Yang and Gian (No. 2)

[2013] FamCA 251

FAMILY COURT OF AUSTRALIA

YANG & GIAN (NO. 2) [2013] FamCA 251

FAMILY LAW – WARRANT FOR POSSESSION – Wife’s application for Warrant for Possession – Husband did to vacate the property notwithstanding having entered into consent orders to move out of the former matrimonial home – Orders made for a Warrant.

Family Law Act 1975 (Cth.)
Family Law rules 2004 r 20.54

APPLICANT: Ms Yang

RESPONDENT: Mr Gian

FILE NUMBER: SYC 4390 of 2012

DATE DELIVERED: 8 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 8 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Yau & Wang Lawyers

THE RESPONDENT IN PERSON: Mr Gian

Orders

1. That a warrant for possession issue but not before 16 April 2013 in the following form:

   To the Marshall of the Court, to all officers of the Federal Police and to all officers of the Police Force of the State of New South Wales:

   Whereby by an order of this Court made at Sydney on 30 January 2013 it was ordered by the Court that Mr Gian should, on or before 4.00 pm on Wednesday, 20 February 2013, vacate the matrimonial home, being the property situate at and known as … B Street, Suburb C, in the State of New South Wales, and whereas the Court is satisfied that the said Mr Gian  has failed to comply with such order, you are hereby directed for the purpose of giving effect to the said order at such time with such assistance as you may require, and if necessary by force, to enter the land described being … B Street, Suburb C, in the State of New South Wales, and cause the wife, Ms Yang to have vacant possession of it, and to cause the husband, Mr Gian, to vacate the said land.

2. Leave is granted to the applicant wife to apply on two (2) days notice in respect to orders of the balance of the Application in a Case filed 5 March 2013 and in relation to the enforcement of Order 1 above.

3. That the husband pay the wife’s costs of the her Application in a Case filed 5 March 2013 on an indemnity basis.  Those costs to be paid as agreed or as assessed.

4. The husband’s Application in a Case filed 2 April 2013 is adjourned to the duty list on 20 May 2013 at 9.30 am.

5. I direct that each party file and serve a Financial Statement on or before 10 May 2013.

6. I direct that the parties file and serve any affidavit upon which they intend to rely on or before 10 May 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yang & Gian (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: SYC 4390 of 2012

Ms Yang

Applicant

And

Mr Gian

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. By an Application in a Case filed on 5 March 2013, the applicant wife seeks a number of orders in relation to what she says is a contravention of consent orders made on 3 January 2013.  The only three orders that were pressed before me today were orders 7 and 8 of her Application in a Case.  Order 6 as sought by the wife seeks an order for possession of the former matrimonial home in accordance with Rule 20.54.  I formulated a charge and took Mr Gian’s response to be a denial of that charge.  In support of that application, the wife read her affidavits of 21 February 2013 and 5 April 2013.

3. Order 1 made on 30 January 2013 provided:

   On or before 4 pm on Wednesday, 20 February 2013, the husband vacate the matrimonial home, being the property situated and known as [B Street, Suburb C], New South Wales.

4. It is apparent from the evidence of the wife that the husband has not complied with that order and concedes he is still in occupation of that property.  He also concedes that he was aware of the orders.

5. On 4 March 2013, in a duty list I had two applications before me.  There was an application for contempt for the husband’s breach of that order.  I dismissed that application because I am not satisfied that the husband was acting in flagrant disregard of the court’s authority.  There was also an application by the husband on that date to set aside the consent orders, which I also dismissed.

6. The position therefore remains that the husband has not vacated the premises of the former matrimonial home.  The evidence of the wife is that she has terminated the tenancy where she and her children were residing in early March 2013 and needs somewhere for them to stay.

7. Mr Gian’s response to this application is to file his own application in a case, seeking orders that the property be sold by auction urgently, that the mortgage’s encumbrance of the property be paid and that a number of personal debts of his be paid and the balance paid into a trust account.  Given this application was only served a few days ago, the wife is not a position to deal with that application.

8. The basis of that application, is that the husband has little source of income and his debts are increasing and cannot be paid, is to be tested.  However, that application of itself does not answer the present question, which is whether an order should be made for contravention of the orders made in January 2013 for sole occupation of the matrimonial home.  I propose to adjourn that application to 20 May 2013, direct the parties to file a financial statement and for the wife to serve affidavit evidence in response to it.  In support of that application, the respondent husband has sworn an affidavit of 26 March 2013.

9. In his affidavit he says that he has attempted to look for rental accommodation but his application was refused, thus his job was contractual only and he was not able to prove he had a consistent income stream.  The husband annexed to that affidavit a document from an entity known as D Investment that says:

   We are here to confirm that [Mr Gian] attended our office to look for a rental property.  Due to the nature of his job, which is on a contractual basis, he could not provide documents to prove that he has a stable stream of income.  Unfortunately, he did not meet the requirement to rent a property through our office by proving he was able to afford rent on a weekly basis.

   That letter is dated 18 February 2013. I assume, but do not know, that they are some sort of real estate agent.  There was no evidence of any other attempts to find rental accommodation.

10. Annexed to that affidavit are a number of outstanding bills and letters which would indicate that, according to them, Mr Gian is having difficulty paying his bills.  He says in his affidavit he also has to pay child support for children from his previous marriage and he can’t afford to pay rent.  He also annexes to that affidavit a letter from Dr H, a respiratory and sleep medicine staff specialist.  It says Mr Gian has obstructive sleep apnoea, has excellent improvement on a CPAP machine, which he should continue to use.  He says that if he is forced to move out from the house and possibly sleep in a car, he may not be able to use that machine.

11. He annexes to his affidavit a report from Dr G, who describes himself as a clinical psychologist, dated 9 March 2013, which says that Mr Gian is suffering from adjustment disorder with severe depression due to the difficulties arising out of this court case.  He is worried about having to sleep in a trailer without his CPAP machine and his bills and problems finding other accommodation.  He annexes to his affidavit blood test results that show that he suffers from hepatitis B and he said from the bar table none of his friends will let him stay there because they are fearful of infection.

12. The evidence does not persuade me that there is a reasonable excuse for failing to comply with the order and it is appropriate, in my view, that possession of the property be granted by issuing a warrant under Rule 20.54 of the Family Court rules.  Rule 20.54(1) requires that there be at least seven days’ notice of the order to be enforced before a warrant is to be issued.  Accordingly, I will make an order that a warrant issue not before 16 April.  That will be seven clear days from today.

13. The wife seeks an order that the husband pay the costs of this application on an indemnity basis.  This is an attempt to enforce orders which were entered into by consent.  It is appropriate that on an application of this nature that she receive her costs and they be on an indemnity basis, that she ought not be out of pocket by attempting to and seeking to enforce consent orders.  The husband says that he doesn’t presently have the funds available to pay those costs and there may be some force in that.  That is, however, not a reason for not, in all of the circumstances, making a costs order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 8 April 2013.

Associate:

Date:  17 April 2013