Wolkowicz and Wolkowicz

[2008] FamCA 468

FAMILY COURT OF AUSTRALIA

WOLKOWICZ & WOLKOWICZ [2008] FamCA 468

FAMILY LAW – PROPERTY – Order to vacate – Duplicate certificates of title

APPLICANT: Mr Wolkowicz

RESPONDENT: Mrs Wolkowicz

FILE NUMBER: MLC 2507 of 2008

DATE DELIVERED: 4 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.A. Marchetti

SOLICITOR FOR THE APPLICANT: Moores Legal Pty Ltd

FOR THE RESPONDENT: In person

Orders

1. That the wife shall vacate the property at P by no later than 5.00pm on 20 June 2008 and the wife, by herself her servants and agents, shall be and is hereby restrained from entering or attending or attempting to enter or attend the property after that date.

2. That the wife shall have liberty to apply to the court upon short written notice to the husband and the court provided that such liberty shall be exercised before 5.00pm on 13 June 2008, and any application should be listed before me, if practicable.

3. That the warrant of commitment dated 3 June 2008 shall be and is hereby discharged and THE RESPONDENT shall be released without bail or bond.

4. That the husband’s application filed 19 March 2008 shall be otherwise dismissed save that he shall have liberty to apply to re-instate the application in the event that the wife does not comply with these orders.

IT IS NOTED

1. That the Registrar of Titles in Victoria is advised that the wife has failed to comply with orders of this court made on 5 November 2007 (a copy of which is attached) and is required as follows:

   (a)To cancel Certificate of Title Volume … Folio … containing the land in Lot 1 on Title Plan …8D;

   (b)To create a new folio of the Register and Certificate of Title for the said land; and

   (c)To deliver the new Duplicate Certificate of Title to the husband’s solicitors, Moores Legal.

2. That the Registrar-General of New South Wales is advised that the wife has failed to comply with orders of this court made on 5 November 2007 (a copy of which is attached) and is requested as follows:

   (a)To cancel the Certificate of Title for:

   (i)     Lot 3 in the Deposited Plan …6 in the Parish of D County of Y;

   (ii)    Lot 73 in Deposited Plan …1 in the Parish of D County of Y; and

   (iii)     Lot 168 in Deposited Plan …1 in the Parish of D County of Y

   (b)To create a new folio of the Register and Certificate of Title for the said land; and

   (c)To deliver the new Duplicate Certificate of Title to the husband’s solicitors, Moores Legal.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2507 of 2008

MR WOLKOWICZ

Applicant

And

MRS WOLKOWICZ

Respondent

REASONS FOR JUDGMENT

1. On 5 November 2007, Brown J made final property orders.  At that point, her Honour made strong observations and comments about the wife’s failure to engage with the litigation.  Her Honour made undefended orders.  They were clear and precise. 

2. The orders that are germane to the proceedings before me were for the wife to vacate the parties' P property by 7 January 2008, for the property to be sold, and for her to produce duplicate Certificates of Title in relation to the P property and three properties owned by the parties in D, New South Wales.  The wife was to advise the husband by 30 November 2007 if she intended to keep the three D properties, otherwise they were to be sold and the proceeds were basically to be distributed fifty-fifty between the parties. 

3. It is clear from the material that the husband, through his solicitors, has attempted to enforce those orders in a number of ways on a number of occasions.  There has been no response received in relation to those requests. 

4. He commenced enforcement proceedings with an application filed 19 March 2008.  He had difficulties serving that application.  The matter came before me, as it happens, on 16 April of this year.  I made an order for substituted service on the wife. 

5. On 7 May 2008 the matter came before Carter J.  Her Honour was satisfied that service had been effected and ordered a warrant for the arrest of the wife. 

6. Yesterday, 3 June 2008, that warrant was executed.  The wife was brought before me late in the afternoon.  She gave me no comprehensible answers in relation to my inquiries as to the location of the duplicate Certificates of Title.  She was kept in custody overnight, and arrangements were made for her to see a Legal Aid lawyer this morning for the case to proceed further.

7. At the start of court today, the Victoria Legal Aid lawyer, Ms Codooley, advised me that she had seen the wife, but she could obtain no instructions from her. 

8. This afternoon the matter has returned before me and there are now two main issues.  The first is how to set about getting the duplicate Certificates of Title.  The second is as to what arrangements to make in relation to the wife vacating the P property. 

9. So far as vacating the P property is concerned, quite simply the husband has an order and the wife should have vacated, as I said, in early January this year.  It is hard not to be sympathetic to the husband who appears on this material to be the innocent victim of his ex-wife’s behaviour, whatever the cause of that behaviour.  I am certainly not qualified to make a guess or an assessment of it.  In any event, court orders must be followed. 

10. The genuine concern is that if the wife returns to the home today, there will be an ongoing issue in relation to her removal.  She is a woman of nearly 60.  I have no certainty about her mental state.  I know that ultimately she will get money from the sale of properties but I have no material as to her short‑term financial or personal situation, though in the course of this afternoon when it came to the topic of this property, she did find her voice, and she said that she proposed seeing a lawyer in relation to her rights generally.  It is very late in the piece for that.  She may or may not be sincere.  She may or may not follow through with what she says.

11. In any event, very reasonably, the husband has acknowledged that there could be a short period - he wanted a period a little bit shorter than I propose - for the wife to go back to the home and to organise leaving that property. 

12. I propose giving her a deadline of 20 June 2008.  She must vacate by that day.  In the meantime, she can have liberty to apply before me for any orders, provided she applies by 13 June 2008.  If she does go to a lawyer and she has an application, it gives her the opportunity to make the application.  Otherwise, quite simply, the date that she must vacate the property is 20 June 2008.  I have discussed that with her.  She tells me she understands.  She is nodding now and she did repeat to me several times that she fully understood and in fact she added, "It would be a good time.  My son will come from overseas and help."

13. Dealing then with the duplicate Certificates of Title, again there has to be a degree of sympathy to the husband who has tried whatever could be tried to have this court order enforced.  His solicitor has written appropriate letters to the wife. The solicitor has written appropriate letters to the Registrar of Titles in Victoria.  His counsel has been in contact with the Registrar of Titles in Victoria and has made inquiries as to the situation in terms of the equivalent person or role in New South Wales, because that is where some of the properties are.

14. It is legally a slightly difficult issue.  The Victorian Transfer of Land Act does set out a procedure for the Registrar of Titles to create new Certificates of Title.  I understand from correspondence shown to me that the Registrar of Titles has indicated a degree of enthusiasm for that procedure, when talking with Mr Marchetti, the husband’s counsel.  However, the procedure is one for a court and a "court" is defined under the Transfer of Land Act as the Supreme Court or depending on the monetary value of the property, the County Court of Victoria.  Accordingly, I find it is the State court, not this court that has the jurisdiction to make the orders as sought.

15. I propose referring to the procedure discussed between counsel and the Registrar of Titles, to make a notation to my order, in the hope that the Title may be produced.  I have my misgivings as to whether that will occur, but this period over the next few weeks will also give the husband’s legal advisers the opportunity to take the matter to the Supreme Court if required, for orders that I imagine will be unopposed.

16. I had proposed ordering costs for the husband today because I am so concerned about the costs building up, but Mr Marchetti quite rightly has referred me to Brown J's orders which amply cover the costs situation.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  4 June 2008