the real property and give vacant possession of the land to the husband – where the husband seeks a stay of the operation of the warrant – order that the warrant be made – order that the warrant be stayed until 8 May 2018.

FAMILY LAW – COSTS – order for costs against the wife – order that the wife pay the husband’s costs of these proceedings fixed in the sum of $5,776.00, such sum to be paid from the wife’s share of the proceeds of sale of the property.

Family Law Act 1975 (Cth)s 117
Family Law Rules 2004 (Cth) r 20.54

APPLICANT: Mr Simpson

RESPONDENT: Ms Simpson

FILE NUMBER: MLC 8379 of 2016

DATE DELIVERED: 27 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 27 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Marchetti

SOLICITOR FOR THE APPLICANT: Peter Szabo Family Law

THE RESPONDENT: No Appearance

Orders

1. The Marshal and all officers of the Australian Federal Police, for the purpose of giving effect to the Order of this Court made on 22 August 2017, requiring MS SIMPSON to vacate the property situate at and known as B Street, Suburb C, in the Australian Capital Territory (“the property”) ARE DIRECTED with such assistance as they may require and if necessary by force to enter upon the property and cause MS SIMPSON to vacate the property and give vacant possession of the land to MR SIMPSON.

2. That Order 1 hereof, with respect to the warrant for possession of the property, be stayed until 12 noon on 8 May 2018 or further Order of the Court.

3. That the wife pay the husband’s costs of these proceedings fixed in the sum of $5,776.00, such sum to be paid from the wife’s share of the proceeds of sale of the property.

4. That all previous costs orders be discharged.

5. That the Application in a Case filed 23 March 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simpson & Simpson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8379  of 2016

Mr Simpson

Applicant

And

Ms Simpson

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court today upon the application in a case of the husband filed 23 March 2018.  That application is supported by his affidavit filed 22 March 2018. 

2. The application of the husband is that pursuant to r 20.54 of the Family Law Rules 2004 (Cth) that a warrant of possession issue requiring the respondent wife to vacate the real property at B Street, Suburb C in the Australia Capital Territory and give vacant possession of the land to the husband.

3. The husband relies upon the affidavit of service of Mr E filed 6 April 2018 which confirms that the wife was served with the application in a case, a copy of the husband’s affidavit sworn 22 March 2018 and a covering letter from the husband’s lawyers dated 23 March 2018 which is Exhibit H1, those documents having been served by hand on the wife on 22 March 2018.  Having regard to that document, I am satisfied that the wife has had notice of the application before the Court.  That application was originally listed before me on 23 March 2018.  That day I made orders listing the matter for hearing today. 

4. Order 3 of the orders dated 23 March 2018 provides that the wife or her legal representative personally attended Court on the adjourned date.  Orders were made requiring that the husband serve the wife with a sealed copy of those orders and his application.  The affidavit of Mr E to which I have already referred confirms that service of the documents required pursuant to my orders of 23 March 2018 has been affected. 

5. The wife was called in the Court precincts at the commencement of this hearing.  She did not respond to the call.  Notwithstanding the orders I made on 23 March 2018 that she personally attend this hearing, neither the wife nor any legal representative on her behalf has appeared at Court this day.  I am satisfied that the wife has had notice of the current application and been afforded procedural fairness. I am satisfied that it is appropriate that the matter proceed in her absence.

6. The matter has a long history before me.  The matter originally came before me in August 2017.  At that time the husband was seeking orders for final property settlement.  The wife did not participate in those proceedings.  As a result, on 22 August 2017, I made final property orders on an undefended basis and published reasons for judgment.  There is no appeal against those orders.

7. Paragraph 1 of those orders required that the wife provide vacant possession of the Canberra property to the husband by 22 October 2017.  That time has long since passed.  In addition, the final property orders provided that the property in Canberra be sold out of Court and that the husband have the conduct of the sale.

8. Paragraph 4 of the orders provides that upon completion of the sale of the Canberra property, the proceeds be applied first to the payment of costs, commissions and expenses of sale, second to discharge the mortgage and third for the balance then remaining to be divided as to 50 per cent to the husband and the balance remaining to be applied first to the discharge of the liability affecting the wife’s motor vehicle and the balance thereafter to be paid to the wife. 

9. Due to the failure of the wife to provide vacant possession of the Canberra property, the husband caused a Contravention Application to be filed on 19 January.

10. On 15 February 2018 I made orders for a warrant to issue for the arrest the wife.  That warrant was executed and the following day, being 16 February, the wife was brought before the Family Court in Canberra.  There was a video link and hearing on 16 February 2018. 

11. That day the wife gave an undertaking to the Court to give vacant possession to the husband of the property in Canberra by 4 pm on 16 March 2018.  In order to facilitate the wife giving such vacant possession, an agreement was reached between the husband and wife which is reflected in paragraph 3 of the orders I made that day.

12. That order provides:

    That by 4.00pm on 20 February 2018 the husband pay or cause to be paid to the wife the sum of $8,000 to be applied by her towards her relocation expenses, the husband to be reimbursed that sum from the wife’s share of the proceeds of sale of the Suburb C property pursuant to Order 4(c)(ii) of the orders dated 22 August 2017.

13. The wife, notwithstanding the undertaking given by her that day, has not provided vacant possession of the Canberra property.  The husband, in his affidavit, filed 22 March 2018, deposes as to the events that followed the orders made by me on 16 February 2018.  He deposes at paragraph 13 of that affidavit that he transferred the sum of $8,000 to the wife to assist her with her relocation costs.  He deposes as to telephone communication with the wife regarding progress of the matter.

14. The husband deposes as to discussions with the wife about furnishings in the property and as to the wife’s intention.  At paragraph 15 of the affidavit the husband deposes that the wife indicated her intention to return to her home of birth in Eastern Europe to start a new life.  Further he deposes that the wife has communicated with real estate agents regarding the proposed sale of the property.  By 12 March 2018 the husband deposes that the wife had indicated a wish to move to Melbourne to live closer to the children of the marriage. 

15. Notwithstanding the discussions between the parties and the positive indications from the wife of her intention to comply with the orders of the Court by 16 March 2018, being the date she was to provide vacant possession of the property, she remained at that property. 

16. Submissions have been made on behalf of the husband this day that communication between the parties has continued.  The wife, seemingly, has oscillated between a position of agreeing to comply with orders that she provide vacant possession of the property to a position where she has now returned to Canberra and remains in occupation of the property.  It is against that backdrop that the husband now seeks that a warrant issue to enable him to be provided with vacant possession of the property so that he can progress the matter and achieve a final property settlement, as was envisaged when I made those orders in August 2017.

17. The husband seeks a stay of the operation of the warrant.  The effect of such stay will be to provide the wife with an additional week to make appropriate arrangements to vacate the property in an orderly fashion without the necessity of a marshal of the Court having to give effect to the warrant.  Having regard to the history that I have referred to, I am satisfied that the time has come for such warrant to issue.  The time has long past for the wife to have provided vacant possession as was originally envisaged in the orders I made in August 2017.

18. Those orders provided that the wife provide that vacant possession by 22 October 2017.  The husband has had applications before the Court this year since 19 January 2018, seeing to implement the orders made in August of 2017.  The wife has, during the course of those proceedings, at various stages indicated her willingness to agree to cooperate with that process.  Indeed, she has given an undertaking to the Court that she would provide vacant possession by 16 March 2018.  Again, she seems to have failed in that obligation and has not complied with the orders.  She has not complied with the undertaking given by her.  In those circumstances I am satisfied that it is appropriate that orders be made in the terms of the minute that is sought on behalf of the husband.

19. I am also asked to make an order as to costs. I have previously made orders reserving costs, those orders being 15 February 2018 when costs were fixed and reserved in the sum of $1,939. On 23 March 2018 I made an order fixing and reserving costs in the sum of $1,467. I am told that costs of this day total $1,185 and also that there were costs incurred at the mention hearing on 16 February 2018 in the same sum. What is sought today is that I fix costs in the sum of $5,776. The effect of that would be a discharge of the previous orders reserving costs. The basis for that application is that these proceedings have been necessitated as a result of the wife’s noncompliance with orders of the Court. I have already referred to the history of those orders and the history of the wife’s noncompliance. The usual position with respect to costs is that set out in s 117(1) of the Family Law Act 1975 (Cth). That is, that each party to proceedings under the Act should bear his or her own costs. Section 117(2A) of the Act sets out the matters to be taken into account in determining whether there should be any departure from the usual principles; they are the circumstances that would justify an order for costs. The provisions of s 117(2A) of the Act that are relied upon by the husband are those set out in subparagraphs (c) and (d).

20. That is the conduct of the parties and the failure of a party to the proceedings to comply with previous orders of the Court.  It is evident from the history which I have provided that there has been ongoing noncompliance by the wife with orders of this Court, particularly the orders made on 22 August 2017 and also the undertaking and orders made on 16 February 2018.  I am satisfied, having regard to that history, that an order for costs is warranted. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 27 April 2018.

Associate: 

Date:  27 April  2018