Terzi and Terzi (No 3)
[2019] FamCA 523
•16 July 2019
FAMILY COURT OF AUSTRALIA
| TERZI & TERZI (NO. 3) | [2019] FamCA 523 |
| FAMILY LAW – ENFORCEMENT OF ORDERS – Where orders made that wife be appointed trustee for sale – Where husband restrained from entering occupying or remaining on the property – Where order made that wife have exclusive occupation of property – Where wife changed locks at property – Where husband gained entry to property – Where husband refused to comply with agent’s requests to allow potential lessees or buyers to inspect the property – Where order made for a Warrant of Possession |
| Family Law Act 1975 (Cth) s 117 |
| APPLICANT: | Ms Terzi |
| RESPONDENT: | Mr Terzi |
| FILE NUMBER: | PAC | 2690 | of | 2016 |
| DATE DELIVERED: | 16 July 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 16 July 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Elve of Auslawyers |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
Orders
Pursuant to Rule 20.54 of the Family Law Rules 2004 a warrant issue to the Australian Federal Police to be assisted by the New South Wales Police to remove Mr Terzi from the property at B Street, Town C being all of the land comprised as Lot … in Deposited Plan … and to place the property in the possession of the wife Ms Terzi.
Upon execution of the warrant of possession by the Australian Federal Police and/or the New South Wales Police, Mr Terzi is hereby restrained from entering upon the property at … B Street, Town C or to have anyone acting on his behalf as his agent or servant enter to enter upon the said property on his behalf after the property is in the possession of the wife Ms Terzi and that thereafter the husband Mr Terzi be restrained from coming within 250 metres of the said property.
The husband pay the wife’s costs of and incidental of the Application in a Case filed 10 July 2019 assessed in the sum of $1,000.00 with such sum to be paid to the wife from the proceeds of sale of the property at Town C to be held by the selling agent in accordance with orders made 31 May 2019.
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
| Ms Terzi |
Applicant
And
| Mr Terzi |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The present application for determination is an application by the wife by way of enforcement. The application is contained in an Application in a Case filed on 10 July 2019 supported by an affidavit of the wife also filed on 10 July 2019. In substance, the Application in a Case seeks that a warrant for possession issue pursuant to the provisions of the rules so as to secure vacant possession of the real estate property situated at … B Street, Town C, New South Wales.
The applicant wife seeks enforcement orders as a consequence of previous orders made by the Court relating to the said property.
On 31 May 2019 this Court in an application for interim orders filed by the wife made orders, in summary, that provided for the parties to do all things necessary to list the property at … B Street, Town C for sale by private treaty and that in the event that the property was not sold by 15 April 2019 for the property to be sold by public auction and that upon sale and after payout of mortgage and other costs relating to the sale, there be a payment of $30,000.00 to the wife and that the balance be held in the trust account of the real estate agent pending further order of the Court.
It was, otherwise, ordered that pending sale, the husband, who was in occupation of the property, keep the property in good order and repair, cooperate with the selling agent in relation to the sale, maintain the property in a presentable condition to facilitate its sale, do all necessary things to facilitate a sale at the earliest possible time, be restrained from doing anything which had the effect of hindering or preventing an inspection for sale of the property, and give vacant possession not less than 14 days before settlement of the sale. The husband was, otherwise, ordered to be responsible for payment of property outgoings, including mortgage payments up until the date of sale.
As a consequence of those orders, it was necessary for the wife to bring an application for enforcement by reason of the husband’s non-cooperation in relation to the sale process.
Accordingly, on 19 June 2019 further orders were made by this Court that, in summary, provided that the wife be appointed trustee for sale of the subject property, and for that purpose the said property shall vest in the wife for the purposes of sale as provided for in orders made on 31 May 2019. It was further ordered that the husband be restrained from entering, occupying or remaining on the Town C property or from attending at or being within 100 metres of the property and from doing any act or thing to impede the sale of the property. It was further ordered that the wife had exclusive occupation of the property from 19 June 2019 until its sale.
The present application comes before the Court in circumstances where the husband remains in occupation of the property and, it appears, has resolved not to comply with orders made by this Court.
The Court is reasonably satisfied that the husband has notification of the proceedings today, and as he has done in the past, it appears he has elected to not be represented or to appear in person in response to the application by the wife.
As to service, an affidavit of the solicitor for the wife that comprises exhibit “A” has been filed in these proceedings.
The wife has now become registered proprietor of the property as trustee for sale pursuant to the Court’s previous orders, and notwithstanding the husband prevaricating in relation to the sale, she is anxious for the property to be sold as referred to in previous reasons for judgment in these proceedings.
The wife attended the property at Town C on 19 June 2019 and the wife arranged for locksmiths to attend the property and change the locks. She spent time cleaning the property that was in a disappointing state of repair and cleanliness.
On or about 8 July 2019 the wife discovered the husband had gained entry into the property, notwithstanding that she had changed the locks. The listing agent had contacted the wife and informed her that the husband was inside the premises and was refusing to comply with the agent’s request in allowing potential lessees or purchasers to inspect the property.
The wife attended Town S Police Station on 8 July 2019 and, in its essence, the police were not prepared to be engaged in the issues, it being a matter within the jurisdiction of this Court.
Accordingly, the wife seeks that a warrant for possession issue under the provisions of the rules so as to facilitate a bailiff appointed by the Court in removing the husband from the premises to provide to her vacant possession as previously ordered. In all of the circumstances, it is readily apparent that it is appropriate to make the orders sought.
In all of the circumstances, the Court is satisfied that in respect of this application, being an application by way of enforcement, it is appropriate that there be an order for costs as sought on behalf of the wife.
Notwithstanding the usual rule as to costs provided in section 117 of the Act, in all of the circumstances there are justifying circumstances in the general rule that each party pay their costs be displaced as this application is an application by way of enforcement in circumstances where the husband has, as it were, thumbed his nose at previous orders of this Court.
In all of the circumstances, it is appropriate that there be a costs order in favour of the wife and in the circumstances the sum of $1,000.00 is an appropriate sum.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice delivered on 16 July 2019.
Associate:
Date: 16 July 2019
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