Wolkowicz and Wolkowicz (No. 2)

[2008] FamCA 666

FAMILY COURT OF AUSTRALIA

WOLKOWICZ & WOLKOWICZ (NO. 2) [2008] FamCA 666

FAMILY LAW – PROPERTY – Wife’s refusal to comply with orders to vacate premises – Warrant of arrest

Family Law Act 1975 (Cth)

APPLICANT: Mr Wolkowicz

RESPONDENT: Ms Wolkowicz

FILE NUMBER: MLC 2507 of 2008

DATE DELIVERED: 2 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MARCHETTI

SOLICITOR FOR THE APPLICANT: MOORES LEGAL

COUNSEL FOR THE RESPONDENT: IN PERSON

Orders

1. That the application of the husband filed 23 June 2008 be adjourned to 9.30am on 4 July 2008.

2. That a warrant for the arrest of the wife MS WOLKOWICZ issue forthwith and IT IS REQUESTED that the Australian Federal Police do all things necessary as a matter of urgency to execute the warrant.

3. That upon the execution of the warrant, the wife be provided with a copy of the warrant and of this order.

4. Upon execution of the warrant, the wife be held in custody until the determination of the application referred to in paragraph (1) hereof and be brought before the Court at 9.30am on 4 July 2008. 

5. For the purposes of the execution of the said warrant, all members of the Australian Federal Police and all members of the police force for the State of Victoria are empowered and authorised pursuant to s 122A of the Family Law Act 1975 (Cth) to use such force and assistance as is necessary and reasonable to enable the execution of the said warrant.

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 2057 of 2008

MR WOLKOWICZ

Applicant

And

MS WOLKOWICZ

Respondent

REASONS FOR JUDGMENT

1. This is an application in the judicial duty list for the issue of a warrant for possession.  I am not comfortable about making the order in the terms of the application for reasons which I will refer to in a moment.  This is a long running and very sad case in which Brown J determined the entitlement of parties to property division, one of the orders that her Honour made was for the sale of the property.

2. The wife has undoubtedly refused to comply with orders, and I have been told that this is the eleventh return date before the Court.  Of those days the wife has not attended on six, and on two occasions when she has come to court it has been as a result of the execution of a warrant of commitment by the Australian Federal Police.  On the last occasion that the matter was before the court on 4 June 2008, Dessau J made it very clear that the wife was to vacate P property.  That order however, gave the wife a little bit of latitude because her Honour indicated that she had until 5 o'clock on 20 June to vacate. 

3. On 20 June and obviously upon vacating, the wife was restrained from re-entering or attending the property at all.  Dessau J obviously had little confidence that the order would be complied with because she gave the wife liberty to apply on written notice to the husband if the order created a problem.  It is noted now that on 2 July the wife has not made any application to the court, and accordingly the order stands.  The evidence in this case is quite clear.  The wife was still in occupation after 20 June.

4. Dessau J noted in her judgment that the wife having been brought to court on the day before, which was 3 June when the warrant was executed, she gave no comprehensible answers in relation to inquiries that her Honour made about the whereabouts of the relevant certificates of title.  Her Honour obviously decided that the wife was not cooperating so she kept her in custody overnight and made arrangements for her to obtain some legal advice. 

5. Victorian Legal Aid lawyer told her Honour on the following day, 4 June, that she could obtain no instructions from the wife.  Her Honour then sets out very carefully what should occur and it was quite clear that she intended that matter come to an end with the wife leaving.  As I said that has not happened. 

6. What I have before me is an affidavit of attempted service by Mr T.  Mr T is a process server.  He went to P property on 29 June armed with the application and affidavit filed in these proceedings on 27 June.  He had specific instructions to serve the wife.  What happened was that he had no reaction when he went to the property.  He had been advised by the husband that the wife would leave to go to church between 11.45 am and 12 noon.  That did not happen.  At 12.45 he rang the husband and told him that the wife was not coming out of the dwelling.

7. The evidence is that the husband then came to the property himself.  He spoke to the wife by telephone.  He found that the security screen had been locked from the inside, and when he spoke to her on the telephone she confirmed she was inside the home.  She advised that she did not intend to accept service of any court documents and purportedly indicated she did not intend to leave the home.  She said she had "holed herself" inside the house and was making arrangements with other people to deliver provisions for her.

8. He then gave instructions for a courier to drop the relevant documents at the home and I am satisfied that they were left at the front door for the wife's attention.  Whether she has read them in any detail or not is hard to say, but this situation cannot go on.  The orders of Brown J are clear, the orders of Dessau J are clear.  This is the third time that an application has been made for a warrant.  The dilemma is that the wife does not seem to have any intention of complying with the orders of the court to leave the property so that the property can be sold. 

9. I have indicated I am not prepared to make an order that the wife be imprisoned indefinitely, which is really what this is about.  It is the desire of the husband to get on with the sale of the property and to that end he needs the wife out of the way.  I am not at all comfortable about making that sort of order and simply attaching it to a warrant.  In my view that is the sort of order that should be made after the wife has had an opportunity to be heard on the question of the potential that she might remain in custody for a long time for failing to comply with the orders.

10. In the circumstances therefore the only order I propose to make today is for the issue of the warrant for the commitment of the wife and to have her brought here.  I have been told that there is a previous problem with the Australian Federal Police executing the warrant expeditiously and also as to exactly what their powers were to enter the property.

11. I propose to resolve both of those problems today by making a request that the Australian Federal Police execute the warrant urgently and bring the wife back to court where she is to remain in custody until I can determine the matter on Friday morning.  In addition I propose to make quite specific directions in the warrant that the Australian Federal Police are empowered to break and enter the property for the purposes of execution of a warrant.  This is a case that must be brought to an end for the sake of everybody including the wife.

12. In those circumstances I will make the order for the issue of the warrant. 

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  8 July 2008