Vrebac and Vrebac

[2019] FamCA 579

FAMILY COURT OF AUSTRALIA

VREBAC & VREBAC [2019] FamCA 579

FAMILY LAW – PROPERTY – interim orders – where the husband seeks to reside in one of two units built for investment purposes by the parties – where the wife seeks orders that the husband be restrained from living in or attending the premises of either unit – where previous orders indicate the units are to be completed and listed for sale – where previous orders allow for the wife to complete the construction of the units – where the units have not been completed – where neither unit has been issued a certificate of occupancy –  where the units are currently being marketed for sale – orders that the husband be restrained from entering on or taking possession of either unit.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Vrebac

RESPONDENT: Mr Vrebac

FILE NUMBER: MLC 2942 of 2018

DATE DELIVERED: 18 June 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grant

SOLICITOR FOR THE APPLICANT: Sayer Jones

SOLICITOR ADVOCATE FOR THE RESPONDENT: Mr Ryan

SOLICITOR FOR THE RESPONDENT: Bailey Timms Lawyers

Orders

1. That until further order the husband be and is hereby restrained from entering on or taking possession of the property situated at and known as 1 C Street and 2 C Street Suburb D in the State of Victoria;

2. That in the event that the husband has not removed one or more of his motor vehicles from the property at C Street Suburb D within 7 days, the wife be at liberty to appoint B Company to tow the vehicles away from the property;

3. That the time for compliance with the subpoena to produce documents directed to E Pty Ltd and F Pty Ltd, be extended to the directions hearing listed at 9.30 am on 28 June 2019;

4. That the applicant wife cause a sealed copy of these orders to be provided to each of the witnesses referred to in order 3 hereof within 72 hours;

5. That all extant interim applications be otherwise dismissed. 

AND THE COURT NOTES:-

That in the event that one or both of the witnesses referred to in Order 3 hereof fails to comply with the subpoenas, the wife will seek leave to make application for the issue of a warrant of arrest at the Directions Hearing.

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 Vrebac & Vrebac 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 2942 of 2018

Ms Vrebac

Applicant

And

Mr Vrebac

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon the wife’s Application in a Case filed 4 June 2019.  That application is supported by the wife’s affidavit filed the same date.  The part of the wife’s application that has been argued before me today relates to her application to restrain the husband from entering or taking possession of the property situate at and known as 2 C Street, Suburb D (“[2 C Street]”). 

2. The husband opposes the wife’s application, and indeed, seeks to occupy the aforementioned property.  In support of his position, the husband relies upon his Response to Application in a Case filed 14 June 2019 and his affidavit filed the same day.

3. The background to the matter is as follows. 

4. The wife is Ms Vrebac who is aged 39 years.  She is engaged in employment at a company in the finance industry. 

5. The respondent husband is Mr Vrebac, aged 50 years.  He is a manager in the construction industry. 

6. The parties commenced cohabitation in August 2008 and married in 2009.  Separation occurred in September 2017. 

7. There is one child of the marriage, X, who is aged six years.  X lives with the wife. 

8. Proceedings were commenced in the Federal Circuit Court in 2018.  During the course of the proceedings in that Court, orders were made by Judge O’Sullivan on 28 June 2018 (“the June 2018 Orders”). 

9. The June 2018 Orders made by his Honour related to the completion of a property development of two units at C Street in Suburb D, they being the properties the subject of the application before me today (“the C Street Properties”). 

10. The orders made by Judge O’Sullivan that day which are relevant to the current issues, include Order 10, which provides that the wife be responsible for the completion of the C Street Properties.  There were also consequential orders made in respect of the completion of the townhouse development at C Street.  Further, there were orders made that upon completion of the C Street Properties, the parties do all acts and things necessary to sell the two townhouses built on the land at C Street. 

11. The June 2018 Orders also made provisions for how the properties were to be sold.  The selling agent was identified and orders were made in relation to how the proceeds of sale of that property were to be applied.  Importantly, there was provision made at that time for each party to receive $80,000 by way of interim property settlement.

12. It seems to be common ground between that parties that there has been difficulties with the completion of the C Street Properties.  The position as it presents itself to the Court today is that the properties are still incomplete.  A certificate of occupancy has not issued in respect of either of those properties.  There are payments outstanding to contractors and earlier today I made orders by consent that will at least address the manner of payment for one of the building contractors who has supplied windows for the properties. 

13. An issue has emerged between the parties as a result of the husband being evicted from his rental accomodation.  The husband deposes that he had notice of the proposed action by the landlords who evicted him in April 2019.  The wife deposes in her affidavit that the husband in response to that positon informed her of his intention to occupy [2 C Street].

14. The wife deposes as to an email received by her lawyers on 30 May 2019 in which a request was made by the husband to occupy that property.  On 31 May 2019 the wife deposes that she instructed her lawyers to send a letter to the husband’s lawyers setting out the reasons as to why it would be inappropriate for the husband to occupy the unit.

15. In that letter reference was made to the fact that a certificate of occupancy has not issued in respect of the unit; therefore it was said that the unit could not be occupied at this time.  She pointed to the fact that there were other units in Suburb G available for the husband to occupy.  Further, she relied upon the fact that in her capacity as manager for the completion of the properties pursuant to the June 2018 Orders she is required to attend the C Street Properties on a regular basis.  It was put that it would be inappropriate for the husband to occupy [2 C Street] in those circumstances, particularly given there is a current intervention order in place.

16. The husband’s lawyers responded to that correspondence advising that the husband would be attending the C Street property that evening and moving in over the weekend.  [2 C Street] is currently being marketed for sale; there was an ‘open for inspection’ scheduled for 1 June 2019.  The wife deposes at paragraph 8 of her affidavit that she received notice from the selling agent that, indeed, on that day the husband and his partner were at the property and requested a key from the selling agent.  That request was declined.

17. The husband on that day parked two cars at the property.  Ultimately the police were called and attended the property after the ‘open for inspection’.  At the time of police attendance the wife deposes that the husband and his partner were attempting to enter [2 C Street] via the garage.  It is having regard to that conduct that the wife seeks orders restraining the husband from entering upon or occupying the property.

18. Further, she relies upon the following matters.  Firstly, she notes that the husband is not a registered proprietor of the property.  She refers and relies upon orders previously made with respect to the sale of the two units.  As I have noted the properties are currently being actively marketed. 

19. The position remains that a certificate of occupancy has not yet issued.  As such, the property is not insured and it is submitted that there may well be a situation where the builders’ insurance is voided if a party takes occupation of the property absent the necessary certificates.  The wife also points to the fact that the husband has made no mortgage repayments in relation to the C Street Properties since the parties’ separation.  The mortgage on those properties is currently in arrears, the wife indicating to the Court that she has not been in a position to meet mortgage payments since about October last year.

20. The position with respect to the certificate of occupancy is one acknowledged by the husband.  Indeed, in his own affidavit filed 14 June 2019 he acknowledges at paragraph 17 that there are a number of outstanding issues which prevent the issue of the certificate of occupancy.  Having regard to the June 2018 Orders made with respect to the wife’s role in the completion of the C Street Properties and the orders made with respect to the sale of the properties, I am satisfied that at this point in time it would be inappropriate to permit the husband to occupy the property.

21. It is clear that it was the intention of both parties that the C Street Properties be completed and marketed for sale. It is evident from the orders made in June 2018 that it was anticipated that those matters would have been finalised that year, that is, in 2018.  It is unfortunate that there have been delays in the completion of the project.  The delays have impacted upon the parties’ ability to extinguish liabilities, and as a result their equity in the properties has diminished. 

22. There are current intervention orders in place.  I am satisfied that it is necessary for the wife to have the ability to access the C Street Properties to ensure that all steps are taken to enable completion of the properties and the issue of the certificates of occupancy.  In those circumstances I am satisfied, having regard to the manner in which the husband has conducted himself with respect to his attendances at the property in the face of the wife’s objection, that it is appropriate that orders be made restraining his occupation of the property. 

ORDERS DELIVERED

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 June 2019.

Associate: 

Date:  18 June 2019