Tillman and Tillman (No 3)

[2016] FamCA 637

FAMILY COURT OF AUSTRALIA

TILLMAN & TILLMAN (NO 3) [2016] FamCA 637

FAMILY LAW – S106A(1) order — registrar to sign documents in the place of the wife

APPLICANT: Mr Tillman

RESPONDENT: Ms Tillman

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1102 of 2014

DATE DELIVERED: 7 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No Appearance when called at the door of the Court

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1.Pursuant to s 106A(1) of the Family Law Act 1975 a Registrar of this Registry of the Court be and is hereby appointed to sign all necessary documents and give any necessary authorisations in writing to sell the property at B Street, Town C, United Kingdom in accordance with arrangements made by the husband who has conduct of the sale.

2.Any application which is filed by the husband before Friday 22 July 2016 in relation to bank accounts in the name of the children E born … 2001 and N born … 2002, or either of them, be set down for hearing before me as soon as practicable. Subject to the Court being satisfied that the wife has notice of the said further application, that application may be finally determined on the first return date of the application.

3.Otherwise the application of the husband filed on 11 May 2016 be and is hereby dismissed.

IT IS DIRECTED:

4.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tillman & Tillman (No 3) 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 MELBOURNE

FILE NUMBER: MLC 1102 of 2014

Mr Tillman

Applicant

And

Ms Tillman

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me as the hearing date of the husband’s application filed on 11 May 2016 in which he seeks orders pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”) to have a registrar of this court sign documents in the place of the wife, it being asserted that the wife has failed, neglected or refused to sign documents which are necessary to implement other orders of the court.

2. The orders sought to be enforced are those made by Cronin J on 22 January 2016. His Honour’s reasons for those orders appear on the court file, and I have read them. In particular, paragraph 5 provides that each party (that is, the husband and the wife) do all acts and things forthwith to sell the properties at Town D in the United Kingdom and at B Street, Town C in the United Kingdom, and for that purpose the husband be responsible for the conduct of such sales.

3. By his affidavit sworn 6 May 2016, the husband deposes that he has arranged for the marketing of the house at Town C in the United Kingdom but has been unable to get the wife to either execute documents or give instructions in relation to the marketing of the property.

4. Today the husband appears in person. The wife does not appear, either by herself or through a legal representative.

5. The husband has handed up, and I accept for filing, an affidavit of Ms Q, Process Server, in which Ms Q deposes to having served the documents by hand on the wife on 23 May 2016 at 6.12 pm at K Street, Suburb I in the State of Victoria. She deposes to being able to identify the wife because she recognises the wife from a photograph which was provided to her and which is annexed to her affidavit. The husband confirmed from the bar table that the person depicted in the photograph is, in fact, his wife. Furthermore, Ms Q deposes to the person served having signed an acknowledgement of service.

6. I have looked at the acknowledgement of service, I have observed the signature in the acknowledgement of service, and it is consistent, in my view, with the signature on the wife’s affidavit which was sworn or affirmed on 17 August 2015 in these proceedings and which is on the court file, and also of the acknowledgement of service attached to an affidavit of service in relation to the proceedings which were decided by his Honour. That document is at folio 55 on the court file.

7. Finally, Ms Q says that she had a conversation with the person served in which that person identified herself as the wife.

8. Section 106A (1) provides that if an order under the Act has directed a person to execute a deed or instrument and the person has refused or neglected to comply with that direction, and the court considers it necessary to, the court may appoint an officer of the court or other person to execute the deed of instrument in the name of the person to whom the direction was given.

9. I am satisfied that it is necessary for certain documents to be signed by the Registrar, and they are the documents which the husband describes as those relating to the sale of the property at Town C and to give effect to the orders made in relation to the dispersal of proceeds of sale.

10. The husband also seeks a similar order in relation to the signing and authorisation of documents relating to the control of the children’s bank accounts, which are in the name of the respondent wife. He seeks an order that the Registrar sign or execute documents relating to a transfer of the control of the children’s bank accounts in the name of the respondent wife.

11. His Honour’s orders made on 22 January 2016 do not require the wife to do any act or things in relation to moneys in her name which are held for the children, who are E, who is 15 years of age, and N, who is 14 years of age. As such, I am not satisfied that execution of documents are necessary within the meaning of section 106A (1) of the Act, and I will not, on the husband’s current application, make that order.

12. It does seem that the issue of the children’s funds should be determined sooner rather than later, so I will make an order that provides that any application filed by the applicant husband within the next 14 days be set down for hearing before me as soon as practicable, and I will then deal with it subject to being satisfied that the wife has been served with the application.

13. That application would necessarily be supported by some documentary evidence to verify the accounts in respect of which the husband seeks a transfer, and specify whether he seeks a transfer to himself of the funds absolutely or to himself as trustee for the children, or to the children themselves, given their ages.

14. From the bar table the husband says that he would be seeking a transfer of the moneys to the children directly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 July 2016.

Legal Associate:

Date: 8 August 2016