Atreus and Atreus

[2018] FamCA 672

FAMILY COURT OF AUSTRALIA

ATREUS & ATREUS [2018] FamCA 672

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment – Where the husband seeks a second adjournment of the wife’s application to enforce final property orders – Application dismissed.

Family Law Act 1975 (Cth) s 79A

APPLICANT: Ms Atreus

RESPONDENT: Mr Atreus

FILE NUMBER: MLC 261 of 2017

DATE DELIVERED: 31 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 31 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mainwaring

SOLICITOR FOR THE APPLICANT: Ferrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Ms Jeans

SOLICITOR FOR THE RESPONDENT: Dandanis & Associates

Orders

1. That the husband’s Application in a Case filed 25 July 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atreus & Atreus has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 261 of 2017

Ms Atreus

Applicant

And

Mr Atreus

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Atreus comes before the Court today upon an Application in a Case filed on behalf of the wife on 26 April 2018.  That application seeks to enforce final property orders that were made by consent on 13 February 2017.  The application was originally listed before me on 6 June 2018. 

2. The husband’s counsel today makes application for an adjournment of the hearing of the enforcement application on the basis that she submits that her client seeks to file, at some time in the future, an application pursuant to s79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside the final property orders.

Background and Discussion

1. In order to understand the adjournment application, one needs to consider the history of these proceedings.  The parties originally filed their application for consent orders on 12 January 2017.  As I have already noted, final consent orders were made dealing with all property matters on 13 February 2017.  Those orders required each of the parties to undertake specific actions. 

2. The orders, which it is said on behalf of the wife, have not been complied with are, firstly, paragraph 2.2 of the orders which requires the husband to meet obligations in relation to what is described as their daughter’s surgery loan. 

3. The second aspect of those orders which is outstanding is paragraph 6, which requires the husband to pay to the wife the sum of $200,000 within 12 months of the date of the orders.  That payment was due to be made in February 2018.  That sum has not been paid.

4. As I have noted, the wife’s Application in a Case to enforce those orders was originally filed on 26 April 2018.  The affidavit of service of Mr B, which is an affidavit filed 5 June 2018, confirms that the husband was served with the wife’s application by hand on 1 May 2018. 

5. When the matter came before the Court on 6 June 2018, the husband had already had the application and had notice of what orders the wife was seeking for a period of approximately four weeks.  On 6 June 2018, the husband represented himself.  He sought an adjournment of the application to enable him to obtain legal advice.  I made orders that day adjourning the proceedings to this list.  I also made orders requiring the husband to file and serve a Response to an Application in a Case and any affidavit upon which he sought to rely and a financial statement, those documents to be filed by 20 June 2018.  The husband did not comply with those orders. 

6. The Court file discloses that the solicitors acting for the husband filed a Notice of Address for Service on 18 June 2018.  They have been the solicitors on the record now for a period of almost six weeks.  The affidavit filed by the husband indicates that only following the adjournment of the proceedings, he realised that the matter had been adjourned to a date when he was travelling overseas.  He therefore caused his solicitors to write a letter to the wife’s solicitor seeking a further adjournment of the proceedings.  That request was sent to the wife’s lawyers by letter dated 15 June 2018. 

7. The wife did not consent to an adjournment.  As a consequence, the husband was on notice that the wife would be seeking to proceed with her application today.  He had choices to make.  He could comply with the orders made to file his material and to have lawyers represent him to deal with these matters, or he could do nothing.  Until last week, the husband adopted the latter course, that is, he did nothing.  Material was filed on his behalf.  As I have already noted, there was a Response to an Application in a Case filed 23 July 2018.  That application sought either the dismissal of the wife’s application to enforce or, alternatively, an adjournment.  There was then an Application in a Case filed two days later in which, again, the husband sought an adjournment of the proceedings. 

8. The challenge for the Court is always to balance the interests of all parties.  The wife consented to orders more than a year ago which gave her certain rights.  She was entitled to a payment five months ago.  That payment has not been made.  This is confirmed in the husband’s affidavit material.  She now seeks to enforce her rights under the orders. 

9. The husband says through his counsel that he has a claim pursuant to s 79A of the Act. It is difficult to discern from the affidavit material filed to date what grounds he relies upon pursuant to s79A of the Act.

10. He indicates that there may have been an overvaluation of one of the parties’ interests.  He complains that he did not have legal advice at the time he consented to the orders.  The reality is those orders were made a year and a half ago. 

11. The husband has been on notice about the wife’s intention to enforce her rights under those orders since 26 April 2018.  He has had more than three months’ notice of the wife’s application.  He had four weeks to consider his position prior to the first hearing.  He did nothing.  He came to Court, sought an adjournment and was granted that indulgence to enable him to get his house in order, to obtain legal advice and to put material before the Court in relation to his claims. 

12. He did not comply with orders requiring him to file material and the material that was filed last week does little to advance his claims with respect to the property orders.  He has travelled to Europe, notwithstanding his knowledge of the application before the Court this day. 

Conclusion

1. I am not persuaded, having regards to the background to the proceedings that it is appropriate that there be a further adjournment of the wife’s application.  It is not only the interests of the husband that I need to consider.  The wife is entitled to press her claim with respect to her entitlements under the original property orders.  Therefore, in my view, the husband’s application for an adjournment should be dismissed, and the wife should be entitled to proceed with her application listed before the Court this day. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 31 July 2018.

Associate: 

Date:  31 July 2018