Spencer and Spencer

[2016] FamCA 1178

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER [2016] FamCA 1178

FAMILY LAW – ENFORCEMENT OF ORDERS FOR PROPERTY SETTLEMENT – matter to proceed in absence of respondent husband – failure of respondent husband to discharge mortgage and transfer interest in property to the applicant wife – orders made authorising a Registrar of the Court to sign the transfer in lieu of the respondent husband – matter adjourned to enforcement hearing with respect to applicant wife’s application that the respondent husband comply with the order requiring him to discharge the mortgage

APPLICANT: Ms Spencer

RESPONDENT: Mr Spencer

FILE NUMBER: MLC 3846 of 2007

DATE DELIVERED: 6 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 6 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jeans

SOLICITOR FOR THE APPLICANT: Conlan Cummings Lawyer

THE RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. Pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar of the Melbourne Registry of the Family Court of Australia be forthwith appointed to execute a Transfer of Land in the name of the husband Mr Spencer transferring his right, title and interest in the property known and situate at B Street, Suburb C in the State of Victoria more particularly identified in Certificate of Title Volume … Folio … to the wife Ms Spencer pursuant to paragraph 1 of the orders made 13 April 2007 and to do whatever other acts and things that may be necessary to give validity and operation to the said Transfer.

2. The matter be adjourned to the Registrar’s Directions List at 9.30 am on 31 August 2016.

3. By 4.00 pm on 29 July 2016 the husband:

   (a)file and serve a financial statement that complies with Chapter 13 of the Family Law Rules;

   (b)provide to the solicitors for the wife the following documents:

   (i)     personal taxation returns and notices of assessment for the last three financial years;

   (ii)    financial statements and taxation returns for any entity in which the husband has (or had) an interest for the last three financial years;

   (iii)     all bank statements for the account(s) held in the sole name of the husband or for any account held jointly by the husband and any other person for the period 1 January 2014 to date;

   (iv)   all bank statements for any account(s) held in the name of any entity in which the husband has (or had) an interest for the period 1 January 2014 to date; and

   (v)    documents regarding any loans, mortgages or other liabilities held in the name of the husband or held jointly with any other person for the period 1 January 2014 to date.

4. By 4.00 pm on 12 August 2016 the wife file and serve upon the husband any amended application and any further affidavits upon which she seeks to rely.

5. The wife forthwith serve upon the husband by prepaid post addressed to the husband at D Street, Suburb E in the State of Victoria a sealed copy of these orders and the Family Court Brochure for enforcement hearings.

6. The wife’s costs of this day be reserved.

IT IS CERTIFIED THAT

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES THAT
In the event the husband fails to attend Court on the adjourned date the wife be at liberty to seek a warrant for the husband’s arrest.  

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 Spencer & Spencer 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 3864  of 2007

Ms Spencer

Applicant

And

Mr Spencer

Respondent

REASONS FOR JUDGMENT

1. The application listed before me in the judicial duty list is the wife’s application filed 3 May 2016 in which she seeks various orders by way of enforcement of final orders for property settlement made on 13 April 2008.  I am satisfied that based upon the affidavit of service filed by the wife that this application was served personally upon the husband on 22 May 2016.  The husband was called both during the callover and at the commencement of the hearing and did not appear.  I am satisfied in those circumstances that the matter should proceed in his absence.

2. The orders made by consent on 13 April 2008 required the husband to discharge the mortgage and transfer his interest in the property at B Street, Suburb C to the wife within 12 months of the date of the orders.  Pending the transfer, the husband was to be solely liable for, and pay, the mortgage instalments with respect to that property.  The wife lives in the Suburb C property with one of the two children of the marriage.  The other child lives with the husband and spends each alternate weekend with the wife.

3. The orders required the wife to relinquish any claims she had in relation to          Spencer Proprietary Limited or the business F Pty Ltd being conducted by the husband.  The husband has not complied with the orders and the property remains registered in the joint names of the parties and subject to two mortgages to the Bendigo Bank.  As at 18 April 2016, the wife deposes that the amount owing was $134,988.  The wife deposes in her affidavit to having made numerous requests to the husband to comply with the orders and that, although he has not done so, that until or about June 2015 he had continued to meet the mortgage payments. 

4. The wife has annexed to her affidavit some of the correspondence sent to the husband seeking his compliance with the orders.  The wife also annexes to her affidavit a copy of a letter to the husband dated 13 August 2014 in which reference is made to a caveat having been lodged over the title to the property by one of the husband’s business suppliers.  Notwithstanding that the mortgage has not been discharged, in circumstances where the husband has now stopped making the mortgage payments, and in order to protect her interest in the property, albeit that the caveat has been withdrawn, the wife seeks orders that will affect the transfer of the husband’s interest in the property to her, albeit subject to that mortgage.

5. I am satisfied having regard to the undated letter received by the wife from the Suburb G branch manager of the Bendigo Bank that, although the husband and wife will remain jointly and severally liable for the mortgage, the bank will consent to the property being transferred to the wife’s name. 

6. In circumstances where I am satisfied that there have been numerous requests, that the husband despite those requests has not complied with paragraph 1 of the orders made in April 2008, including a request that his interest in the property be transferred subject to the mortgage and has chosen not to do so or to participate in these proceedings, I propose to accede to the wife’s application and make orders authorising a Registrar of this Court to sign the transfer in lieu of the husband. 

7. The wife also seeks procedural orders with respect to her application that the husband comply with the order requiring him to discharge the mortgage.  On that basis, I propose to adjourn the matter to an enforcement hearing and make the orders the wife seeks that prior to that hearing the husband be required to file and serve a financial statement and provide disclosure. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 July 2016.

Associate: 

Date:  21 July 2017