Sindel and Sindel

[2010] FamCA 610

FAMILY COURT OF AUSTRALIA

SINDEL & SINDEL [2010] FamCA 610

FAMILY LAW – APPEAL FROM DECISION OF REGISTRAR

APPLICANT: Mr Sindel

RESPONDENT: Ms Sindel

FILE NUMBER: SYC 5856 of 2007

DATE DELIVERED: 12 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 12 July 2010

REPRESENTATION

APPLICANT IN PERSON: Mr Sindel

SOLICITOR FOR THE RESPONDENT:

Ms Ryan,

Moira Ryan Lawyers Pty Ltd

Orders

1. That the application of the husband filed 18 May 2010 is hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sindel & Sindel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:       SYC 5856 of 2010

MR SINDEL

Applicant

And

MS SINDEL

Respondent

REASONS FOR JUDGMENT

1. In these proceedings the husband has appealed from a decision by a Deputy Registrar to sign a deed of charge - called in the document itself a deed of agreement between the husband and wife - on behalf of the husband. The circumstances which have given rise to the Deputy Registrar’s decision; a decision which was made pursuant to section 106A of the Family Law Act, is that on 19 August 2009, Fowler J delivered a reserved judgment making orders pursuant to section 79.  Those orders were, in effect, for the sale of two properties and the division of the net proceeds of their sale equally between the parties, by way of splitting orders, and an order for transfer of 50 per cent of the value of the husband’s superannuation to the wife. 

2. The husband appealed.  That appeal has not been heard.  He, however, sought a stay.  On 9 September, in another reserved judgment, Fowler J ordered that there be a stay, but that that stay be conditional upon the husband and wife taking certain steps.  One step was that within 28 days the husband pay $790,000 to the wife by bank cheque.  That sum has been paid.  The second and third steps were by orders were that the wife do everything necessary to transfer to the husband her interest in the two properties that were to be sold at the time the $790,000 was paid.  It is to be assumed that the wife has done that.  However, there are some orders in addition to these which his Honour made which are really the subject of the appeal.

3. The first is that the husband would, simultaneously with the transfer to the husband of the wife’s interest in the properties, provide the wife with a charge over the whole of his interests in both of the pieces of real property in favour of the wife to secure the wife’s rights under the orders he had made, including the wife’s right to payment of any sum to be paid that has not been paid together with interest.  His Honour also, appropriately, with great respect to his Honour, ordered that the charge that the husband was to give should rank second in priority to any mortgage or charge granted by the husband over the property for the purpose of raising moneys so the husband could pay the wife any sums that he was required under the orders to pay.

4. The husband was also restrained from disposing of the properties in question, and the wife was given liberty to apply in relation to enforcement of his charge. Very importantly, his Honour, with great respect to him, sensibly and with some foresight, also ordered that in the event that either party refuses or neglects to sign the documents necessary to effect the orders that he made within 14 days of a written request to do so, the Registrar would be empowered, by section 106A of the Family Law Act, to execute the document or documents on behalf of the party who refused to sign.

5. What happened is the solicitor for the wife drafted the deed of agreement that I have already referred to; the deed of charge, the husband refused to sign it, and wished to advance a different document. When the matter came before the Registrar, pursuant to the order that was made permitting the Registrar to sign the document under section 106A, the husband objected to it, and he argued that the document, that is, the deed of charge, provided much more than necessary to protect the wife.

6. I have read the document; the deed of charge, and the husband has made submissions that support his claim that the deed of charge goes further than necessary to support the wife, and provides the wife with entitlements that the husband says are beyond his Honour’s original intention.  The husband has made these submissions without the benefit of proper legal advice because he is a bush lawyer, and although I am quite satisfied he sincerely believes that his submissions reflect the reality of this deed, on my reading of the deed it is entirely appropriate to protect the wife. There is no more than is absolutely necessary to do so in relation to all of the possibilities that might arise.

7. Now that the wife has the entitlement to be paid a large amount of money, and the husband has all of the land and, in fact, all of the real property, which was to be distributed equally between the parties pending the appeal, the reality is, of course, that if the condition, that is the deed, isn’t executed, there is no stay. The wife can sell the properties by way of enforcement of his Honour’s orders.  However, I am told that the appeal is soon to be heard and the properties would not be able to be sold in time.  In those circumstances, I should deal with the deed.

8. Ms Ryan for the wife said that I do not have jurisdiction to hear any appeal, because the only order that was made was made by Fowler J, and there was no order made by the Deputy Registrar.  All the Deputy Registrar is doing is exercising the power that Fowler J invested in her to sign the deed.

9. I do not agree with this.  I think that the husband was entitled to argue before the Deputy Registrar that the deed that the wife sought to rely upon provided rights to the wife that went beyond the orders of his Honour. In making a decision that the husband’s submissions should not be accepted but that the deed should be signed, and in doing that accepting the wife’s stance, the Deputy Registrar made a decision which is appealable, as of right, to me, and I should therefore hear the appeal.  In hearing the appeal, it is my view that, as I have said, the deed is appropriate that the wife put forward.  It ought properly to have been signed by the Deputy Registrar in the circumstances that the husband has refused to sign it within the time given. I hold, therefore, the signing of the deed by the Deputy Registrar was appropriate, and dismiss the husband’s appeal. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:     

Date:              21 July 2010