Parties Dispute Dismissal of Warrant for Possession and Consent Orders

Valasco & Pellam [2021] FedCFamC1A 70 (19 November 2021)

The primary judge dismissed applications seeking to set aside a warrant for possession and consent orders.  The appellant opposed the orders of the primary judge alleging collusion and forgery against the respondents.  The Court, in resolving this dispute, assessed whether or not adequate notice was given to the appellant of the issue of a warrant for possession. 

Facts:

The parties have been engaged in parenting and property proceedings in the Federal Circuit Court of Australia since 2018.  On the 28 January 2020, a judge of the Federal Circuit Court made a suite of property settlement orders by consent (“the consent orders”) so that the respondent was to receive 65 per cent of the net proceeds of sale of the Suburb C property and the appellant 35 per cent. 

The parties’ share of the proceeds was to be paid to their lawyers in the first instance and not directly to them.  Otherwise each party was to retain the assets in their possession.  The orders provided for the wife’s credit card debts to be paid from the proceeds of sale before the division of the proceeds of sale. 

On 20 October 2020, the respondent sought an order requiring the appellant to leave and not to re-enter the Suburb C property so it could be sold. 

On 11 December 2020 the respondent sought the issue of a warrant for possession of the Suburb C property and the forcible removal of the appellant from it. 

On 23 December 2020, a writ of possession was issued to remove the appellant from a property subject of the consent orders so as to enable its sale pursuant to the consent orders. 

On 28 January 2021, he filed an application seeking to set aside the issue of the writ. 

By a further Application in a Case filed on 29 January 2021 the appellant sought to set aside the consent orders themselves.  He was unsuccessful and both applications were dismissed on 14 May 2021.  Appeal No. EAA 50 of 2021 is against that dismissal.  On 2 June 2021, the appellant filed an Application in a Case seeking a stay of the orders made on 28 January 2020 pending determination of Appeal No. EAA 50 of 2021. 

The respondent did not oppose an order staying Order 1(e) of those orders (which provided for the distribution of the net proceeds of the sale of a property at Suburb C (“the Suburb C property”) to the lawyers for the respondent as to 65 per cent and the previous lawyers for the appellant as to 35 per cent).  That order was an order that the net proceeds of sale be held in the trust account of the respondent’s solicitor pending determination of the appeal.  The application was otherwise dismissed.  Appeal No. EAA 75 of 2021 is against those orders.

On 28 January 2021 the appellant filed an Application in a Case seeking that the orders made on 23 December 2020 be reviewed and that a lawyer be appointed to represent the appellant.  On 29 January 2021 the appellant filed the application seeking to set aside the consent orders. 

Issue:

Whether or not adequate notice was given to the appellant of the issue of a warrant for possession. 

Applicable law:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(b) - provides that a refusal to set aside consent orders is an interlocutory order and leave to appeal is required. 

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3 - pursuant to which and in accordance with the direction of the registrar, the respondent produced a costs schedule claiming $6,880.30 which was, at the time of its preparation.

Analysis:

The appellant asserts that the transcript does not reflect what actually occurred.  He submits that the primary judge erred by not listening to the audio recording itself and instead relying on the transcript.  However, the appellant did not explain how the transcript, which is prepared by an independent organisation from its own recording, could be altered in such a significant way.  It was also contended that Mr B, the counsel for the appellant, had a conflict of interest because the appellant’s share of the sale proceeds were to be paid to him, yet Mr B gave evidence on behalf of the respondent.  

The consent orders do not permit Mr B to retain anything over and above whatever he might be entitled to retain.  They merely provide that the orders would be complied with by payment to the parties’ lawyers rather than directly to the parties.  The appellant agreed to this course when he signed the consent orders.  The fact that Mr B was called by the respondent to give evidence does not establish collusion of any kind.

An employee of the respondent’s solicitor, Ms R, deposed in her affidavit filed on 17 December 2020, that on 11 December 2020 she sent the appellant a copy of the Application in a Case and the supporting affidavits filed on 9 December 2020 by registered post and to four email addresses used by the appellant.  The appellant claims that he did not understand the later email.  That carries an implicit admission, contrary to his evidence, that he did receive the documents.  The appellant conceded that he received the email of 11 December 2020.  He was therefore properly served.

Conclusion:

The Court dismissed the Application in an Appeal filed on 26 August 2021.  The application for leave to appeal the orders made by the primary judge on 14 May 2021 and the application for leave to appeal the orders made by the primary judge on 18 June 2021 are likewise dismissed.  The appellant is to pay the respondent’s costs fixed in the sum of $6,880.30.