Wolter and Wolter (No. 2)

[2014] FamCA 485

FAMILY COURT OF AUSTRALIA

WOLTER & WOLTER (NO. 2) [2014] FamCA 485

FAMILY LAW – CONTRAVENTION – Where the husband alleges there have been 23 contraventions – Where only one count of one of the Contravention Applications is valid – Where the contravention falls within the category of “less serious contravention” – Where no penalty was placed on the wife – Where the remaining Contravention Applications were dismissed.

FAMILY LAW – CONTRAVENTION – Where the wife alleges there have been three contraventions – Where the wife’s applications were dismissed.

FAMILY LAW – COSTS – Where the wife seeks an order that $30,000 from the husband’s share of the proceeds of sale of one of the parties’ properties be held in a controlled money account as security for the wife’s costs – Where it is likely that the wife will have difficulty enforcing any orders for costs made in her favour – Where an order made for the wife’s costs to be secured.

FAMILY LAW – COSTS – Where the wife sought costs on an indemnity basis of three applications made by her for an order that a Registrar of the Family Court sign documents in place of the husband pursuant to section 106A of the Act – Indemnity costs awarded to the wife.

Family Law Act 1975 (Cth) – ss 65DAC, 70NEB, 117(2A)(d)

Prantage & Prantage [2013] FamCAFC 105

APPLICANT: Mr Wolter

RESPONDENT: Ms Wolter

FILE NUMBER: SYC 5747 of 2009

DATE DELIVERED: 2 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 10 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watkins

SOLICITOR FOR THE APPLICANT: Shipton & Associates Solicitors

THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That the husband’s Application in a Case filed 5 March 2014 is withdrawn and dismissed.

2. That the wife has contravened Order 26 made 21 December 2012 in that she did not do all acts and things and sign all documents necessary to maintain a current passport for each of the children but, that in the circumstances of the case, no penalty should be imposed.

3. That the wife’s Application for Contravention orders filed 1 April 2014 is dismissed.

4. That the husband pay the wife’s costs on an indemnity basis of her three applications for the Registrar to sign documents in place of the husband filed 16 December 2013, 9 January 2014 and 18 March 2013.

5. That from the husband’s share of the proceeds of the sale of V Street, N; or E Street, Y; or U Street, L (whichever is the first to settle) the sum of $30,000 be paid to a controlled money account held by the wife’s solicitors to be held on account of any order for costs in favour of the wife relating to the enforcement of the orders of 21 December 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Wolter & Wolter (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:

Mr Wolter

Applicant

And

Ms Wolter

Respondent

REASONS FOR JUDGMENT

1. The parties in these proceedings, Ms Wolter (“the wife”) and Mr Wolter (“the husband”) conducted defended proceedings in relation to their property and the parenting of their children which concluded on 10 May 2012 and in which final orders were made on 21 December 2012. An amendment to those orders was made pursuant to the slip rule by orders made on 13 May 2014.

2. The parties owned property at D, N, Y and L and the orders in relation to property settlement relate to the sale, and the distribution of the proceeds of sale, of each of those properties.

3. In addition, the orders related to the parenting arrangements for the parties three children, M now aged nine years and twins, C and A now aged almost seven.

THE APPLICATIONS

1. Now before the Court are further applications filed by the parties as follows:

   1.      The wife’s application, filed 15 January 2014, for an order for costs in relation to three applications pursuant to section 106A of the Family Law Act 1979 (Cth) (“the Act”) for the execution of documents which the husband failed to sign in order to give effect to the property orders.

   2.      The husband’s application, filed 24 February 2014, in relation to alleged contravention by the wife of both property and parenting orders.

   3.      The husband’s application filed 5 March 2014 for orders, the terms of which are set out below:

   i.Emergency proceedings

   ii.That orders be sought to stop all sales of property till both Application in the and Contravention in the case be heard

   iii.That affidavit by [the husband] filed in this matter support this application

   iv.That [Mr P’s] Affidavit filed in the matter to support of this application

   v.That all contraventions be dealt with per orders SYC5747 of 2009

   vi.Affidavit attached (as per original)

   4.      The wife’s response to that application in which she seeks, inter alia, security for costs of enforcement and other machinery orders.

   5.      The application of the wife filed 1 April 2014 alleging that the husband has contravened parenting orders.

2. Each of those applications was listed before me for determination on 10 June 2014.

3. The husband was not legally represented. He relied on five separate affidavits. None of the affidavits contained narrative evidence from the husband. All consisted of annexures totalling some 634 pages. Those affidavits which were filed on the same date were distinguished by the number of annexures each contained.

4. In the course of his presentation of his evidence, the husband was required to identify which documents or pages of the annexures referred to his various contentions.  

THE HUSBAND’S APPLICATION IN A CASE FILED 5 MARCH 2014

1. The gravamen of this application appears to be that the sales of the properties owned by the parties at D, N, Y and L be stayed. The Y and D properties have been sold and the sales have settled.

2. The husband conceded that there was no utility in his application insofar as those properties were concerned.

3. He withdrew the application.

4. Had he not done so, the application would have been dismissed.

5. The orders which were made in the substantive proceedings provide, at order 2, that the husband shall forthwith do all acts and things and sign all necessary documents to sell those properties.

6. The orders contain detailed provisions in the event that the properties are not sold immediately.

7. Insofar as it is the husband’s application that those sales not proceed, that is an application to vary the substantive orders made in the property settlement.

8. No appeal has been lodged and there are no substantive proceedings before the Court which could ground an application for a stay of the orders for property settlement.

9. Accordingly the Application in a Case filed 5 March 2014 is incompetent.

THE CONTRAVENTION APPLICATION FILED BY THE HUSBAND ON 24 FEBRUARY 2014

1. A reference to orders in relation to this application is a reference to the orders made 21 December 2012.

2. The first eight of the alleged contraventions related to alleged contraventions of the orders for adjustment of property. In relation to each asserted contravention, the husband set out firstly the order which was alleged to have been contravened and secondly the manner of the alleged contravention. The allegations of the husband largely relate to a failure on the part of the solicitor for the wife or the wife to respond to communications from him. The allegations lack any particulars and it is not possible to ascertain from the application when and what is alleged to have been done or left undone.  

3. The application on its face, in relation to the first eight allegations, does not disclose a contravention of a particular order.

4. The husband was given the opportunity to formulate charges relating to contravention of specific orders but was unable to do so and accordingly the wife was not charged in relation to the first eight counts.

5. Clauses 9 to 23 inclusive of the application relate to parenting matters.

NINTH ALLEGATION

1. Order 18 provides that “Subject to periods which pursuant to these orders the children live with the father, they shall live with the mother”.

2. The husband alleged “The respondent without reasonable excuse failed to respond to text messages sent to the mother and emails and letters to her solicitor”.

3. The complaint discloses no breach of the order and I declined to charge the wife.

TENTH ALLEGATION

1. The husband alleged:

   The mother has now on two occasions demanded that the children go with her on Friday after school when they are to go into the father’s care without any reasonable excuse that the Friday was time with the mother. The father had texted her on the second occasion as to avoid this in front of the children, but the mother refused to communicate back.

2. The husband gave no particulars as to the dates upon which he asserted the wife contravened the orders and has not established that the dates alleged are dates upon which the children, by virtue of the orders, should have been in his care.

3. The husband was given every opportunity to indicate to the Court what evidence in his affidavit he relied upon in relation to these charges so that the charge against the wife could be formulated.

4. There was no evidence to support this allegation and I declined to charge the wife with a contravention.

ELEVENTH ALLEGATION

1. The eleventh allegation related to Order 22(a) which provides that the parties shall each provide to the other copies of school reports and school newsletters.  

2. The husband alleged “The respondent without reasonable excuse failed to respond to text messages sent to the mother requesting information as required by the children”.

3. The husband was unable to identify any evidence from which a charge might be formulated and I declined to charge the wife in respect of this allegation.

TWELFTH ALLEGATION

1. The husband asserts that the wife has not made the children’s homework available to the father as she is required to do by the provisions of Order 22(b).

2. He alleged “The respondent without reasonable excuse failed to respond to text messages sent to the mother has not made available children’s homework as required each week”(sic).

3. No particulars were given as to the times or dates of the alleged contraventions.

4. The husband was unable to identify evidence that the children, at the times alleged, had any homework which should have been referred to him.

5. Accordingly, I declined to charge the wife in relation to this allegation.

THIRTEENTH ALLEGATION

1. The husband alleged that the wife did not notify him of parent/teacher meetings and school functions in accordance with Order 22(c).

2. He alleged that she failed to respond to text messages sent to her in relation to these matters.

3. No particulars were given as to the times or dates of the alleged contraventions.

4. The husband was unable to identify evidence that the wife had failed to comply with her obligation pursuant to the order.

5. Accordingly, I declined to charge the wife in relation to this allegation.

FOURTEENTH ALLEGATION

1. The husband alleged that the wife has not advised the husband that the children are spending between one and three nights each week with the maternal grandparents as, he alleges, she is required to do by the provisions of Order 22(e).

2. No particulars were given as to the times or dates of the alleged contraventions.

3. The husband was unable to identify evidence that the wife had failed to comply with her asserted obligation pursuant to the order.

4. It was not suggested by the husband that he was unaware of the identity of the children’s maternal grandparents or their whereabouts. Insofar as the order requires the wife to give “details of any other persons entrusted with the care of the children”, I do not interpret that order as requiring the wife to give information to the husband which was already well known to him.

5. Accordingly, I declined to charge the wife in relation to this allegation.

FIFTEENTH ALLEGATION

1. The husband alleged that the wife has not complied with her obligation to provide a destination and contact numbers in relation to holiday travel in January 2014 as she is required to do by the provisions of Order 22(g).

2. The wife was charged that she failed to give details to the husband of the destination and contact numbers in relation to a holiday taken by the children.

3. The wife denied the charges.

4. At the appropriate time, submissions were made in relation to the establishment of a prima facie case in relation to this charge.

5. Counsel for the wife submitted that the husband had not made out the charge. There was no evidence to establish when it was alleged the holiday occurred and therefore no evidence that the holiday occurred in a school holiday period. Counsel for the wife, being unable to identify from the evidence when she was alleged to have contravened the orders, submitted that she was unable to answer the charge. Having regard to the matters referred to by Counsel for the wife, I found that no prima facie case had been established.

SIXTEENTH ALLEGATION

1. Order 22(i) imposes an obligation on both parents to advise the other if a child suffers an injury or requires medical treatment.

2. The husband alleged that the wife failed to respond to text messages and emails sent to her. He also alleged that “the child”, unnamed, “handed over to father on medicine at time of changeover when medicine date was many days before. Mother was trying to give child old medication as father checked dates on medication he administers to the children”(sic).

3. The husband relied on text messages found at page 58 of his affidavit sworn 28 March 2014, containing 141 pages of annexures. Those messages did not establish facts which constituted a contravention.

4. The husband also relied on a text message at page 100 of the same affidavit. That message did not establish that the children had been to see a doctor on the occasion to which the husband refers in the text and did not establish facts which constituted a contravention.

5. Accordingly, I declined to charge the wife in relation to this allegation.

SEVENTEENTH AND EIGHTEENTH ALLEGATIONS

1. These allegations appear to form part of the same charge and will be dealt with together.

2. Order 24(a) to (e) sets out the regime to be followed if a parent wishes to travel with the children out of Australia.

3. The husband alleges that the wife failed to respond to text messages and emails sent to her and her solicitors in relation to his proposed travel with the children to New Zealand.

4. He was unable to provide evidence that he had complied with the provisions of Order 24(b) in that he had provided the wife with information about flights, accommodation, contact numbers and a confirmed itinerary. He conceded, in his oral argument, that he had not done so.

5. Accordingly, the husband was unable to establish that he had done those things that would require the wife to take any steps in accordance with Order 24.

6. I declined to charge the wife in relation to this allegation.

NINETEENTH ALLEGATION

1. Order 26 provides that each party shall do all acts and sign all documents necessary to maintain a current passport for the children.

2. The husband established that the children’s passports had expired. Accordingly, the wife was charged on this count and denied the charge.

3. At the appropriate time, the husband was cross-examined in relation to this allegation. It was the husband’s evidence that he had not done anything to renew the children’s passports except to obtain the forms and to advise the wife that he had them. He did not sign the forms. He did not obtain the photographs of the children and complete the requirements of endorsement of the photographs. He did not tender the money required to be paid.

4. The wife gave no evidence in relation to this charge. She did not assert that she had a reasonable excuse for failing to comply with the order.

5. Thus it was established, on the husband’s evidence, that neither party had done anything to comply with Order 26.

6. The contravention was proven.

7. The contravention falls within the category of “less serious contravention” and the action available to the Court is set out in section 70NEB.

8. In circumstances where each parent failed equally to comply with the order in relation to the children’s passports, I do not consider it appropriate to impose a penalty upon the wife. However, I am mindful of the fact that she has been found to have contravened an order and that, in the event of further contravention proceedings, she will, if those fresh charges are proven, be dealt with pursuant to the provisions applying to more serious contraventions.

TWENTIETH ALLEGATION

1. The husband conceded that there was no evidence in support of this allegation and accordingly I declined to charge the wife.

TWENTY FIRST ALLEGATION

1. The husband conceded that there was no evidence to support this allegation and accordingly I declined to charge the wife.

TWENTY SECOND ALLEGATION

1. By Order 29 the parties are restrained from chastising the children.

2. The husband asserts “The respondent without reasonable excuse failed to respond to text messages sent to the mother and emails and letters to her solicitors...”.

3. There is no allegation that the wife chastised the children in contravention of this order.

4. Accordingly I declined to charge the wife.

TWENTY THIRD ALLEGATION

1. Order 30 provides:

   That the parties are to forthwith establish a communication book which communication book is to include the parties’ communicating to the other a description of any bruises that the children have at the time of changeover and the cause of each bruise, what treatment was applied and whether the child was sent to their GP for treatment.

2. The husband alleges “The respondent without reasonable excuse failed to respond to text messages sent to the mother and emails and letters to her solicitor…”.

3. The application does not, on its face, allege a breach of order 30.

4. The husband was invited to indicate the evidence upon which he relied in relation to this allegation. He relied on a photograph of one of the children with a bruise on her chin. There was no evidence to establish when the child came into the husband’s care or where the child had been before she came into his care. There was no evidence to establish or even suggest that the wife must have been aware of the bruise so as to enliven her obligation to communicate with the husband about it.

5. In those circumstances I declined to charge the wife.

CONTRAVENTION APPLICATION FILED BY THE WIFE 1 APRIL 2014

1. The first allegation is that, on 20 September 2013, the husband retained M and refused to allow her to go with the wife after school at a time when the children were living with her pursuant to the orders of the court.

2. The evidence discloses that there was a disagreement between the parents at the school on the last day of term. The orders provided that the children live with the wife for the first half of the school holidays.

3. The husband asserted that he was entitled to the children for the weekend in accordance with the orders. The wife asserted, correctly, that weekend time did not extend over the school holiday period. M left with the husband and the twins left with the wife.

4. There is no evidence of the time when M was returned to the wife. I cannot know whether M was with the husband for a matter of minutes, hours or days. The wife’s affidavit is silent as to that matter.

5. In circumstances where I could not determine whether the order had been contravened in any material way, I declined to charge the husband.

6. The second and third allegations are that the husband attended at the children’s school at a time when the children were living with their mother and, without reasonable excuse, directed the children to get into his car, take off their school uniforms and return the uniforms to him.

7. The wife in her affidavit gives evidence that, on the first occasion, being 29 January 2014, the husband said to her words to the effect that he wanted the children’s school uniforms returned to him. The wife says “We walked over to his car. The children got in the car and changed out of their school uniforms. The parents conversed. The children changed out of their uniforms and left with the wife.”

1. It is not alleged that this chain of events happened other than with the wife’s agreement and co-operation.

2. The allegation does not disclose a contravention and I declined to charge the husband.

3. The third allegation is similar to the second, the events occurring on 3 February 2014. Again there was a conversation where the husband said he wanted the uniforms returned. The wife said that her car was closer and that she had the children’s swimming costumes in her car. The parents and the children walked to the wife’s car. The parents talked while the children changed and the uniforms were given to the husband.

4. It is not alleged that this chain of events happened other than with the wife’s agreement and co-operation.

5. The allegation does not disclose a contravention and I declined to charge the husband.

6. The fourth and fifth counts allege that the husband has refused to advise the wife of “details of the persons living in the same house as the father and the children, whilst the children are residing with the father.”

7. Counsel for the wife submitted that, as the parents had equal shared parental responsibility, then the provisions of section 65DAC are enlivened to require the husband to advise the wife of the identity of the persons living in his house.

8. Section 65DAC provides:

   65DAC(1)  This section applies if, under a parenting order:

   (a) 2 or more persons are to share parental responsibility for a child; and

   (b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   65DAC(2)  The order is taken to require the decision to be made jointly by those persons.

   Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

   65DAC(3)  The order is taken to require each of those persons:

   (a) to consult the other person in relation to the decision to be made about that issue; and

   (b) to make a genuine effort to come to a joint decision about that issue.

   65DAC(4)  To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

9. Counsel for the wife submitted that the husband’s decision to share his home with other persons who might come into contact with the children is a decision in relation to a major long term issue relating to the children and that the husband was obliged to consult the wife.

10. Major long term issues are defined in the interpretation section of the Act as follows:

    major long-term issues , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

    (a) the child's education (both current and future); and

    (b) the child's religious and cultural upbringing; and

    (c) the child's health; and

    (d) the child's name; and

    (e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

    To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

11. I therefore do not accept that the husband’s decision to share his home with others is a decision relating to a major long term issue. The allegation does not disclose a contravention and I declined to charge the husband.

12. Order 22(e) made 21 December 2012 requires that each party shall “advise the other of details of any other persons entrusted with the care of the child.” It is not asserted that a person living in the household of the husband has been entrusted with the care of the children. Accordingly reliance on the provisions of Order 22(e) does not assist the wife.

13. The wife’s application will be dismissed.

THE APPLICATION OF THE WIFE FILED 15 JANUARY 2014

1. In this application the wife firstly seeks an order that the time for filing of the application be extended. At the commencement of argument, Counsel for the wife pointed out that the application had been filed within time and therefore that application was not pursued.

2. The application seeks costs on an indemnity basis of an application made by the wife for an order that a Registrar of the Family Court (“a Registrar”) sign documents pursuant to section 106A of the Act for the implementation of orders made 21 December 2012, the husband having failed to sign the documents. The application is supported by an affidavit sworn by Clare Nelson a solicitor in the employ of the wife’s solicitor on 17 March 2014, an affidavit sworn by the wife on 13 December 2013 and an affidavit sworn by the wife on 8 January 2014.

3. The orders of 21 December 2012 provide that the husband and the wife forthwith sell properties D, N, Y and L.

4. Orders had been made earlier for the sale of D property on 10 May 2012. Those orders provided for the property to be offered for sale by auction if contracts had not been exchanged by 8 October 2012. In the event that the D property was passed in at auction, the parties were authorised to negotiate with the highest bidder. Mr DD was to be the conveyancing solicitor and the parties were to instruct the agent to sell D property at a figure which he recommended.

5. In relation to D property, an offer to purchase for $527,000 was received on 23 November 2013. The selling agent had recommended a reserve of $490,000.

6. On 25 November 2013 a letter was sent to the husband’s solicitor, Mr DD, enclosing the documents and requesting that the husband sign the contract, the transfer and the authority to discharge the mortgage. He did not do so.

7. The wife in her affidavit deposes to being informed by Mr DD that the husband had not attended his office to sign the documents.

8. The wife filed an application for a Registrar to sign the documents on 16 December 2013.

9. On 17 December 2013 a Registrar signed the transfer, contract for sale and authority to discharge the mortgage.

10. The husband, invited to indicate what evidence he relied upon in response to the Application for Costs, referred (with a few exceptions) to pages 2 to 72 of an affidavit sworn 30 April 2014 with 149 pages of annexures. Those pages consisted of letters and emails to the wife’s solicitors sent in March and April 2014. They can have no relevance to the application filed 16 December 2013.

11. The husband also referred to documents annexed to the same affidavit being letters sent to the wife’s solicitor on 23 and 28 October 2013; 4 April 2013; 15 March 2013; 22 February 2013; and 11 February 2013. In these letters, the husband makes complaints about the manner in which the D property has been marketed.

12. The husband did not refer to any letter or document in response to the request made in response to the letter dated 25 November 2013 requesting that he execute the relevant documents to enable the D property sale to proceed in accordance with the Orders of the Court.

13. In relation to the Y property, the regime for sale is contained in the orders made 21 December 2013. The listing price, in the absence of agreement, was to be as recommended by the agent; the sale price or reserve at auction, was to be set by a valuer; the parties were to do all things required to sell the property; and the property was to be offered for sale by auction within three months. If the property was not sold at the auction, it was to be offered again at auction on the same conditions, that is, at a price nominated by the valuer. The orders also required the husband to provide the wife with keys.

14. The husband did not provide keys. Letters were sent to him on 24 April 2013 and 18 October 2013. On 20 December 2013 the wife’s solicitors wrote to the husband asking him to sign authorities; to the letting agent to provide keys; and to a locksmith. No response to those letters is in evidence.

15. The husband did not refer to any documents other than those referred to in paragraphs 112 and 113. While those letters indicate that the husband was unhappy with the marketing of the Y property, they do not give any indication of his willingness or proposals to sell the property in accordance with the Order of the Court.

16. On 9 January 2014 the wife filed an application asking a Registrar to sign an agency agreement in relation to the Y property, an authority to the letting agent and an authority to the locksmith.

17. A Registrar signed the documents on 15 January 2014.

18. On 19 February 2014, on the application of the wife, a Registrar signed an authority in relation to the reserve price at the auction of the Y property.

19. The Y property was sold by auction on 22 February 2014.

20. On 28 February 2014, the solicitors for the wife wrote to the husband asking him to attend at their office and sign the transfer and advising that, in default, an application would be filed for a Registrar to sign. The husband did not sign the transfer.

21. On 18 March 2014, the wife filed an application for a Registrar to sign the transfer.

22. The Court records indicate that on 3 April 2014 a Registrar executed a transfer of the property at Y.

23. Counsel for the wife relies on section 117(2A)(d) of the Act. I accept the submission that the wife was required to file three applications only because of the failure of the husband to comply with the Orders made 21 December 2012.

24. In those circumstances, the husband should pay the wife’s costs of those applications.

25. The wife asks that those costs be paid on an indemnity basis.

26. The fact that indemnity costs should only be awarded if there is some special or unusual feature was confirmed by the Full Court in Prantage & Prantage [2013] FamCAFC 105. I consider the fact that the wife was required to make three separate applications for a Registrar to sign documents in circumstances where the husband failed to comply with obligations imposed upon him by orders of the court to be sufficiently unusual, or special, as to justify an order for indemnity costs.

THE WIFE’S RESPONSE FILED 24 MARCH 2014

1. The wife pursued the applications in paragraphs 3 and 7 of the Response.

2. In paragraph 3, the wife sought an order that the husband provide, to her and to the selling agent, keys for the properties at N and L.

3. The orders for the sale of those properties are in identical terms to the orders for the sale of the Y property to which earlier reference has been made.

4. The properties remain unsold.

5. The husband objected to the provision of keys on the basis that the wife would disturb the rights of the tenant of the N property and his occupation of the L property.

6. There was no evidence from the husband of any intention or proposal to sell the properties in accordance with the orders of 21 December 2012.

7. Having regard to the history of the husband’s lack of compliance with the orders for the sale of D property and Y property, and the fact that orders for the sale of N property and L property were made on 21 December 2012 and have not yet been complied with, I considered it appropriate that the wife have access to those properties on the basis that she use that access only for the purpose of the sale of the properties and on 10 June 2014 I made those orders.

8. The wife, in paragraph 7, seeks an order that $30,000 from the husband’s share of the proceeds of sale of the first to settle of Y, N or L properties be held in a controlled money account as security for the wife’s costs of enforcement of the orders of 21 December 2012.   

9. The wife relies on the husband’s history of non-compliance with the orders of 21 December 2012, the fact that she has filed three separate applications to date for a Registrar to sign documents and the fact that, on the evidence to date, there is nothing which would convince the Court that the husband will take any positive or co-operative step to effect the sales of those properties.

10. Counsel for the wife pointed to the statements of the husband, made in the course of his oral argument to the effect that he would be filing further applications.

11. It is more likely than not that the wife will be obliged to file further applications for a Registrar to sign documents in order to effect and complete the sale of the properties, or at least some of them. In those circumstances she would be entitled to seek costs of those applications.

12. The husband told the court in the course of his oral argument that the whole of the amount of $425,000 which he received from the sale of the Y property has been used to pay unspecified debts. 

13. The circumstances of the husband’s failure to co-operate with the wife in relation to the implementation of the orders of 21 December 2012 give rise to the likelihood that the wife will have difficulty enforcing any order for costs which is made in her favour if the husband’s share of sale proceeds is distributed to him. It is appropriate that the wife’s costs be secured as she seeks.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 July 2014.

Associate: 

Date:  2 July 2014