Tansel & Dellos (No 3)

[2021] FCCA 1740

FEDERAL CIRCUIT COURT OF AUSTRALIA

Tansel & Dellos (No 3) [2021] FCCA 1740

File number(s):	MLC 6067 of 2018
Judgment of:	HER HONOUR JUDGE C.E. KIRTON QC
C
Date of judgment:	18 June 2021
Catchwords:	FAMILY LAW – enforcement of orders – where the Wife has filed an Application in a Case seeking orders that the Husband vacate the former matrimonial home – where there are final orders for the sale of the former matrimonial home – where the Wife seeks orders for sole use and occupation – where the Wife seeks orders pursuant to r.25B.62 of the Federal Circuit Court Rules 2001 (Cth) that a warrant for possession of the property issue requiring the husband to vacate the property and give vacant possession to the Wife should he fail to vacate the property within 7 days – where the Husband has obstructed and delayed the sale of the former matrimonial home without reasonable excuse – orders made largely as sought by the Wife
Legislation:	Family Law Act 1975 (Cth), s 121
Cases cited:	Tansel & Dellos (No 2) [2021] FCCA 704
Number of paragraphs:	7
Date of last submission/s:	18 June 2021
Date of hearing:	18 June 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Glezakos
Solicitor for the Applicant:	Kenna Teasdale Lawyers
For the Respondent:	The Respondent appeared in person
Counsel for Amicus Curiae	Dr Smith

ORDERS

MLC 6067 of 2018
BETWEEN:	MS TANSEL Applicant
AND:	MR DELLOS Respondent

ORDER MADE BY:	HER HONOUR JUDGE C.E. KIRTON QC
DATE OF ORDER:	18 JUNE 2021

THE COURT ORDERS THAT:

1.Within seven (7) days of the date of these Orders, the Respondent Husband (Husband) vacate the real property at G Street, Suburb H in the State of Victoria (G Street, Suburb H Property).

2.The Applicant Wife (Wife) have the sole use and occupation of the G Street, Suburb H Property to the exclusion of the Husband pending a sale of the property pursuant to the Final Orders made by this Honourable Court on 16 April 2021 (Final Orders).

3.Within seven (7) days of the date of these Orders, the Husband deliver to the Wife’s nominated real estate agent, Mr CCC of EE Real Estate all keys, remotes, manuals, alarm codes and any other items or passwords required to access and secure the G Street, Suburb H Property.

4.The Husband ensure that the G Street, Suburb H Property is left in a neat and tidy condition.

5.In the event the Husband fails to comply with Order 4 or in the event the real estate agent recommends repairs or works are required to the G Street, Suburb H Property to bring the property into a saleable condition, then the Wife be authorised to arrange for such repairs, works and cleaning and the costs of same be deducted from the Husband’s entitlement to a share of the sale proceeds of the G Street, Suburb H Property pursuant to the Final Orders and paid to the service provider or reimbursed to the Wife.

6.If the Husband fails to vacate the G Street, Suburb H Property in accordance with Order 1, then pursuant to r.25B.62 of the Federal Circuit Court Rules 2001 (Cth), a warrant for possession shall issue to the Federal Marshall authorising him or her to enter the G Street, Suburb H Property and give possession of the property to the Wife.

AND THE COURT ORDERS FURTHER THAT:

7.On or before 4:00 pm on 25 June 2021, the Wife file and serve a summary of costs in this proceeding in accordance with the scales set out in the Family Law Rules 2004 (Cth) and the Federal Circuit CourtRules 2001 (Cth) and indemnity costs (Summary of Costs).

8.On or before 4:00 pm on 9 July 2021, the Husband file and serve his reply to the Wife’s Summary of Costs.

9.On or before 4:00 pm on 23 July 2021, the Wife be permitted to file and serve any reply to the Husband’s submissions on costs.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Tansel & Dellos (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
Revised from transcript

HER HONOUR JUDGE C.E. KIRTON QC:

1. Judgment in this matter was delivered on 16 April 2021. The anonymised citation of this Judgment, as required by s.121 of the Family Law Act 1975 (Cth), is Tansel & Dellos (No 2) [2021] FCCA 704 (Judgment).

2. In the Orders section of the Judgment (Final Orders), from paragraph 18 onwards, orders were made for sale of what was described as the ‘G Street, Suburb H Property’, being the former matrimonial home. The orders relevant to the sale of the G Street, Suburb H Property are contained within paragraphs 18 to 27 of the Final Orders. Liberty to apply in relation to the sale was granted to the parties at paragraph 27, which provided as follows:   

   The parties are granted liberty to apply to the court with respect to the sale of the G Street, Suburb H property as may be necessary in order to give effect to these orders. 

3. Paragraph 18 of the Final Orders provided that the parties ‘do all such acts and things and sign all documents as may be necessary and required to sell the real property situated at and known as G Street, Suburb H in the State of Victoria and being the property more particularly described in Certificate of Title Volume … Folio …’, thereinafter defined in the Final Orders as the ‘G Street, Suburb H Property’.

4. Paragraph 19 of the Final Orders provided that the sale of the G Street, Suburb H Property be conducted on the following terms:

   (a)That the selling agent be appointed by agreement between the parties and in default of agreement within 14 days of the date of these orders, by an agent nominated by the Wife;

   (b)That the conveyancer be agreed as between the parties, and in default of agreement within 14 days of the date of these orders, as nominated by the Wife; and

   (c)On such terms and conditions and for fair price as agreed between the parties and in default of agreement within 14 days of the agents appointment, and then as determined by the Wife on the recommendation of the selling agent.

5. Today is the hearing of the Application in a Case filed by the Wife on 16 June 2021 seeking enforcement of the Final Orders. The Application in a Case is supported by two affidavits filed on behalf of the Wife, being an affidavit deposed to by the Wife filed 11 June 2021, and an affidavit deposed to by Mr CCC, also filed on 11 June 2021.

6. Mr CCC is the Managing Director and Senior Sales Executive of EE Real Estate. The substance of that affidavit is that the Husband has not cooperated in the sale of the G Street, Suburb H Property, and the default provisions are now operative in relation to the sale of the G Street, Suburb H Property. The Husband was given an opportunity to cooperate in relation to the sale, but has chosen not to do so.

7. Today, the Husband denies that he has failed to cooperate but he has not filed any affidavit material in response to the two affidavits filed on behalf of the Wife that are before me today. As a result, the Court has no option but to accede to the orders sought by the Wife in the Application in a Case. This matter has gone on for many years, commencing in May 2018 upon application by the Wife seeking final property orders.  It now occupies four or five boxes in the Court’s archives.  It was four boxes when I delivered my Judgment in April this year. Now we are up to a fifth box in a matter that really should have taken around two files.   I now pronounce the following orders.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton QC.

Associate: 

Dated: 4 August 2021