Vasilias and Vasilias (No. 3) - [2008] FamCA 407

FAMILY COURT OF AUSTRALIA

VASILIAS & VASILIAS (NO. 3)

[2008] FamCA 407

FAMILY LAW – ORDERS – Variation of final property orders – machinery provisions as distinct from substantive orders

Family Law Act 1975 (Cth)

Bray v Bray (1988) FLC 91-968
B & B (unreported, Full Court of the Family Court of Australia, Fogarty, Nygh & Kay JJ, 7 August 1992)
Mullane (1983) FLC 91-303

APPLICANT WIFE:

Mrs Vasilias

RESPONDENT HUSBAND:

Mr Vasilias

RESPONDENT PATERNAL

GRANDPARENTS:

Mr and Mrs Vasilias (Snr)

THIRD RESPONDENT:

Mr RW

FILE NUMBER:

MLF

3158

2005

DATE DELIVERED:

19 May 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR CANTWELL

SOLICITOR FOR THE APPLICANT:

HOGG & REID

COUNSEL FOR THE RESPONDENT:

IN PERSON

SOLICITOR FOR THE RESPONDENT:

BERGER KORDOS

COUNSEL FOR THE RESPONDENT:

MR ROCKMAN

SOLICITOR FOR THE RESPONDENT:

ROCKMAN & ROCKMAN

Orders

I make the following orders:

Paragraph 1 of the orders made on 26 February 2008 be amended, and the settlement date be extended to 16 June 2008.
The husband do all act and things forthwith and sign any necessary documents to authorise the ING Bank to book and effect settlement in respect of the property at R, and in particular the husband sign the mortgage discharge request form.
That in the event that the husband fails forthwith to sign those documents and comply with paragraph 2, then any document or authority required to enable settlement to proceed shall be signed in the name of the husband by a registrar of the Melbourne Registry of this court pursuant to s 106A of the Family Law Act.
In the event that the husband is in default pursuant to paragraph 2 of these orders, the filing of an affidavit by the solicitor for the wife showing the husband has failed to comply with paragraph 2 shall be sufficient evidence to enable the said documents to be executed in the name of the husband.
I order that the husband pay to the wife the sum of $2387 costs. That sum be adjusted in the settlement of the sum payable by the wife to the husband.

IT IS NOTED that publication of this judgment under the pseudonym Vasilias & Vasilias is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3158 of 2005

MRS VASILIAS

Applicant

And

MR VASILIAS

Respondent

REASONS FOR JUDGMENT

I have before me today an application in a case which has been filed today with my leave, and which on the husband's version was served upon the solicitor on the record on Friday. It seemed to me looking at the affidavit in support of the application that there can be no argument about the fact that the solicitors for the husband at least, if not the husband himself, were aware that the application was on the way.
The husband appears for himself today, notwithstanding the solicitors who…

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: [2008] FamCA 407
Decision Date: 19 May 2008

CaseChat Overview and Summary

In the matter of *Vasilias and Vasilias (No. 3)*, Cronin J of the Family Court of Australia was required to determine applications concerning the settlement of a property and the husband's compliance with previous court orders. The dispute centred on the husband's alleged failure to take necessary steps to facilitate the settlement of a property located at R, which was a crucial element in the overall property settlement between the parties.

The primary legal issues before the court were whether the settlement date for the property should be extended and whether the husband had failed to comply with his obligations to authorise and effect settlement. The court also considered the appropriate orders to ensure the settlement could proceed, including the potential for court officers to execute documents on the husband's behalf.

Cronin J reasoned that the husband's non-compliance with his obligations regarding the property settlement warranted intervention. The court applied principles of equity and the court's inherent power to ensure its orders were effective. Section 106A of the *Family Law Act 1975* (Cth) was specifically invoked, empowering the court to direct that documents be signed by a registrar in the name of a party who fails to comply with an order. The court also ordered the husband to pay the wife's costs, with this sum to be adjusted in the final settlement between the parties.

Orders

Orders of the court

I make the following orders:

Paragraph 1 of the orders made on 26 February 2008 be amended, and the settlement date be extended to 16 June 2008.

The husband do all act and things forthwith and sign any necessary documents to authorise the ING Bank to book and effect settlement in respect of the property at R, and in particular the husband sign the mortgage discharge request form.

That in the event that the husband fails forthwith to sign those documents and comply with paragraph 2, then any document or authority required to enable settlement to proceed shall be signed in the name of the husband by a registrar of the Melbourne Registry of this court pursuant to s 106A of the Family Law Act.

In the event that the husband is in default pursuant to paragraph 2 of these orders, the filing of an affidavit by the solicitor for the wife showing the husband has failed to comply with paragraph 2 shall be sufficient evidence to enable the said documents to be executed in the name of the husband.

I order that the husband pay to the wife the sum of $2387 costs. That sum be adjusted in the settlement of the sum payable by the wife to the husband.

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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