FEDERAL MAGISTRATES COURT OF AUSTRALIA
PAINTER-WARD & WARD	[2012] FMCAfam 570	

FAMILY LAW – Property – applications for consequential orders arising out of an earlier order for sale – appeal pending – costs order made.	

Family Law Act 1975 (Cth), s.177
Federal Magistrates Court Rules 2001 (Cth), sch.1	

Applicant:	MS PAINTER-WARD	

Respondent:	MR WARD	

File Number:	MLC 2470 of 2011	

Judgment of:	Hartnett FM	

Hearing date:	8 June 2012	

Delivered at:	Melbourne	

Delivered on:	8 June 2012	

REPRESENTATION
Counsel for the Applicant:	Mr Potter	

Solicitors for the Applicant:	Lewis Holdway Lawyers	

The Respondent:	In person 	

On the Application OF THE WIFE filed 7 June 2012 THE COURT ORDERS THAT:
(1)	Order 4 of the Orders made 8 May 2012 is discharged and, subsequent to the discharge of this earlier order any funds the wife may obtain from her Superannuation Fund are to not exceed $7,000 and to be applied to placing the property at Property P [P] in the State of Queensland (“the property”) in a marketable condition for sale. Such expenditure by the wife, together with interest at 6% per annum on the funds, be refunded to the wife out of the husband’s share of the net proceeds of this property as provided for in the Orders made 30 March 2012.
On the Application OF THE WIFE FILED 31 May 2012 THE COURT ORDERS THAT:
(2)	Order 3(a) of the Orders made 30 March 2012 is discharged.
(3)	The husband is to vacate the property situate at Property P [P] in the State of Queensland within 7 days hereof.
(4)	Upon the husband vacating from the [P] property he provide his keys to the appointed Real Estate Agent, Mr D of [ company omitted].
(5)	In the event that the husband fails to remove himself and his possessions from the [P] property by 15 June 2012, a warrant of possession be issued in respect of the property situate at and known as Property P [P] in the State of Queensland being the whole of the land more particularly described in Certificate of Title with title reference [omitted].
(6)	The Sheriff be at liberty to do all things necessary to obtain vacant possession of the property including, but not limited to, changing all locks and removing and disposing of any assets or possessions of the husband, or any other person, found on the property.
(7)	The warrant of possession shall be executed on 19 June 2012 unless the wife advises the Court in writing by 18 June 2012 that vacant possession of the property has been delivered. 
(8)	For the purpose of order 7 herein the wife shall provide the advice to the Associate to Federal Magistrate Hartnett. 
(9)	The costs of the wife in respect of the applications of the wife filed 31 May 2012 and 7 June 2012 are fixed in the sum of $6,086 and to be paid by the husband to the wife out of his entitlement and prior to receipt by him of any funds pursuant to order 2(c)(i) of the Orders made 30 March 2012.
(10)	Otherwise the applications of 31 May 2012 and 7 June 2012 are dismissed.
THE COURT ORDERS THAT:
(11)	The application for costs filed 15 May 2012 is adjourned for hearing on 26 October 2012 at 10am with priority.
(12)	The wife file and serve within 21 days hereof a breakdown of the calculation of costs in respect of discrete periods of time being before and after 8 September 2011.
(13)	The husband file and serve any affidavit in response at least 14 days before trial.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT melbourne	
MLC 2470 of 2011
MS PAINTER-WARD	
Applicant

And

MR WARD	
Respondent

REASONS FOR JUDGMENT
1.	Before the Court this day are a number of applications, and these reasons shall deal firstly with those applications in a case filed on 31 May 2012 and 7 June 2012.  Both applications were made by the wife in the proceedings.  These reasons should be read in conjunction with the reasons which support the making of final orders between the parties on 30 March 2012.  The making of those orders is currently subject to appeal by the husband.
2.	The orders of 30 March 2012 provided in respect of the property in which the husband resides, that being the property situate at and known as Property P [P] in the State of Queensland (‘the [P] property’), that that property be sold.  The orders of 30 March 2012 also provided that the property in which the wife resided, being that situate at and known as Property C in the State of Victoria, also be sold.
3.	In respect of the sale of the [P] property in which the husband resides in Queensland, pursuant to order 3(a) of the final orders made 
30 March 2012, the husband was granted sole occupation of that property, the orders stating “the husband be entitled to solely occupy the [P] property”, and I note such occupancy was granted pending the sale of the said property.
4.	On 8 May 2012, the parties came back to the Court on an application made by the husband for a stay of the orders made 30 March 2012 and on that day further orders were made, the first being an order by consent and providing for the time for auction of the [P] property to be extended to a day on or before 9 July 2012.  The orders also provided, in order number 2 (amended pursuant to r.16.05(2)(e) of the Federal Magistrates Rules 2001 and now order number 5), that the husband comply with order 3(e) of the orders made 30 March 2012 by 29 May 2012, and if he failed to do so, then there was liberty to the wife to apply at short notice for the husband to vacate the property.
5.	On 8 May 2012, the wife had before the Court an application for the husband to vacate the property.  She did not press that application when the husband indicated that he would render the property in a marketable condition, albeit he required further time to do so.  On the evidence before the Court that day and with the wife’s consent, the Court granted the husband such further time being until 29 May 2012. The husband assured the Court the property would be in a marketable and presentable condition. The husband conceded on 8 May 2012 that the [P] property was not in a proper marketable state and that he had not complied with order 3(e) of the earlier orders of 30 March 2012.  
6.	The parties were in financial difficulty on 30 March 2012.  That difficulty had escalated by 8 May 2012.  It has now significantly escalated in that the National Australia Bank have indicated to the parties that if they have not satisfied the defaults with respect to their loans secured over the real properties in Queensland and Victoria, that a writ will issue in the Supreme Court for monies to be paid and that will be done on or about 15 July 2012. This will add to the parties increasing levels of debt. 
7.	In the orders made 8 May 2012, there was an order made by consent that the wife would not until the conclusion of the husband’s appeal further access any superannuation entitlements that she had with [P] Superannuation Fund.  The wife this day, in an application in a case filed 7 June 2012, seeks that order 4 of the orders made 8 May 2012 containing that restraint be set aside.  She sought that application be heard on an urgent basis.  That application and affidavit in support by the wife, which was sworn on 7 June 2012, were served upon the husband at a time earlier than the husband stated in his affidavit and claimed in opening submissions made this day. There is tendered in evidence a document “exhibit W1”, which satisfies the Court that the husband did, in fact, receive those documents at a time earlier than that which he claimed, but nothing significant turns on this.  The wife needs, on her evidence, to access her superannuation funds further in order to make the [P] property marketable.
8.	The wife in support of the 7 June 2012 application and her application in a case filed 31 May 2012 (which seeks that the husband vacate the [P] property immediately and that in the event he fails to do so by the removal of himself and his possessions within seven days of the date of this order, he essentially be evicted from the property) has filed affidavits sworn by herself on 30 May 2012 and 7 June 2012. She also relies upon affidavits sworn by Ms Fielding, the solicitor who has the conduct of the proceedings on behalf of the wife (sworn 31 May 2012), and by Mr D (sworn 31 May 2012), who is the real estate agent appointed by the wife to sell the [P] property.
9.	The husband in response, filed a notice to admit facts dated 7 June 2012 which amongst other documents annexes the default notice, an affidavit in response to the affidavit of the wife which is sworn by him on 8 June 2012 and a further affidavit which is sworn by him recently – the cover sheet says 4 June 2012, the filing date was 5 June 2012, and by mistake, he says, the affirmation date is 18 September 2011 – and all of the documents filed by Mr Ward in these proceedings, as he puts it.
10.	No ongoing payments are made by the parties or on their behalf to the National Australia Bank.  The bank has become increasingly concerned about the non-payment of monies owing to it by the parties. It has indicated to the parties, that it will incur legal costs for which the parties will be held responsible and will seek a sale of the [P] property by the bank.
11.	The wife is of the view that the parties themselves can achieve a greater selling price than the bank and that certainly the accumulation of any legal costs owing by the parties to the National Australia Bank should be avoided.  The husband’s response is that the property is still not in a marketable condition.  We are now 31 days beyond 8 May 2012, and the husband submits to the Court that the property in which he resides in Queensland is in “the process of being prepared for presentation”.  He has carried out some minor works on the [P] property, but the property, on his own evidence, on the wife’s evidence, and on the evidence in particular of the real estate agent, Mr D, is not ready to be marketed.
12.	Mr D said in his affidavit sworn 31 May 2012, paragraph 12, “From my observation of the property, the property was not in a marketable condition.”  This was when he inspected it on 28 May 2012.  Mr D had inspected the property earlier and on 14 May 2012 when he determined also that the property was not in a marketable condition.  He has noted in his affidavit the matters which the husband has attended to, such as, in paragraph 9, the removal of a small boat trailer and part of a vehicle from the back yard.  He has noted other minor improvements carried out by the husband but as the parties agreed on 8 May 2012, and agree here today on 8 June 2012 (supported by their real estate agent), the property is not in a marketable condition.
13.	The Court is hearing these applications now closer to the date on which the National Australia Bank will take legal action and force the sale of the property and a departure from the property of the husband.  This situation can no longer go on.  The husband has received ample time to comply with the earlier orders of the Court and to co-operate with the wife and with the selling agent Mr D, to achieve an orderly sale of the property and maximise the return to the parties.
14.	The husband has not co-operated to date and seems intent on not doing so.  He provides no further timeframe in which he will attend to what it is that is required, and in any event, he was given that opportunity on 8 May 2012.  Accordingly, and noting the concessions made by the husband himself in the proceedings, I will make the orders sought by the wife in respect of both applications.
15.	An application for costs is made by the wife.  The Court is mindful that any application for costs involves a discretionary determination by the Court.  The Court is also mindful that s.117 of the Family Law Act 1975 (Cth) (‘the Act’) governs the question of costs and in particular, the Court is mandated to look to those matters set out under s.117(2A) of the Act.
16.	Counsel for the wife refers the Court in particular to subparagraphs (c), (d) and (e) of section 117(2A) of the Act.  In its discretion, the Court determines that a costs order should follow the event in these applications.  The application of 31 May 2012 relates directly to the husband’s non-compliance with earlier orders of the Court, being orders made 30 March 2012 and 8 May 2012. Had the husband complied with the earlier orders of the Court – and I note he was given a further opportunity for compliance in the orders of 8 May 2012 – this application would not be before the Court.  Nor would the subsequent application filed by the wife, in that the wife needs funds to put the property in a marketable condition where the husband has failed to do so.
17.	The Court makes a further order that the costs of the wife, in respect of these two applications, is fixed in the sum of $6,086 and to be paid by the husband to the wife, out of his entitlement and prior to receipt by him of any funds pursuant to order 2(c)(i) of the orders made 30 March 2012.
18.	The calculation of the quantum of costs is made not pursuant to any costs agreement the wife may have with her solicitors.  Nor is there an indemnity costs amount. The costs are calculated according to Sch.1 of the Federal Magistrates Court Rules 2001 (Cth) and are just in all the circumstances. 
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Harnett FM

Date:  15 June 2012