Aldridge and Mazzotti

[2007] FamCA 63

FAMILY COURT OF AUSTRALIA

ALDRIDGE & MAZZOTTI [2007] FamCA 63

FAMILY LAW - Costs

Family Law Act 1975

APPLICANT: Ms Aldridge

RESPONDENT: Mr Mazzotti

FILE NUMBER: CAF 262 of 2005

DATE DELIVERED: 18 January 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 18 January 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Monteleone

COUNSEL FOR THE RESPONDENT: Ms Tonkin

SOLICITOR FOR THE RESPONDENT: Mr Howard

Orders

1. The application in a case filed by the wife on 8 January 2007 is dismissed.

2. The enforcement warrant filed on 8 January 2007 is stayed until further order of this Court or until completion of the primary proceedings before this Court currently scheduled to occur on 26 February 2007.

3. I reserve liberty on the part of either party to apply about the terms of, or the provision of funds to assist in the enforcement of the orders that I made on 28 November 2006 about the accounting or expert evidence necessary in relation to the valuation of the cleaning business.

4. There be no order for costs in relation to the application in a case filed on 8 January 2007 about division of funds.

5. There be no order for costs in relation to the informal application for stay of the enforcement warrant.

6. There be no order for costs in relation to the enforcement warrant.

FAMILY COURT OF AUSTRALIA AT CANBERRA  

FILE NUMBER: CAF262 of 2005

MS ALDRIDGE

Applicant

And

MR MAZZOTTI

Respondent

REASONS FOR JUDGMENT

1. In this matter the proceedings before the Court are formally, the application in a case filed on 8 January 2007 by Mr Monteleone on behalf of the applicant wife seeking certain orders on an interlocutory basis about provision of funds to take account of potential costs that might be incurred by his client if certain consequences flowed from orders that I made on 28 November 2006.

2. Without repeating in any further detail, what I have discussed in the course of counsel's submissions to me, it seems to me that the application was in the circumstances, at least in part, premature and it ought properly to be dismissed.  I will not repeat the reasons although I will incorporate them into my judgment if it should become necessary for the purposes of appeal, the discussions I have had with counsel and the views I have expressed previously.

3. The application, although premature, was designed to ensure that the proceedings that have been rescheduled to recommence on 26, and if necessary, 27 February 2007 would continue.  For reasons I have previously indicated, in my opinion it was pre‑emptive and premature.  Nevertheless, it was not entirely motivated by reasons, apparently, other than a need to get on with the matter.

4. In my opinion there is no justification for an order for costs in relation to that matter.

5. Informally I have before me the application by the wife for the stay of a warrant of enforcement that was issued by Mr Howard on behalf of his client.  There is no doubt that his client is entitled to pursue the consequences of orders that have been made in these proceedings, particularly one might say given that those that live by the sword might also reasonably die by the sword:  if they seek to enforce orders in a precise and deliberate way, then the risk they run is that someone else will do precisely the same thing to them, which in large measure is what has happened in this case.  Nevertheless, the matter is scheduled to be finalised as far as hearings are concerned a little over five weeks away, and to pursue this matter essentially to dispose of all of the chattels other than those essential for the purposes of living, of the wife in circumstances to say the least there has been a perceivable delay in allowing all the relevant information to come before the court on the part of the husband is, in my opinion, ill‑considered and in my opinion I should make the order staying the enforcement warrant pending the hearing of the matter.

6. I will if requested, and if it should become necessary as a result of an order I foreshadow that I will make in relation to further costs about the valuation of the business, revisit this question rather than making an order that the husband provide those funds prior to the hearing in a different sense.  However, for the time being, at least until the hearing or until further order of this court, the enforcement warrant will be stayed.

7. I do not believe that it is appropriate that either the wife should receive any costs in relation to that informal application or that the husband should have any costs in relation to his enforcement application.  I propose to make those orders accordingly.

8. I will reserve liberty to either party to make an application if it should because necessary after Mr Y and Mr L have conferred, to enable a determination of what if any additional funds should be provided to enable the matter to proceed.  At that point, taking into account what the current state of the evidence will then be, I can make a determination about whether the matter can proceed on 26 February 2007 or if it cannot when the matter can next proceed and the consequences that will flow as a result of that.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date:  15 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ALDRIDGE & MAZZOTTI