Terzi and Terzi (No 2)
[2019] FamCA 490
•19 June 2019
FAMILY COURT OF AUSTRALIA
| TERZI & TERZI (NO. 2) | [2019] FamCA 490 |
| FAMILY LAW – ENFORCEMENT OF ORDERS – Where orders made for the sale of property with the wife to have the conduct of that sale and the husband required to keep the property in good order and repair and provide appropriate access to the property for purposes of sale and to vacate the property 14 days before settlement – Where the husband refuses to give access to property – Whether appropriate that husband be ordered to vacate the property – Where order made appointing the wife trustee for sale Where order made for husband to vacate and remain away from the property. |
| Family Law Act 1975 (Cth) |
| Terzi & Terzi [2019] FamCA 357 |
| APPLICANT: | Mr Terzi |
| RESPONDENT: | Ms Terzi |
| FILE NUMBER: | PAC | 2690 | of | 2016 |
| DATE DELIVERED: | 19 June 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 19 June 2019 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Cairns |
| SOLICITOR FOR THE RESPONDENT: | Auslawyers |
Orders
The Applicant wife be appointed as trustee for sale of the property B Street, Town C NSW being the whole of the land contained in Lot … in Deposited Plan … and for such purpose the said property shall vest in the wife for the purposes of facilitating a sale of the property as provided for in orders made 31 May 2019.
The Respondent husband Mr Terzi is hereby restrained from entering occupying or remaining on the Town C property, from attending at or being within 100 meters of the said property, from doing any act or thing to impede the sale of the said property and from discussing or communicating with any real estate agent appointed to sell the said property matters related to its said sale.
The Applicant wife have exclusive occupation of the property situate at B Street, Town C NSW from this date forward pending final sale of the property.
The husband pay the wife’s costs of and incidental to this application for enforcement.
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 Terzi & Terzi 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 PARRAMATTA |
FILE NUMBER: PAC 2690 of 2016
| Mr Terzi |
Applicant
And
| Ms Terzi |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the Court is an Application in a Case filed by the wife on 7 June 2019 seeking, appropriately, further enforcement orders to facilitate implementation of orders made by this Court on 31 May 2019. These Reasons for Judgment assume familiarity with those Reasons for Judgment delivered 31 May 2019, Terzi & Terzi [2019] FamCA 357.
The orders made on 31 May 2019 provided that the property at B Street, Town C be sold by the parties, with the wife to have the conduct of that sale, and upon completion of the sale there be a payment of $30,000.00 to the wife and the remaining funds to remain in a controlled monies account pending further order of the Court.
The husband was ordered, pending sale, to keep the property in good order and repair, provide appropriate access to the property for the purposes of sale, maintain the property in a presentable state, and do all things necessary to facilitate the earliest possible sale and give vacant possession not less than 14 days before settlement. Otherwise, the husband was ordered to be responsible for all mortgage payments, statutory rates and charges, and other utilities, insurances and outgoings in relation to the property prior to the date of sale and make those payments as and when they fall due.
The circumstances subsequent to those orders are more fully set out in the affidavit filed by the wife on 7 June 2019 in support of the present Application in a Case. The present Application in a Case seeks the following orders:
(1)That the applicant wife be declared trustee for sale of the property at B Street, Town C, being Lot … Deposited Plan …; and
(2)That pursuant to section 114 of the Family Law Act, the respondent husband be restrained from entering, occupying or remaining on the subject property, attending at or being within 100 metres of the Town C property, doing any act or thing to impede the sale of the property, and discussing with any real estate agent appointed to sell the property any matters relating to its sale;
(3)That the applicant be granted exclusive occupancy of the Town C property and costs.
The wife’s affidavit deposes that the agent appointed to have the sale, Company J Town C, has advised that the husband was refusing access to the property, but the agent would continue to attempt to seek access to the subject property.
On 8 April 2019, the husband communicated with the wife via text message informing her that he had purportedly sold a business that had previously been conducted in part of the premises of the Town C property. The communication, in the N language to the wife, threatened to kill the wife “with his own hands”.
The wife at that stage made no report to the police in relation to the threats made in the subject text message, but subsequently the police applied for an apprehended domestic violence order on her behalf, and on 6 May 2019 an interim apprehended domestic violence order was made for the protection of the wife against the husband.
Subsequently, the wife received communication that the husband had purported to sell and lease the business to named third parties. They informed the wife that they had provided to the husband 10 per cent deposit and had signed a document identified as the pre-lease agreement. The wife informed those third parties that the property was indeed to be sold and that she was not in agreement to the property being leased or the business being disposed of as sought by the husband.
The third parties subsequently informed the wife that they had ceased any intention of acquiring the business. One assumes that they will deal with the husband directly in relation to deposit moneys purportedly paid by them directly to him.
The wife has more recently been informed by the listing real estate agent that on several occasions they had attempted to have access to the property, but the husband continued to cause difficulties. There followed a series of email exchanges between the wife and the husband, and by email dated 24 May 2019 the husband informed the wife as follows:
I hereby give her full permission to sell my property and list it with any agent she desires to sell it … disburse the money received as she wants. I will not put a caveat on the property and will give permission for the real estate to sell the property as she desires. I will be leaving next week Thursday or Friday –
which would have been Thursday, 30 May or Friday, 31 May. He then wished the wife best wishes and good luck.
The circumstances are the wife is unsure as to whether the husband has vacated the property and, not withstanding his professed intention to do so, she seeks to proceed to have enforcement orders made as sought in her application.
In all of the circumstances, it is appropriate to make orders sought by the wife in her Application in a Case, and those orders being by way of enforcement of the Court’s orders made on 31 May 2019.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 June 2019.
Associate:
Date: 19 June 2019