Thatcher & Thatcher (No 2)

[2024] FedCFamC1F 598

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Thatcher & Thatcher (No 2) [2024] FedCFamC1F 598

File number(s):	CAC 1530 of 2021
Judgment of:	GILL J
Date of judgment:	4 September 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application in a proceeding – Application for a stay of orders pending appeal – Application for enforcement of orders – Where the husband has appealed final orders that provided for the sale of real property – Where the father seeks a stay of those orders requiring him to facilitate the sale – Where the father alternatively seeks enforcement of an order providing for an offer of 95% of the list price to be accepted and asserts that he has provided such an offer – Where the mother seeks enforcement of the orders for the sale – Where the second respondent seeks enforcement of an order for the transfer of a motor vehicle – Balance of convenience in favour of a stay – Stay granted – No orders for enforcement
Legislation:	Road Transport (Vehicle Registration) Regulations 2000
Number of paragraphs:	25
Date of hearing:	4 September 2024
Place:	Canberra
Solicitor for the Applicant:	Litigant in person
Solicitor for the First Respondent:	Litigant in person
Solicitor for the Second Respondent:	Ms Pagan, Bevan & Co

ORDERS

CAC 1530 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR THATCHER

Applicant

AND:

MS THATCHER

First Respondent

MR YANAI

Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	4 SEPTEMBER 2024

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

1.Order 18 of the orders of 17 May 2024 is stayed pending further order of the court, or resolution of the appeal, on condition that Mr Thatcher is to indemnify Ms Thatcher in relation to any interest accruing, or charges accruing, or fees imposed in respect of the loan related to Suburb G property from 10 July 2024 until the disposal of the appeal and, if unsuccessful, in relation to the property aspects of the appeal, until his compliance with Order 18.

2.The applications and responses are otherwise dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thatcher & Thatcher has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. These applications are in the context of a pending appeal by the husband of both parenting and property matters due to be heard by the Full Court on 30 September 2024. The husband, by his application of 10 July 2024, seeks a stay of Order 18 of the final orders previously made by me.

2. Those final orders required him to vacate one of the properties the subject of the proceedings located in Suburb G, by 16 July 2024.  That requirement was connected to further provisions which dealt with the sale mechanisms for that property at Orders 19-21. 

3. The husband further seeks, without formal application, but by assertion in his affidavit, to enforce another order, being Order 19(d) which provides for the sale of the Suburb G property in the absence of agreement between the parties as to price, at an amount of 95 per cent of the list price nominated by the selling agent.  That application for enforcement is connected to the husband making an offer of a particular amount that he says meets the conditions of being at or above 95 per cent of the list price.

4. The wife, by her reply dated 17 July 2024, seeks enforcement of Order 18 to obtain a vacant possession of the Suburb G property for the purposes of sale. She indicates a desire to enforce Orders 19(a) and (e), which relate to the listing of that property for sale and a necessity for cooperation with such, and Order 21 which, however, only deals with a point from after the vacation in accordance with Order 18. 

5. The third party, by an application filed more recently on 27 August 2024, seeks enforcement of Orders 30(a) and 30(b) which casts an obligation upon the wife for the transfer, and transfer of registration, of a motor vehicle to the third party.

6. Dealing firstly with Order 18.  Order 18 requires the husband to vacate the Suburb G property.  Although he asserted in the proceedings before me that he had vacated the property, he in fact has not. He has permitted his parents to remain in occupation in circumstances where the orders contemplated that the property would be vacant connected to its preparation for sale. It remains occupied, at least occupied as to the dwelling contained on that property by both of his parents. The husband now seeks a stay of that order to avoid disruption to his parents, observing that his father is very unwell.

7. In considering whether or not a stay to that order ought to be made, it should be remembered that the wife is entitled to the fruits of her litigation. However, where the appeal is shortly to take place, the balance of convenience points to a stay being granted albeit on terms. This is despite some doubt as to the merits of the appeal brought by the husband. In particular, in his appeal the husband asserted that contrary to the terms put forward at the end of the trial he sought in the trial to retain the Suburb G property.

8. It should be observed that at no stage throughout the hearing did the husband seek to retain the Suburb G property.  In final submissions by his counsel he tended a document being exhibit F23, which contained no reference to the retention of the Suburb G property. However, he points to the fact that his counsel, shortly after the tender of F23 made an isolated comment that he would like to retain the Suburb G property.  The context of that comment must be borne in mind in that counsel indicated that she would return to that issue.  It was of course necessary for her to return to that issue as in the orders formally sought by the husband contained exhibit F23, there was no order that could be construed as one that would result in the retention of the Suburb G property under any circumstances. Over the balance of her submissions to the court, that day and the following day, no further reference was made to either identify an order that should be made for the retention of the Suburb G property or as to the subject matter generally as to the husband retaining the Suburb G property.  At no stage was the identification of any desire to depart from exhibit F23 and the terms sought there to retain the Suburb G property. It is doubtful that the husband's contention that he made such an application will be made good.

9. Despite this potential weakness on the part of the appeal, the balance of convenience on terms sits with a stay pending the appeal. Those terms are that the husband will be held liable to indemnify the wife for any interest and charges in relation to the loan related to that Suburb G property from the point at which he filed his stay application, to the point of the delivery of the appeal or, if the appeal is dismissed, to the point at which Order 18 is complied with and the property is vacated. 

10. To do anything else will distort the current order by shifting the cost of occupation onto the mortgage which is to be borne off the top of the sale proceeds of the Suburb G property and therefore would be borne in part by the wife. 

11. The husband also sought enforcement of Order 19.  This was sought on the basis that Order 19 provides a sale mechanism in relation to the Suburb G property.  Order 19, in general terms, requires the parties to agree on a price for the sale, and if they are unable to agree than they are to take the advice of the listing agent as to a listing price and are to accept any offer that is above 95 per cent of that nominated listing price by the agent.  As observed earlier, the husband asserts that he has made an offer over 95 per cent of the list price and therefore submits that sale to him is mandated.

12. However, it is not appropriate to give enforcement of the orders sought at this stage for a number of reasons. The first is that the husband seeks by his appeal to vary the underlying percentage split in a significant manner. The current mechanism for sale is designed to facilitate the order in its current terms.  If the husband succeeds on appeal, there is no guarantee that the mechanism will remain in place following either orders being substituted by the Full Court or following remittal. There is good reason why, in circumstances where the husband seeks a stay of an order that was in part designed to facilitate the sale, he should not then be permitted to enforce another aspect of those orders.

13. However, this is probably not the most serious of the matters which stands in opposition to the enforcement sought by the husband. The second is that I am not satisfied that a basis for the enforcement is made out. This is for two reasons.

14. The first is, although an offer has been made by the husband, I am not satisfied that it is genuine.  The reason for not being satisfied as its genuineness comes from listening to the husband's submissions at the end of the case, made in reply to those made by the wife. There he explained his poor financial circumstances as meaning that without the consent of the wife he is unable to borrow funds. The husband then also asserted that despite this limitation on his capacity to be able to borrow any funds, he is able to borrow funds in respect of the purchase of the property at Suburb G provided the wife executes the sale document, as this would somehow act as a consent on the part of the wife, which would enable him to borrow further funds.  I am not satisfied that this is so, or that the husband has access to funds under the circumstances that he has described in his submissions, and so I am not satisfied that there is a genuine offer made by the husband.

15. Secondly, I am not satisfied that the offer made by the husband meets the 95 per cent threshold of the list price, in so far as a list price was identified in the orders.  The documents of engagement of the real estate agent contain a nominated list price.  Were that list price set out in unadorned terms, it would be possible to then determine whether or not 95 per cent had been the subject of the offer made by the husband. However, the list price specified by the parties in their retention of the real estate agent is expressed as a defined amount.  As best as can be understood this does not equate to a list price as referred to in the orders, but represents a floor above which offers will be entertained rather than a list price under which offers will be accepted. I do not accept that there has been identified a list price as contemplated by the orders sufficient to enable the identification of an offer as being at 95 per cent or above of the list price.

16. Accordingly, the application to enforce Order 19 will be refused.

17. In dealing with those issues, it also deals with the other issues raised by the wife.

18. That leaves the question of the enforcement sought by the third party in respect of Order 30.

19. Order 30 is expressed as:

    That the mother shall, within 14 days of these orders do all acts and things and sign all documents necessary to:

    (a)transfer her right title and interest in [Motor Vehicle 1] to the second respondent; and

    (b)transfer the registration for the [Motor Vehicle 1] into the sole name of the second respondent.

20. As far as can be ascertained, the wife has prepared the vehicle for delivery to the second respondent, and has executed a transfer document as provided by the relevant transport authority.  There, however, remains one sticking point which has made this the subject of the litigation before me today. 

21. That sticking point is whether the wife is also obligated to obtain a roadworthy certificate for the vehicle. The issue is whether the obtaining of a roadworthy certificate forms part of the “all acts and things necessary to transfer the registration for the vehicle.”  Reliance was put upon the Road Transport (Vehicle Registration) Regulations 2000 which inform that the authority may require the provision of such a document.  Reliance was also put on exhibit W1, the document being the certificate of registration renewal from the relevant transport authority.  That document also contains the aspects necessary to inform the transport authority of the transfer of ownership of a vehicle to enable its registration to take place in the name of the new owner.  That material is consistent with the Road Transport (Vehicle Registration) Regulations 2000 and the provision that allows the registration authority to require certain further documents.

22. Obligations in that document are cast upon both the disposer and the acquirer.  The extent of the requirements placed upon the disposer are the following:

    If you've sold the vehicle, complete and detach the Notice of Disposal section of this form and email to [address] or post to [address].  Do not give the Notice of Disposal to the acquirer.  For your own protection you are advised to identify the acquirer and inform [BB Service Centre] of their details.

23. The responsibilities of an acquirer also set out.

    1.Complete acquirer details on the left of this form.

    2.Attend [a BB Service Centre] to complete the transfer of registration within 14 calendar days of purchase or a penalty for late transfer will be charged. 

    3.[Is not relevant].

    4.[There is reference to stamp duty].

    5.[There is a reference to proof of identity and […] garaging address].

    6.If the vehicle is more than 6 years old with a GVM of 4.5 tonnes or less, a valid passed Certificate of Inspection must be presented at time of transfer.

24. It is the last of these matters which is controversial.  It did not appear to be controversial between the parties that the vehicle is more than six years old, with a GVM of 4.5 tonnes or less and accordingly, a passed Certificate of Inspection would need to be presented at the time of transfer.

25. The question is whose responsibility this falls to under the orders.  The orders cast the responsibility on the wife to do all things necessary as the disposer of the vehicle to affect the transfer, that is, to comply with the obligations set out in the registration document. It is true, as was submitted reasonably by Ms Pagan for the third party, that the roadworthy certificate is necessary to complete the transfer of registration, but this is not within the things necessary for the wife to do as a transferor. An example of why it is so is that no part of the order contemplates an obligation to improve the vehicle which, if it is not in fact roadworthy, would be required to obtain such a certificate.  Accordingly, under the terms of the orders the certificate of roadworthiness is the responsibility of a third party as contemplated by the registration document.  No order for further enforcement will be made and that application will be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       4 September 2024