Terzi and Terzi (No 3) - [2019] FamCA 523

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

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FamCA 523
Decision Date: 16 July 2019

CaseChat Overview and Summary

In *Terzi and Terzi (No 3)*, Foster J of the Family Court of Australia considered an application for the enforcement of existing Family Law orders concerning a property. The dispute arose from the husband's alleged breaches of orders that had appointed the wife as trustee for sale, restrained the husband from entering or occupying the property, and granted the wife exclusive occupation. The wife had changed the locks, but the husband had subsequently gained entry and refused to allow inspections by potential lessees or buyers, leading to an application for a Warrant of Possession.

The primary legal issue before the court was whether the husband's actions constituted a contravention of the existing orders, thereby justifying the issuance of a Warrant of Possession to remove him from the property and grant the wife exclusive possession. The court was required to determine if the husband's continued presence and obstruction of the sale process warranted such a significant enforcement measure.

Foster J reasoned that the husband's conduct, including gaining entry after the locks were changed and refusing to facilitate property inspections, demonstrated a clear disregard for the court's previous orders. The court applied the principles of enforcing court orders, particularly in the context of property disposition and exclusive occupation. The judge found that the husband's actions were a direct contravention of the orders and that a Warrant of Possession was an appropriate and necessary remedy to ensure the effective execution of the trustee for sale orders and the wife's exclusive occupation.

Consequently, the court ordered that a warrant issue to the Australian Federal Police, assisted by the New South Wales Police, to remove the husband from the property and place it in the wife's possession. The husband was further restrained from entering the property or having anyone act on his behalf at the property, and from coming within 250 metres of it. The husband was also ordered to pay the wife's costs of the application, to be paid from the proceeds of sale of the property.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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