Soma & Soma
[2024] FedCFamC1F 815
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Soma & Soma [2024] FedCFamC1F 815
File number: SYC 9076 of 2022 Judgment of: CAMPTON J Date of judgment: 20 November 2024 Catchwords: FAMILY LAW – ENFORCEMENT – Where the husband as the trustee for the parties seeks to facilitate the enforcement of mechanical orders the sale of real property – Where the wife concedes that she has not complied with the orders facilitating the sale – Where orders are made permitting the wife a reasonable period to vacate the property, for husband to thereafter have exclusive occupation of the property in his capacity as trustee for the parties and for warrant for possession in the event the wife fails to vacate – Orders made for the wife to pay the husband’s costs of the enforcement application. Legislation: Family Law Act1975 (Cth) ss 79, 90J, 105, 109A, 114(3), 117(1), 117(2), 117(2A)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 11, r 11.07(e) and r 11.62
Cases cited: Ramsey & Ramsey (1983) FLC 91-301; [1982] FamCA 42 Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 20 November 2024 Place: Sydney Solicitor for the Applicant: Mr Karras, Karras Partners Lawyers The Respondent: Litigant in person ORDERS
SYC 9076 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SOMA
Applicant
AND: MS SOMA
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.As between the husband and the wife, from 25 January 2025, the husband, in his capacity as trustee for the parties for the sale of the property at B Street, Suburb C, NSW (“the Suburb C property”), shall have exclusive occupation of that property, an order for possession of the Suburb C property being made in his favour to take effect from 25 January 2025.
2.As and from 25 January 2025, the wife is restrained from being upon or returning to the property, save and accept with the consent of the husband in his capacity as trustee for the sale of that property in writing.
3.The wife be restrained from directly or indirectly communicating with any prospective purchaser, any selling agent nominated by the husband, the conveyancing solicitor instructed by the husband and any other person referable to the marketing and presentation of the Suburb C property for sale.
Enforcement
4.In the event the wife fails to vacate the Suburb C property by 25 January 2025, pursuant to r 11.55(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) a Warrant for Possession, authorising an enforcement officer to enter the Suburb C property and give possession of the property to the Respondent be issued forthwith.
Costs
5.The wife shall pay the husband’s costs of the Application for Enforcement filed 18 November 2024 fixed in the sum of $5000 from her share of the proceeds of sale of the Suburb C property at the time of the completion of that sale.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an Application for Enforcement of property adjustment orders pursuant to s 79 of the Family Law Act1975 (Cth) (“the Act”) filed Mr Soma (“the husband”) on 18 November 2024. The primary consent property orders adjusting property between the husband and Ms Soma (“the wife”) were made on 21 December 2023. This is the second Application for Enforcement of the primary s 79 orders filed by the husband.
BACKGROUND
The husband and the wife married in 2006 and separated on 7 June 2022. An order for divorce was made in mid-2024. There are four children of the marriage, W born 2009, X born 2021, Y born 2014, and Z born 2017.
The husband filed an Initiating Application on 20 December 2022 seeking orders regulating the parenting of the children. The wife filed a Response to an Initiating Application on 6 February 2023. A challenge was made to a financial agreement entered by the parties on 19 October 2006. The parties entered a termination agreement pursuant to s 90J of the Act on or about 14 December 2023.
By way of the final consent property adjustment orders made 21 December 2023, the parties’ home at B Street, Suburb C (“the Suburb C property”), occupied by the wife and the children, was to be sold by auction to occur in the third week of a month in early 2024. A reserve price for the purposes of the auction at $14.5 million was recorded in the consent orders, or such other reserve price as agreed between the parties. The wife was to receive from the proceeds of the sale the sum of $9.95 million together with a sum equivalent to 50 per cent of the uplift in any value achieved on the disposal of the property for a consideration of greater than $14.5 million. The s 79 orders further provided for the husband to pay to the wife an additional sum of $550,000 in cash in a short period of time after the making of the orders and to provide an $80,000 motor vehicle. Relevantly, for the purposes of this enforcement application, the consent orders provide as follows:
6.The wife shall be entitled to reside in the home throughout the sale period including during the marketing and inspection of the property provided the wife ensures during that period that the property is clean, tidy and well‑presented for all purchaser inspections and that she will make the property available for inspection as requested by the selling agent at all reasonable times.
On 26 March 2024 the proceedings were listed for case management of the parenting dispute. The husband contended that the wife had engaged in conduct that obstructed the auction sale of the Suburb C property and had failed to comply with the primary s 79 orders to facilitate that disposal.
On 23 July 2024 the husband filed an Application for Enforcement seeking further mechanical orders to progress the sale of the Suburb C property and as to the wife's occupation of that property. That Application for Enforcement was listed for hearing before me on 30 August 2024.
At the enforcement hearing on 30 August 2024, after an extended period of negotiation, the parties entered further consent orders whereby the husband was appointed trustee for the parties for the purposes of the sale of the Suburb C property pursuant to the primary orders made 21 December 2023. The orders recorded a proposed auction being listed in late 2024, with a reserve price of $15 million. Again, pejoratively, Order 3 as made on a consensual basis on 30 August 2024 provided as follows:
3.The Wife is to permit the Agent, and any prospective buyers of the property to attend for open inspections and or private inspections of the property, before auction, upon the Agent giving the Wife at least 12 hours’ notice by email to her email address and by text to her mobile phone; when the Wife shall vacate the property.
An auction sale was scheduled for late 2024. It did not proceed due to lack of inquiry.
On or about late 2024, on the advice of the listing agent in his capacity as trustee for sale of the property for the parties, the husband reduced the estimated selling price of the property in anticipation of another auction scheduled for late 2024 to be $13 million. The first open home with the reduced estimated selling price occurred in late 2024. The husband gives evidence of three parties attending for the purposes of inspecting the home on that day and being turned away in circumstances where the wife would not permit the interested parties or the agent access to the property.
The husband gives evidence that a short time later interest was expressed by another buyer to inspect the property. That buyer, together with the agent, were also refused access by the wife.
The husband's affidavit in support of the enforcement application exhibits emails requesting that the wife facilitate and otherwise allow the inspections to occur in anticipation of the latest auction scheduled for late 2024. He contends there has been no material response to those emails. The next auction will be the fifth scheduled auction of this property. It is against that background that the husband's current Application for Enforcement, filed on 18 November 2024, has been listed for urgent hearing today.
THE APPLICATION FOR ENFORCEMENT
The husband, by way of his application, initially sought the following orders:
1. That pursuant to Rule 11.62(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), the Marshal of the Court or their delegate is appointed as the Enforcement Officer to enter and remove from the property the respondent wife in these proceedings, [Ms Soma], by force if necessary.
2. That pursuant to Rule 11.62(c) of the Rules, the Enforcement Officer (or delegate) take all steps as may be required to prevent the wife from interfering with the applicant husband having exclusive use and occupancy of the property including if necessary, barring and prohibiting the wife from re-entering the property at any time.
3. That all Officers of the Australian Federal Police and all Officers of the NSW State Police be directed, requested and authorised to serve and execute the Warrant issued to the Enforcement Officer pursuant to these Orders.
4. The husband is forthwith granted exclusive occupancy of the property.
5. The wife is restrained from returning to the property at any time after the date of these Orders.
6. The wife be restrained from directly or indirectly communicating with any prospective purchaser, any selling agent nominated by the husband, the conveyancing solicitor instructed by the husband and any other person referable to the marketing and presentation of the property for sale.
7. That the wife pay the husband’s costs of and incidental to this Application on an indemnity basis.
(As per the original)
The wife appeared in person today. It is her case that she was facilitating the inspections and marketing of the property in anticipation of the auctions until the price was lowered. It is her contention that the property is worth much more than that guided by the agent. She proposed that the parties “wait until the market improves before putting the property to auction”. She concedes that she has obtained at least general advice from her solicitor as to enforcement but has not obtained advice in relation to this specific application. She identifies that she lives in the property with the parties’ four children.
To her credit, the wife concedes that she has not facilitated inspections of the property, or the marketing of the property, after being advised of the price reduction. She has made it clear that she had no intention to leave the property in the foreseeable future.
Over the course of the hearing today, each of the parties has had the opportunity to reconsider their positions.
The husband successfully obtained leave to amend, absent objection of the wife, the terms of his orders sought in the Application for Enforcement filed on 18 November 2024, to provide that the wife and children could continue to have the opportunity to occupy the Suburb C property until 24 January 2025, in anticipation of the auction being rescheduled to another date.
The wife then said in that circumstance she does not oppose orders being made:
(a)Firstly that, for the purposes of facilitating his role as trustee for sale, the husband, as and from 25 January 2025, having the exclusive occupation of the Suburb C property as against the wife, and the wife not returning to that property from that time; and
(b)For an order for possession of the property to lay in chambers, to be activated if necessary.
CONSIDERATION
Section 105 of the Act empowers the Court to enforce its decrees. To enforce or refuse an order is discretionary (Ramsey & Ramsey (1983) FLC 91-301). Section 109A of the Act specifically empowers the Court to make rules of the Court in respect of enforcement. Chapter 11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) identifies, by way of r 11.07(e), that an injunctive order may be made in aid of enforcement of an obligation pursuant to a decree, and r 11.62 identifies that an order for possession may be made enabling an enforcement officer to enter and remove from a property a specified person to facilitate either a substantive order or an order by way of enforcement.
Enforcement applications are not an opportunity to revisit the substance of the order sought to be enforced. No application has been made here to vary the prior order sought to be enforced and as such the order is valid and binding until set aside.
The injunctive power by way of s 114(3) of the Act is capable of use in aid of enforcement. The considerations as to an injunction in aid of enforcement require the injunctive order to be just and convenient. The merits of the husband's application, seeking that the Court to enforce its own orders, are self-evident. Prima facie, orders are made with the expectation they will be subject to compliance.
The husband correctly recognises the prejudice occasioned to the wife and the children in the event the orders were enforced in the terms sought initially in his Application for Enforcement filed on 18 November 2024. To his credit, he has amended that application to permit the wife and the children sufficient opportunity, albeit that they have had this opportunity on a number of occasions to date, to conduct their affairs to enable the orderly vacation of the Suburb C property.
To the wife's credit, she recognises the authority of the Court and the necessity of parties to comply with its orders. In the event the wife has issue with the decisions made by the husband in his fiduciary capacity as trustee for sale of the property, she has other remedies she may pursue as she is advised.
In all the circumstances, I find weighing the above matters that the agreed position of the parties, it is just and convenient to make the amended enforcement orders sought, being a proper exercise of discretion pursuant to s 105 of the Act. Such orders will be made.
COSTS
The husband seeks an order for costs of and incidental to his Application for Enforcement filed on 18 November 2024, determined today, on an indemnity basis. He identifies his costs incurred on an indemnity basis to be $8128.89 and, on a scale basis, to be $2919.01. The wife opposes the husband's application for costs.
The relevant principles as to costs are well settled. While the starting point is established by s 117(1) of the Act, in that each party pay their own costs, s 117(2) of the Act allows the Court to make such orders as the costs that it considers just, if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must be there more than one factor satisfied. Rather, any one factor may be sufficient.
The husband bears the onus to establish circumstances which justify departing from the position of each party paying their own costs and for the making of a costs order in his favour. If he establishes there are justifying circumstances, the next consideration is the basis upon which costs should be paid. I shall refer broadly to the s 117(2A) factors as are relevant and engaged here.
The wife contends that her financial circumstances, when compared with those of the husband, militate against a making as to an order for costs. I do not accept that submission. The wife has received substantial funds to date, by way of payments pursuant to s 79, made by the husband as identified in the reasons earlier, and will receive the sum of not less than $9.95 million from the proceeds of sale of the Suburb C property.
These proceedings are by way of enforcement. On one view, in the event the wife had complied with the primary orders made adjusting property on 21 December 2023 and the orders facilitating the sale of the Suburb C property as made on 30 August 2024, the current enforcement application would not be necessary. This factor attracts significant weight.
When considering costs, it is also necessary to have regard to the provisions of s 67 and s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Those sections require parties to conduct proceedings, including attempting to negotiate any resolution of proceedings and particularly by way of enforcement, in a way that is consistent with the overarching purpose of the Rules. That overarching purpose includes the just resolution of disputes as inexpensively and as quickly as possible at a cost that is proportionate to the importance and complexity of the matters in dispute. These principles are particularly poignant in this particular matter.
The amalgamation of these factors establish justifying circumstances to warrant an order for costs being made against the wife in the husband's favour.
As to the basis of costs, the husband has not adduced into evidence the costs agreement entered with his solicitor grounding the quantum of the indemnity costs he has incurred or an ability to identify by way of comparison the value of particular items as to cost when compared with the scale as provided for by the Rules.
That said, it is also important to consider that the circumstances of the Application for Enforcement have evolved over the course of the hearing today. The husband and the wife have both taken sensible and, in my view, appropriate courses to navigate a pathway going forward to emerge from the current mire in which they find themselves by way of enforcing the primary orders made in December 2023 adjusting property.
In my view, it would not be just in those circumstances to require the wife to meet all of the costs incurred by the husband on the enforcement application by way of compensation. The words in s 117(2) of the Act provide that the Court may “make such an order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.” This permits the fashioning an order that is apt in the circumstances of the particular case (Sfakianakis & Sfakianakis (2019) 59 Fam LR 419).
Adopting a broad-brush approach, and considering the matters identified earlier in these reasons, it is just that the wife pay the husband's costs of the Application for Enforcement in the sum of $5,000.
The husband appropriately sought that any costs order be paid from the wife's share of the sale of the Suburb C property, identifying that an order in not dissimilar terms was made on 30 August 2024. An order will be made for the wife to pay the husband’s costs of the Application for Enforcement filed on 18 November 2024 fixed in the sum of $5,000, from her share of the proceeds of sale of the Suburb C property at the time of the completion of that sale.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 28 November 2024
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