Visser & Drost (No 2)
[2023] FedCFamC2F 1368
•31 July 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Visser & Drost (No 2) [2023] FedCFamC2F 1368
File number(s): PAC 4220 of 2022 Judgment of: JUDGE STREET Date of judgment: 31 July 2023 Catchwords: FAMILY LAW – PROPERTY – Application for Adjournment – granted on conditions Legislation: Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bukari & Bukari (No 5) [2023] FedCFamC1A 108
Hannegan & Orlando [2023] FedCFamC2F 516
Rozenblit v Vainer (2018) 262 CLR 478
Division: Division 2 Family Law Number of paragraphs: 33 Date of hearing: 31 July 2023 Place: Sydney Counsel for Applicant: Ms L Judge Solicitor for the Applicant: Bell Lawyers Respondent: Appeared in person ORDERS
PAC 4220 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VISSER
Applicant
AND: MS DROST
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
31 JULY 2023
THE COURT ORDERS THAT:
1.The Court grants an adjournment of these proceedings fixed for a two-day final hearing commencing today on the following conditions:
(a)The Court will declare the applicant is entitled to immediate possession of the property situated at B Street, Suburb C, more particularly described in Certificate of Title folio identifier … (“The Suburb C Property”).
(b)The Court will order the respondent shall vacate the Suburb C Property on or before 18 September 2023.
(c)The Court will order that if the respondent fails to vacate the Suburb C Property on or before the 18 September 2023, an enforcement warrant pursuant to rule 11.56 will issued, authorising an enforcement officer to enter and to give possession of the Suburb C Property to the applicant and for removal of the respondent, as well as any other person not entitled to possession, and the removal of the respondent’s belongings, upon the filing of an affidavit by or on behalf of the applicant in accordance with rule 11.55 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2.An interim distribution of property order under section 79 of the Family Law Act 1975 (Cth) that the applicant is to pay the respondent the sum of $10,000 to be paid into the respondent’s bank account within 7days.
3.The respondent vacate the Suburb C Property on or before 18 September 2023.
4.If the respondent fails to vacate the Suburb C Property on or before 18 September 2023, an enforcement warrant pursuant to rule 11.56 is to be issued, authorising an enforcement officer to enter and give possession of the Suburb C Property to the applicant and for removal of the respondent as well as any other person not entitled to possession, and the removal of the respondent’s belongings, upon the filing of an affidavit by or on behalf of the applicant in accordance with rule 11.55 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
5.The respondent pay the applicant’s costs occasioned and thrown away by reason of the adjournment to be fixed in a lump sum by the Court after the filing of an affidavit in short form by or on behalf of the applicant as to the quantum of such costs within 14 days, and the respondent shall 14 days thereafter, file an affidavit and/or submissions as to the quantum of that lump sum.
6.The matter is fixed for a final property hearing commencing at 10:00AM on 16 and 17 November 2023 by video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
7.The Court extends time for the filing by the respondent of an amended response, an updated financial statement, a consolidated trial affidavit and a case outline on or before 20 October 2023.
8.The Court extends time to the respondent for compliance with the notice to produce filed 1 May 2023, to on or before 20 October 2023.
9.The parties file and serve a consolidated balance sheet on or before 27 October 2023.
10.Leave is granted to the parties to provide any proposed tender bundle by USB or email seven (7) days prior to the hearing dates.
11.Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
THE COURT DECLARES THAT:
12.The applicant is entitled to immediate possession of the property situated at B Street, Suburb C, more particularly described in the Certificate of Title folio identifier … (“The Suburb C Property”).
THE COURT NOTES THAT:
A.On 11 May 2023, the Court made an order that neither party, pursuant to s 102NA are entitled to cross-examine the other.
B.The respondent may still be entitled to seek legal aid, albeit earlier lawyers were provided to her that she failed to properly instruct and that the respondent must take appropriate steps both to seek legal aid, give proper instructions and must comply with the above orders.
C.If the respondent fails to comply with the above orders, on the next occasion the Court may proceed with the matter as an undefended hearing.
D.The applicant is the subject of an ADVO and should not enter the Suburb C Property whilst the respondent is present until the respondent has complied with the above orders or steps have been taken by the enforcement officer to give the applicant possession.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are property proceedings commenced on 3 August 2022 under Part VIII of the Family Law Act1975 (Cth).
On 11 May 2023, this Court vacated the hearing date of 12 May 2023. The Court refined the order made under s 102NA on that occasion. The Court extended time for the respondent to take procedural steps and fix the matter for a two-day hearing commencing today. The respondent failed to comply with the Court’s orders and sent emails seeking to blame her lawyers in relation to her failure to comply with the Court’s orders. Those emails were marked Exhibit A.
The email from the respondent’s Legal Aid lawyer contradicts the respondent’s assertions of a failure to be ready being the lawyer’s fault. The email from the lawyer makes plain it was the respondent that failed to take proper steps both in relation to the giving of instructions and in compliance with the Court’s orders. The emails identify the respondent is in the process of obtaining another Legal Aid lawyer. The respondent confirmed this morning that she needed an interpreter. The matter was stood down until 2 pm so as to obtain a Country D interpreter.
The respondent identified she wanted an adjournment. The Court explained that it may only grant an adjournment on certain conditions. The Court explained those conditions would include a declaration that the applicant is entitled to immediate possession of the Suburb C property, that the Court was likely to require the respondent to vacate the Suburb C property on a particular date and that the Court was likely to impose an entitlement for the applicant to seek an enforcement warrant if the respondent fails to vacate the property.
The respondent asserted that her failure to comply with the Courts orders was all the fault of the legal aid lawyers. The respondent asserted that there was a problem because the lawyers insisted on using her daughter as an interpreter. The respondent asserted that it was the lawyers who failed to take appropriate steps to prepare the matter for hearing. The emails, marked exhibit A, clearly contradict the assertions of the respondent. The Court, on the material before it, is satisfied that it was the respondent who failed to take appropriate steps to get instructions and to comply with the Court’s orders.
The Court raised with the respondent that the relationship appeared to be one of only a brief period of two or three years. The Court raised with the respondent that it was not apparent that she had made contributions in relation to the property of the applicant’s parents that he inherited. The respondent asserted that the relationship lasted eight years. It is difficult to understand that assertion, given the ADVO made against the applicant in late 2019 when the parties were married in 2016.
The Court is not determining today the issue of contributions in respect of the property or the final making of an order under s 79. It may be that the Court will find the relationship was of a longer duration when the respondent has complied with the Court’s orders. But given what appears to be a short duration of the marital relationship, a substantial order in relation to the property of the applicant is unlikely. The respondent asserted that she couldn’t vacate the property until she was able to purchase another property from the funds of the applicant. The respondent’s contention shows an unrealistic expectation in respect of the outcome of these proceedings. While it may be that the Court will make a modest super-splitting order, any order for payment of a sum, if any, further payment than the amount ordered today, is not likely to be substantial. Further, the Court is likely to permit the applicant to set off the lump sum costs order that the Court will determine in favour of the applicant against the respondent.
The respondent asserted that she sold property in Country D to come to Australia and made submissions that makes apparent the respondent believes the applicant is obligated to looking after her and her daughter, notwithstanding what appears to be the relatively short matrimonial relationship. The Court appreciates that a divorce order was not made until more recently, but the ADVO makes apparent that the relationship had come to an end as a matrimonial relationship.
The respondent explained that she is seeking another year’s extension of the ADVO while she continues to seek to occupy the Suburb C property inherited by the applicant. The Court accepts there was a period from about 2017 during which the daughter occupied the Suburb C property, at least at the respondent and daughter occupied the Suburb C property with the applicant.
It is not necessary for the Court at this stage to make final findings of fact in relation to the respondent’s continued occupation of that Suburb C property to the exclusion of its legal owner, the applicant. The Court is, however, satisfied that it is appropriate to impose conditions that bring the continuing occupation of the applicant’s Suburb C property by the respondent to an end as a price of the adjournment.
In relation to the adjournment application, the Court has taken into account the principles helpfully summarised by Dickson J in Hannegan & Orlando [2023] FedCFam2F 516 at [33] –[36]:
33.The Court has an inherent power to grant an adjournment or not where it is necessary to do justice between the parties.
34.In considering an application for adjournment, the Court is to consider:
•Whether the adjournment is for a reasonable period of time;
•Whether there is adequate reason given fort eh request for the adjournment;
•What prejudice would either party suffer as a result of the adjournment;
•Whether that prejudice could be met by a costs order;
•Any period of delay in making the application; and
•The overarching consideration to do justice between the parties.
35.The Family Law Case Management Central Practice Directions (‘CPD’) also serve to reinforce many of these important principles.
36.Paragraph 3 of the CPD sets out 10 core principles which underpin the exercise of the Family Law jurisdiction and are designed to facilitate the resolution of Family Law proceedings. Paragraph 3.3 of the CPD provides that the overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Paragraph 3.10 provides that non-compliance with orders (amongst other things) will be taken seriously by the Court. Non-compliance is said to potentially lead to serious consequences for parties including the making of costs orders against a non-compliant party.
The Court has also taken into account the power of adjournment recognised in s 79 as well as the principles in s 43 of the Family Law Act1975 (Cth) and the case management principles in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
In relation to the considerations identified by Dickson J, the adjournment will be for a period that facilitates the respondent obtaining legal aid representation and complying with the Court’s orders. The Court does not accept that there was an adequate explanation for the request for an adjournment by the respondent. The lack of preparation by the respondent appears to be due to the failure of the respondent to take proper steps to give instructions and comply with the Court’s orders.
The Court, however, accepts that the respondent would suffer prejudice if the adjournment was refused. That is because, on the material before the Court, there is a possibility that the respondent will be able to still get further representation from Legal Aid through Commonwealth funding because of the s 102NA order. The Court is satisfied that this is a case where, under s 117, a costs order can be made in relation to the prejudice occasioned to the respondent. The Court notes that the email exchange seeking the adjournment was only recently forwarded to the Court. The Court must give effect to the overarching consideration to do justice between the parties. The Court accepts the respondent’s submission that her case is not ready and that unless an adjournment is granted, she won’t be able to properly advance her facts and contentions in relation to the property order issues. The Court has also taken into account the guidance of the learned Austin J in Bukari & Bukari (No 5) [2023] FedCFamC1A 108 at [21] albeit dealing with a different type of discretion.
21.By reference to Full Court authorities, the following factors are liable to influence the exercise about whether or not to reinstate appeals which are deemed abandoned by reason of non-compliance with orders:
(a)The extent of the delay, whether there is an adequate explanation for it, and any relevant consequences of the delay;
(b)The nature of the litigation and the consequences for the parties of the grant, or refusal, of the application;
(c)The prospects of the appeal succeeding if reinstated; and
(d)Whether refusal of the re-instatement application would constitute an injustice.
In this case the Court is not satisfied there was an adequate explanation for the adjournment. The Court has taken into account the nature of this litigation in this case under Part VIII and the limited value of the property of the applicant that appears to be the subject of the orders being sought by the respondent. The Court has also taken into account that the consequences of a refusal of an adjournment may adversely impact the respondent in respect of the quantum of any order under s 79.
The Court has considered that the consequences of the proposed adjournment would be unless conditions were imposed that the respondent would continue to occupy the Suburb C property the legal title for which is in the applicant. When there has already been one adjournment occasioned by reason of circumstances that the Court attributes to being no fault of either party. Nonetheless, an adjournment without appropriate conditions deprives the applicant of the real asset of which he is possessed. On no view, should the respondent be entitled to continue to occupy the property the legal title of which resides in the applicant when this is not a case where there is any prospect that the Court would order a substantial transfer of that asset to the respondent. It is not appropriate for the respondent to hold the applicant hostage by continuing to remain in occupation of the property. The Court accepts the respondent’s submissions that she has no assets and is in receipt of child benefit supports. The Court also accepts that both the respondent and her daughter have health issues. If the Court is satisfied that it would be unjust to simply adjourn the proceedings without imposing appropriate conditions in the circumstances of this case.
As identified, there is a small amount of matrimonial property to be the subject of a s 79 final hearing. The applicant’s case outline for the hearing today identified a proposal of a small payment to the respondent and a small amount of super splitting. The applicant indicated a willingness to pay a small amount, on one view reflecting a proposed final order of $10,000 to the respondent by way of interim property distribution. The Court will return to that interim distribution, but proposes to, and has proposed to make an order for that sum of $10,000 to be paid within seven days to the respondent.
In the circumstances of this case, the Court is satisfied that it is just to order and impose conditions upon the respondent as the price of obtaining an adjournment and that that those conditions are consistent with doing justice between both parties. The Court is satisfied that the conditions are in accordance with the interests of the administration of justice. The Court finds a refusal to impose such conditions does a continuing injustice to the applicant for which the applicant is unlikely to recover any meaningful order because of the parlous situation of the respondent.
The Court does not accept the respondent’s submission that she needs a substantial payment to be able to vacate the premises. For the reasons already given, this is not a case where it is likely the respondent would receive a substantial payment in relation to the limited property of the applicant. The Court is satisfied that the payment of $10,000 is sufficient to facilitate the respondent finding alternative location within the time period that the Court proposed to order for vacating the premises.
The respondent asserted she needed three months to vacate the premises because of her mental health and that of her child, her limited financial means, and because of her limited understanding of English and need for an interpreter. The applicant submitted that four weeks after the payment of $10,000 would be sufficient for the respondent to vacate the premises. Taking into account and accepting the respondent’s difficulties of language in understanding English and need for an interpreter, the Court is satisfied that a six-week period to vacate the premises after receipt of the $10,000 is sufficient and just.
In relation to the principles concerning the issue of an enforcement warrant, the Court has taken into account the principles identified in paragraphs [47] – [51] by Dickson J in Hannegan & Orlando [2023] FedCFam2F 516:
47.All orders made pursuant to the Act me be enforced by a Court having jurisdiction under the Act.
48.The Court has discretion with respect to the enforcement of orders made pursuant to the Act.
49.The Court may issue a warrant for possession authorising an enforcement officer to enter the property described in a warrant and give possession of the real property to the person entitled to possession.
50.Rule 11.62 provides for the powers available to an enforcement officer when enforcing a warrant. This includes the power to enter a property and remove any person who is not lawfully entitled to be on the property.
51.The Court cannot interfere with a final property order save by appeal or pursuant to section 79A or section 90SN of the Act. The Court does have the power to make any ‘machinery’ or ‘consequential orders’ necessary to give effect to the terms of orders made.
The Court has statutory power under s 80(1)(i) of the Family Law Act 1975 (Cth) to make orders on conditions. It is apparent to the Court in this case that it is necessary to provide the enforcement step of an enforcement order if the respondent has failed to vacate and comply with the Court’s order. The conditions upon which the adjournment is granted are not ones that should be treated as nugatory by reason of the failure of the respondent to vacate the premises.
The Court has ample power to enforce its orders pursuant to s 105 of the Act. In the circumstances of this case, the Court is satisfied that the interests of the administration of justice warrant facilitating the issue of the enforcement order if the respondent has failed to vacate the premises. The Court is satisfied that it is in the interests of the administration of justice to facilitate the issue of the warrant being part of the condition upon which an adjournment was granted.
In relation to the proposed interim distribution order under s 79, the Court must take into account the same principles and follow the same four-step approach as in relation to a final order. The balance sheet in the case outline of the applicant identifies what appears to be the limited assets of the parties and the legal title of the applicant to the Suburb C property, subject of an agreed valuation.
The Court accepts that there has been some contribution, financial and non-financial, during the relationship by the respondent. At the moment, that contribution appears to be of little, if any, significance in relation to the Suburb C property inherited by the applicant. The Court accepts that it is just and equitable that there be some property adjustment, given the duration of the relationship and the matrimonial contributions of the respondent. The Court has taken into account the respondent’s assertion that she provided assistance to the applicant’s mother.
In relation to the section 75(2) considerations, the Court has taken into account the age of the parties identified in the chronology of the applicant and that the respondent appears to be of poor health. The Court has taken into account that the only assets appear to be those of the applicant, as identified in the balance sheet and that the respondent is unable to work. The Court appreciates that the respondent has been looking after her daughter who has special needs and that the daughter lived with the applicant for a short period, but not as a child.
The Court has taken into account that the respondent is in receipt of government benefits in relation to her child and that the respondent does not work. The Court has taken into account, on a tentative view at this interim stage, that the ADVO suggests the parties separated in late 2019, having married in 2016. The Court has not made any maintenance order in the circumstances of the present case and is not satisfied the applicant is able to do so. The Court is making an interim order, albeit that the Court accepts the respondent may have other small creditors.
The Court has identified on the evidence what appears to be the short duration of the relationship. This is not a case where the Child Support (Assessment) Act 1989 (Cth) is relevant. The Court considers that another fact or circumstance that is relevant is the continued occupation after the breakdown of the matrimonial relationship of the applicant and her daughter in the property inherited by the applicant. The Court is satisfied that it is just and equitable to make an interim property order distribution in the sum of $10,000 by the applicant to the respondent.
The Court is also satisfied that in the circumstances it is appropriate to make the declaration under the condition upon which the adjournment was granted as to the possession of the property by the applicant. The Court is satisfied that such a condition in relation to the declaration accords with the interests of the administration of justice and is just to both parties.
In relation to costs, the Court has taken into account the observation of Keane J inRozenblit v Vainer (2018) 262 CLR 478 at [42]:
Litigation is sufficiently stressful and expensive for all concerned without the unnecessary aggravations of additional costs, stress, distraction and delay occasioned by inefficiency, incompetence or sheer disregard of the rules. To the extent that the contention advanced on behalf of [the appellant] reflects an assumption that inefficiency or incompetently conducted litigation, and the waste in terms of time and money inflected upon the other party or parties, is nevertheless consistent with the promotion of access to justice because the end may ultimately justify the means, that assumption must be rejected. Inefficient or incompetent conduct of litigation may cause injustice even if it is not intended to do so. Litigation that is conducted inefficiently, incompetently or in disregard of the rule by one party is not less oppressive to the other party because it is not intended to be oppressive…
(Footnote omitted)
The Court has taken into account under s 117 the considerations required under s 117(2A). While the circumstances of the parties are identified in the balance sheet, the Court is satisfied that the lump sum order can be brought to account at the final hearing. The Court has taken into account that the respondent has received and is seeking to continue to get the benefit of Legal Aid.
The Court has taken into account the conduct of the respondent in failing to give appropriate instructions and take appropriate steps to comply with the Court’s order for trial commencing today. The Court is satisfied that the costs on this occasion were necessitated by the failure of the respondent to comply with the Court’s orders for the hearing that was intended to take place. The Court also has taken into account that the proceedings have been adjourned as a result of the conduct of the respondent.
Taking into account the whole of those considerations, the Court is satisfied that there are circumstances that justify the Court in making a lump sum costs order in favour of the applicant. It is for these reasons the Court made the orders earlier pronounced today.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the published ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 15 November 2023
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