Soma & Soma (No 2)
[2025] FedCFamC1F 42
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Soma & Soma (No 2) [2025] FedCFamC1F 42
File number: SYC 9076 of 2022 Judgment of: SCHONELL J Date of judgment: 29 January 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Parenting Orders – Where the Court has previously made orders permitting the wife a reasonable period to vacate the property and a warrant for possession in the event the wife fails to vacate – Where the wife has failed to vacate the home – Where the husband seeks orders for the children to live with the husband until after the execution of the warrant to avoid the children being present at the property – Where there is no appearance or response by the wife – Where the Court is satisfied that there has been service on the wife of the application – Orders made for the children to live with the father for a defined period of time to avoid them being present when the warrant is executed.
FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of single expert – Where the husband seeks orders for the wife to co-sign the letter of instruction, attend interviews, and provide material to a single expert – Where the expert is jointly agreed – Orders made for the wife to co-sign the letter of instruction, attend interviews, and provide material to a single expert to progress the matter.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60 CC(2), 69ZL Cases cited: Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 29 January 2025 Place: Sydney Solicitor for the Applicant: Karras Partners Lawyers The Respondent: No appearance 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:
SCHONELL J
DATE OF ORDER:
29 JANUARY 2025
THE COURT NOTES THAT:
A.The matter was called at 9.30 am and there was no appearance by or on behalf of the respondent.
B.Judgment is reserved to 10.30 am this day.
AND THE COURT LATER NOTES THAT:
C.The matter was called at 10.30 am and there was no appearance by or on behalf of the respondent.
AND THE COURT ORDERS THAT:
1.The children of the marriage:
(a)W born in 2009
(b)X born in 2012
(c)Y born in 2014 and
(d)Z born in 2017
(“the children”) live with the husband from 3.00 pm today, 29 January 2025 until school commences on Tuesday, 4 February 2025.
2.Orders are made in accordance with paragraphs 4, 5, 6 and 7 of the husband’s Application in a Proceeding filed 17 January 2025 as set out hereunder:
4.That the wife or her lawyers forthwith confirm and co-sign the letter of instruction forwarded to [Dr D] on 18 December 2024 and that the wife provide such documents and information required by the expert within seven days of any such request.
5.That the husband and the wife attend upon [Dr D] for such interviews as are nominated by her including but not limited to, 17 and 18 March 2025, and that both parties do all things necessary to ensure that the children similarly attend any required interviews.
6.That leave be granted to the husband’s lawyers to provide [Dr D] with copies of all material produced under Subpoena including the documents produced by [Dr E], Psychiatrist.
7.That leave be granted to the husband to cause four Subpoenas to be issued to any medical practitioners, clinics, hospitals and allied health professionals who have provided or are providing treatment to the wife.
3.Leave is granted to restore the matter to the list on 48 hours’ notice.
4.The costs of the husband are reserved.
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 the pseudonym Soma & Soma has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
Before the Court is the husband’s Application in a Proceeding filed 17 January 2025 seeking parenting orders of a stop gap nature pending the execution of a warrant.
The specific orders sought by the husband are as follows:
1.That the children of the marriage, [W] born [in] 2009, [X] born [in] 2012, [Y] born [in] 2014 and [Z] born [in] 2017 (“the children”) live with the husband from 4:15pm on 24 January 2024 until 3:00pm on the seventh day after the execution of the Warrant for possession ordered by this Honourable Court on 20 November 2024 (“the Warrant”).
2.That the wife be forthwith restrained from discussing with the children or having any discussions in their presence or within their hearing touching upon:-
2.1 The husband’s Application for the issuing of the Warrant.
2.2 The issuing of the Warrant by the Court.
2.3The execution of the Warrant.
2.4Any representation by her that the husband forced or compelled the wife and the children to vacate the property known as [B Street, Suburb C].
2.5Any statement or representation by her that the husband forced or compelled the wife to sell [Suburb C].
3.Liberty granted to the husband to file an urgent Application to seek an extension of the time specified in Order 1 hereof in the event that the husband presents evidence to the Court that the wife has breached any of the terms of Order 2 hereof.
4.That the wife or her lawyers forthwith confirm and co-sign the letter of instruction forwarded to [Dr D] on 18 December 2024 and that the wife provide such documents and information required by the expert within seven days of any such request.
5.That the husband and the wife attend upon [Dr D] for such interviews as are nominated by her including but not limited to, 17 and 18 March 2025, and that both parties do all things necessary to ensure that the children similarly attend any required interviews.
6.That leave be granted to the husband’s lawyers to provide [Dr D] with copies of all material produced under Subpoena including the documents produced by [Dr E], Psychiatrist.
7.That leave be granted to the husband to cause four Subpoenas to be issued to any medical practitioners, clinics, hospitals and allied health professionals who have provided or are providing treatment to the wife.
8. Leave be granted for this Application to be listed urgently.
9. Leave be granted for short service of this Application.
10. Costs.
The matter came before me initially on 23 January 2025 on which occasion I made the following orders:
1.Leave is granted to [Ms F], solicitor to withdraw.
2.I fix the matter for mention before me at 9.30 am on Wednesday, 29 January 2025.
3.The applicant is to serve the respondent by way of email with his Application in a Proceeding and affidavit filed 17 January 2025 by no later than 4.00 pm today.
4.The mother and the father are to appear in person before me at 9.30 am on Wednesday, 29 January 2025.
I am satisfied on the basis of an affidavit of Ms G sworn 28 January 2025 that there has been compliance with the orders for service of the wife.
The matter came before me at 9.30 am this morning. The husband appeared through his solicitor. The matter was called and at 9.35 am I was advised that there was no appearance by the wife. The matter was stood down to 10.30 am. I am advised by my associate that there has been no appearance by the wife, and the husband who gave some short evidence before me confirmed that there had been no appearance by the wife this morning.
The circumstances in which the warrant was issued are canvassed at length in the judgment of Campton J delivered 20 November 2024. On that occasion, his Honour made an order as follows:
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.
His Honour reveals the basis for the making of the order to be as follows:
4By 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 March 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.
5On 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.
6On 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.
7At 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 on 6 November 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.
8An auction sale was scheduled for […] October 2024. It did not proceed due to lack of inquiry.
9[In] or about […] November 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 […] November 2024 to be $13 million. The first open home with the reduced estimated selling price occurred [in] November 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.
10The husband gives evidence that [in] November 2024 interest was expressed by another buyer to inspect the property. That buyer, together with the agent, were also refused access by the wife.
11The 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 […] November 2024. He contends there has been no material response to those emails. The auction scheduled for [late] November 2024, 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
12The 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)
13The 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.
14To 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.
15Over the course of the hearing today, each of the parties has had the opportunity to reconsider their positions.
16The 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 scheduled for [late] November 2025 being rescheduled for late February 2025.
17The 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.
There has been no appeal filed by the wife against the making of those orders.
The husband’s affidavit sworn 28 January 2025 records that the wife, in breach of the orders and remains, as at 27 January 2025, in occupation of the home.
The husband’s solicitor advised the Court this morning that the NSW Police have been contacted to request execution of the warrant.
The relief the husband seeks is predicated upon a desire to avoid the children being present when the NSW Police execute the warrant.
The wife remains in default of orders, conscious as she is of the consequences of doing so. I note also that she has failed to appear despite directions that she is to do so.
I am informed from the bar table and by evidence from the husband that there is in place a parenting plan that has been in existence for approximately 18 months. That plan provides for the children to spend time with the father five nights a fortnight, being every Wednesday and on alternate weekends from 2.00 pm on a Friday until Monday morning. Under that parenting plan, the children would today be coming into the father’s care from about 3.00 pm and would also be in the father’s care from 2.00 pm this Friday until before school on Monday. The consequence of the orders as sought by the husband if made are that the children would be in his care in accordance with the parenting plan overnight but for a couple of days.
The husband also seeks orders to progress interviews with a jointly agreed court expert.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth), I set out in short form my reasons.
Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires the Court to regard the best interests of the child as the paramount consideration. In determining what is in the child's best interests, s 60CC(2) sets out the matters that are required to be considered. I have had regard to that section, not all of which is applicable to this particular application.
The Full Court in Goode and Goode (2006) FLC 93-286 ("Goode") set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. I have set out, as best I can, what the competing proposals of the parties in circumstances where the wife has failed to appear.
The orders sought are pressed on an urgent and stop gap basis. They arise entirely as a consequence of the failure of the wife to comply with orders she is aware of and consistent with Campton J’s judgment implicitly did not oppose.
I am satisfied that it would be contrary to the children’s interests to be exposed to an execution of the warrant and that it is consistent with their interests for them to be protected from it. The orders I propose to make is only for a limited time and sits consistently with the parenting plan of the children but for a short period
In all the circumstances, I am satisfied that the short period provides sufficient opportunity for the order to be executed and otherwise protects the children from being exposed to that created entirely by their mother.
I propose to make orders albeit not entirely in conformity with that sought by the husband for a period of time for the children to be in his care.
I am otherwise satisfied, based on the husband’s evidence, that the orders sought in relation to the appointment of the single expert are appropriate to progress this matter.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated:30 January 2025
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