Baghti and Banis & Ors

[2015] FamCA 302

FAMILY COURT OF AUSTRALIA

BAGHTI & BANIS AND ORS [2015] FamCA 302

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the applicant sought an adjournment of the proceedings – Where the applicant argued that the issue before the Court gave rise to a requirement pursuant to s 78B of the Judiciary Act 1903 (Cth) that notice must be given to the Attorneys-General of the Commonwealth and of the States – Where the Court was not persuaded that the proceedings relate to a matter arising under the Constitution or involving its interpretation – Consideration of case management principles pursuant to Aon Risk Services  – Where the trial Judge found justice required exercise of the Court’s discretion to dismiss the adjournment application.

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to intervene in enforcement proceedings – Where the Court has made orders pursuant to s 79 of the Act concluding substantive property proceedings – Where the applicant alleges that she and the husband entered into a deed which was evidence of a liability the husband had to her – Where the alleged deed was not brought to the trial judge’s attention in the substantive proceedings – Where it was found that the applicant cannot now properly  intervene in these proceedings.

Family Law Act 1975 (Cth)
Family Law Rules (Cth) – Rule 1.04; Chapter 11
Judiciary Act 1903 (Cth) – s 78B

Abbott and Abbott (1995) FLC 92-582
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Vella & Vella (10 August, 1992, unreported)

APPLICANT: Ms M Baghti

1st RESPONDENT: Mr Banis

2nd RESPONDENT: Mrs Banis

3rd RESPONDENT: Ms Baghti

4th RESPONDENT: Mr Baghti

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 29 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 7 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levet

SOLICITOR FOR THE APPLICANT: Baghti & Company Lawyers

SOLICITOR FOR THE 1^ST & 2^ND RESPONDENTS: Mr McDonell, solicitor of McDonell Milne Toltz Family Lawyers

FOR THE 3^RD RESPONDENT: The Wife in person

FOR THE 4^TH RESPONDENT: No appearance by the Husband

Orders

1. That the application by Ms M Baghti for an adjournment is dismissed.

2. That the application by Ms M Baghti for leave to intervene in the proceedings concerning the Amended Application in a Case filed on 14 November 2014 by Mr Banis and Mrs Banis is dismissed.

3. That judgment is reserved in the said proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Banis and Ors 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 2145 of 2009

Ms M Baghti

Applicant

And

Mr Banis

1^st Respondent

And

Ms Banis

2^nd Respondent

And

Ms Baghti

3^rd Respondent

And

Mr Baghti

4^th Respondent

REASONS FOR JUDGMENT

Introduction

1. These are the reasons for judgment in relation to orders made by me on 7 April 2015.  Those orders dismissed an application by Ms M Baghti (“Ms MB”) for adjournment of her application for leave to intervene in enforcement proceedings brought by Mr Banis and Mrs Banis.  The orders also dismissed her application for leave to intervene in the proceedings.

2. Mr Banis and Mrs Banis were interveners in substantive property proceedings which have been completed.  They are the parents of Ms Baghti, the wife in the proceedings.  Fowler J made a costs order against Mr Baghti, the husband in the proceedings, in favour of the wife’s parents.  The wife’s parents are seeking to enforce this costs order.

3. Ms MB is the husband’s sister.  She alleges that the husband owes her a substantial amount of money which she alleges she loaned to him to assist him to pay his legal costs in the property proceedings. 

4. Also on 7 April 2015 I heard the enforcement application by the wife’s parents and reserved judgment.

5. Ms MB has filed a Notice of Appeal against all of my orders of 7 April 2015. On 16 April 2015 I stayed the operation of those orders pending completion of the appeal. I gave oral reasons for so doing on the day.

6. Although the wife’s parents are the applicants in the enforcement proceedings, because Ms MB is the applicant for orders for the adjournment and leave to intervene, I shall regard her as the applicant for the orders to which these reasons relate. I shall regard the wife’s parents as the first and second respondents thereto.  For convenience I shall refer to the wife’s parents as “the parents”.

The Enforcement Application

1. By their Amended Application in a Case filed on 14 November 2014 the parents seek the following orders:

   1.That pursuant to Part 20.4 of the Family Law Rules and in particular under Rule 20.32 the Court issue a Third Party Debt Notice in triplicate requiring that [the wife] pay to … [Mrs Banis] … [and] [Mr Banis] the sum of $91,800 (sic) which she would otherwise be paying to [the husband] pursuant to Order 43 made by Justice Fowler on 22 August 2012 …

   2.That the (parents)  be entitled to a Caveat on the property interest of the Respondent [wife] to protect Order 1.

   3.That the payment by [the wife] … to [Mrs Banis] and [Mr Banis] of $91,080 be a discharge of any obligation she may have for payment to [the husband] pursuant to Order 43 made by Justice Fowler on 22 August 2012.

   4.That [the husband] pay the costs of and incidental to this Application.

   5.That there be a final assessment of costs in favour of the (parents) against  ([the husband]) in the amount of $2,447.50 being costs on an indemnity basis ordered to be paid by ([the husband]) to (the parents) pursuant to Orders made by Registrar Campbell in these proceedings on 12 August 2014.

2. The respondents to this application are Ms Baghti and Mr Baghti to whom for convenience I shall refer as “the wife” and “the husband”.

Background

1. As indicated above, the parents were interveners in final property proceedings between the husband and the wife.  On 22 August 2012, in such final property proceedings, Fowler J made the following order:

   (43)The wife pay to the husband on settlement of the sale of the former matrimonial home an amount of $91,080 and the wife is thereupon declared as against the husband the legal and beneficial owner of her interest in the property situated at and known as [T] Street, [Suburb A].

2. On 27 November 2012 Fowler J made the following order:

   (3)The husband is to pay the Interveners’ costs of and incidental to the proceedings as agreed or assessed, such costs to be on an indemnity basis for the purpose of the hearing, that is to say, from the date of the commencement of the hearing to the conclusion of it, otherwise the costs be on a party and party basis.

3. On 2 September 2014 Senior Registrar Campbell assessed the costs payable by the husband to the applicants in the amount of $109 160. 

4. The husband subsequently sought a review of the assessment and such application for review was dismissed by Rees J on 13 November 2014. 

5. On 11 December 2014 the husband filed an appeal against the decision of Rees J.  On 2 February 2015 the husband was notified by the Appeals Registrar that his appeal had been deemed to be abandoned as at 8 January 2015. 

6. On 2 March 2015 the husband filed an application for reinstatement of the appeal and that was returnable on 20 April 2015. 

7. When the parents’ third party debt notice application came before the Court on 4 December 2014 there was no personal appearance by the husband but his sister Ms M Baghti, who is a solicitor (“Ms MB”), informed the Court that she was mentioning the matter for him.  Ms MB indicated that she proposed to file an application for leave to intervene in the proceedings.  In those circumstances I ordered that the parents serve a sealed copy of their application and all material in support on Ms MB not later than 12 December 2014.  I also ordered that not later than 24 December 2014 Ms MB file an application for leave to intervene in the proceedings together with all affidavits in support.  The proceedings were then adjourned to 23 February 2015.

8. On 23 February 2015 Mr Levet of counsel appeared for Ms MB.  There was an issue about whether Ms MB had complied with the directions made on 4 December 2014 to file her application for leave to intervene and supporting affidavits.  Mr Levet said that he understood the documents had been forwarded to the registry on 24 December 2014.  Mr McDonell for the parents said that he had not received any such documents.  I noticed on the Court file that an Application in a Case by Ms MB was dated under the Court stamp “Filed 9 JAN 2015” as was an affidavit by Ms MB in support.  I remarked that what appeared to have happened was that the documents were received in the registry on 24 December 2014, immediately before the Christmas closing down period and that they were date stamped as having been filed on the next business day which, bearing in mind the Court’s closure over Christmas and early January, was 9 January 2015.  Order 2 of 4 December 2014 appears only to have required Ms MB to “file”, as distinct from “and serve”, an application and all affidavits in support.  In these circumstances, Ms MB has complied with the direction.  But I accepted that the parents and other parties had not been served with the application and affidavit, and I ordered that not later than 4.00 pm on 24 February 2015 those parties be served with the application and affidavits in support.

9. I listed the proceedings for hearing on 7 April 2015 for one day. 

10. On 7 April 2015 Mr Levet of counsel appeared for Ms MB and filed in Court an Amended Application in a Case seeking orders additional to those in Ms MB’s Application in a Case which bore the date stamp 9 JAN 2015.  In her 9 January 2015 application, Ms MB sought leave to intervene in the proceedings and sought an order that the proceedings be stayed pending final determination of proceedings which had been commenced by her in the Supreme Court of New South Wales against the husband and the wife.  In the Amended Application, in addition to those orders, Ms MB sought an order that the proceedings be stayed pending final disposition of the husband’s appeal against the decision of Rees J.  In addition the Amended Application sought the following orders:

    4.A declaration that the orders sought by [the parents] amounts to an acquisition of property on other than just terms. 

    5.An order permanently staying these proceedings consequent on the declaration above. 

Adjournment Application

1. Mr Levet sought an adjournment.  There were three parts to his submission for an adjournment. 

2. The first was that the underlying costs liability of the husband to the parents (assessed as being $109 160) was the subject of an appeal.  As indicated above, the husband’s review of the senior registrar’s assessment was dismissed by Rees J and his subsequent appeal against this dismissal was deemed to have been abandoned.  The husband is currently seeking an indulgence from the Full Court in seeking reinstatement of his appeal.  While I take this into account, in all the circumstances in my view, it carries little weight.  Clearly he has a costs liability to the parents.  There is a considerable margin between the amount of the assessment and the monies sought to be paid to the parents in the enforcement application.  If necessary, in my view, orders could be framed to ensure that there is no injustice to the husband by what is sought by the parents. 

3. The second part of the submission was that Mr Levet inferred that he was not ready.  He said that although he appeared for Ms MB on the last occasion, which was 23 February 2015, he had only just received a brief in the matter the previous day, 6 April 2015.  I shall return to this part of the submission below.

4. The third part to the submission was as follows. There are proceedings in the Supreme Court of New South Wales about the same issue. Initially Mr Levet submitted that those are proceedings between all parties to these proceedings. He subsequently conceded however, that the parents are not parties in the Supreme Court proceedings. He indicated that orders had been made in the Supreme Court proceedings for payment of money into court, apparently by the ANZ Bank, that the Bank has paid such money into court and directions have been made about the remainder of the matter. He said that the wife has filed a cross-summons seeking to be joined in those proceedings, that having occurred on 28 May 2014. In those proceedings Ms MB alleges that she loaned the husband $150 000 to assist him to fund his legal costs incurred and which might be incurred in the substantive property proceedings in this Court. Ms MB alleges that she and the husband entered into a deed dated 6 October 2011 which evidenced their agreement and pursuant to which the loan was secured by what is said to be a charge over property of the husband which would include the $91 080 required by order (43) of the orders of 22 August 2012 which the parents are seeking to have made payable to them in these proceedings. Ms MB has a chose-in-action in the Supreme Court proceedings and this is property. Something which in effect seeks to deprive her of that property amounts to an acquisition of that property. That gives rise to a constitutional issue which in turn gives rise to a requirement pursuant to s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), that is that notice must be given of the cause to the Attorneys-General of the Commonwealth and of the States. This would take some time to complete and accordingly, the Court must adjourn the proceedings because the requirement under the Judiciary Act is mandatory. The constitutional issue arises because there are causes of action in two jurisdictions and the line of authority in the case of Re Wakim; Ex parte McNally (1999) 198 CLR 511 is then engaged. There are considerations about whether one can cross-vest an action in the Family Court with the Supreme Court proceedings and vice versa. There would appear to be a single justiciable issue and therefore there is a lot to be said for the issue occurring in the same court. If the parents were to come into receipt of the money which under the substantive order would have been paid to the husband, in effect the parents would acquire property on other than just terms. There must be questions about the power of this Court to determine such an application and that engages the question of constitutionality.

5. I note that sub-section 78A(1) of the Judiciary Act is as follows:

   (1)The Attorney-General of the Commonwealth may, on behalf of the Commonwealth, and the Attorney-General of a State may, on behalf of the State, intervene in proceedings before the High Court or any other federal court or any court of a State or Territory, being proceedings that relate to a matter arising under the Constitution or involving its interpretation.

6. I am not persuaded by Mr Levet’s submission that the present proceedings relate to a matter arising under the Constitution or involving its interpretation. His submission, suggesting that what might be involved is that the matters at the heart of the proceedings in this Court and those involved in the proceedings in the Supreme might involve a single justiciable issue, perhaps infers a question about the possibility of this Court needing to consider accrued jurisdiction. Even if that was the case, this would not of itself raise a constitutional issue.

7. I cannot accept Mr Levet’s submission that this case raises a consideration about whether an action in the Supreme Court of New South Wales can be cross-vested to this Court. This is because in Re Wakim (above) the High Court made it clear that under the Constitution, State judicial power cannot validly be vested in a federal court.

8. Mr Levet has not succeeded in persuading me that there is a need for service of notices pursuant to s 78B of the Judiciary Act. He does not suggest any constitutional invalidity of any particular provision of the Family Law Act or Rules or any other provision of Commonwealth legislation which might be relevant to the present proceedings. He has not indicated how the s 78B notices which he says are mandatory would be framed. In all the circumstances, I regard his submission that s 78B of the Judiciary Act is attracted in this case as a mere assertion rather than as being supported in substance.

9. In the High Court case of Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73 Toohey J said as follows at page 74:

   In terms of section 78B, a cause does not “involve” a matter arising under the constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the constitution.

10. Further examples of the proper approach in cases where it is alleged that a question of the interpretation of the Constitution arises can also be seen in the Full Court cases of Vella & Vella (10 August, 1992, unreported) and Abbott and Abbott (1995) FLC 92-582. In both those cases the respondents were seeking to raise s 116 of the Constitution which requires the Commonwealth not to legislate in respect of religion including prohibiting the free exercise of any religion. In both cases s 116 was raised to challenge the validity of decrees dissolving marriages. In Abbott, although the reference to s 116 raised a constitutional point, the Full Court said “… it would be absurd to require notice to be given every time these issues are sought to be relitigated.”. In Vella the Full Court said about the issue raised by Mr Vella concerning s 116 of the Constitution “although the … issue raised by Mr Vella may involve the interpretation of the Constitution, it is, I think, insufficiently arguable to justify setting in motion the machinery under s 78B. Whilst it is not usually for this Court to make a preliminary judgment in relation to such issues, there must be some filtering process and, as I have concluded that there is really nothing in the section 116 argument, it does not seem to me that it is necessary for that step to be undertaken.”.

11. I do not accept Mr Levet’s submission that upon the possibility of a constitutional argument being raised it is mandatory for the Court to provide an adjournment so that the relevant notices can be served. 

12. In relation to the submitted bases for an adjournment apart from the alleged constitutional argument, in my view, it is important not only to consider the impact of an adjournment on the immediate parties in the proceedings, but also the cost to the Court in terms of its case management system.  I note Rule 1.04 of the Family Law Rules (Cth) (“the Rules”) which is as follows:

    The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

13. And to facilitate achievement of this main purpose, the Rules include specific provisions based on modern case flow management principles. For example Chapter 11 of the Rules sets out the ways the court may manage a case to achieve the main purpose of the Rules.

14. Similar rules of court procedure were the subject of consideration by the High Court in the case of AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. The High Court was considering the correctness of the decision of the trial judge and the Court of Appeal of the Supreme Court of the Australian Capital Territory in granting to the Australian National University an adjournment and leave to amend its claim against its insurance broker early in a four week trial. The High Court held that in considering the application for adjournment and amendment of the claim it was important to consider case management principles. The relevant Court Procedures Rules included Rule 21 which was as follows:

    (1)The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.

    (2)Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving –

    (a)the just resolution of the real issues in the proceedings; and

    (b)the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

    (3)The parties to a civil proceeding must help the court to achieve the objectives.

    (4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court."

1. At [92] and [93] on CLR page 211 the majority said as follows:

   92.The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process [footnote omitted]. In its report in 2000, Managing Justice: A review of the federal civil justice system [footnote omitted], the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation" [footnote omitted].

   93.Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected [footnote omitted]:

   "[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ...".

2. French CJ said the following at [5] on CLR page 182:

   In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.

3. In my view, on the basis of this authority, the principles of case management in this Court are clearly relevant to the consideration of the adjournment application by Ms MB.  Mr Levet conceded that the decision in AON (above) was against his client’s application.  But he sought to distinguish the facts in AON from those in the present case.  He said that in AON the application to amend the pleadings related to a substantive issue whereas in the present case the amendment and the application for an adjournment was related to jurisdiction.  I must say I am unpersuaded by this submission and maintain my view that it is relevant to consider case management principles in arriving at a view about the adjournment application. 

4. As French CJ has made clear, it is relevant to take into account that “whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings.”  As his Honour also said it is also relevant to take into account inefficiency in the use of court resources and the public cost involved, as well as the need to maintain public confidence in the judicial system.

5. The plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said at [114] as follows:

   Rule 21 of the Court Procedure Rules recognises the purpose of case management by the Courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule’s objectives, as to the timely disposal of cases  and the limitation of cost, were to be applied in considering ANU’s application for amendment

6. In my view, this Court has a duty under its Rules to hear applications in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances.

7. The parents have been involved in the proceedings for in excess of four years.  They achieved property orders and a substantial costs order in their favour.  They have had to endure a very considerable number of court appearances.  They are endeavouring to be able to have their enforcement application determined in order to achieve the fruits of their litigation. As indicated above, Ms MB has been aware of their application for at least four months. Such a period should be more than sufficient to enable proper preparation of her application.  The application had been adjourned previously to provide opportunity to Ms MB to present a case for leave to intervene.

8. In relation to the aspect involving cost to the Court and consequences to other litigants, one hearing day was allocated for this application, this being 7 April 2015.  Mr Levet was present at Court on 23 February 2015 when this was done.  It is not a simple matter to find a replacement hearing day, available hearing time having been allocated several months in advance. If the hearing had been adjourned, the day allocated would have been lost and another day, which otherwise would have been available to assist some other litigants, would have had to be expended in accommodating this case.

9. In all these circumstances, in my view, the appropriate course was for Ms MB’s adjournment application to be refused.

Application for Leave to Intervene

1. I have referred above to the particular orders sought in the event that leave was given to Ms MB to intervene in the proceedings. In summary these would involve the parents being restrained from continuing these proceedings until the Supreme Court proceedings were completed. They would also involve the argument that if the money to be paid by the wife to the husband was re-directed by order to be paid to the parents in partial satisfaction of the husband’s costs owed to them, this would amount to acquisition of property on other than just terms.

2. The rights which the parents are seeking to assert have been established by orders following a lengthy trial.  The Court exercised its powers pursuant to s 79 of the Act, making orders in favour of the husband, the wife and the parents on 22 August 2012.  These orders followed the trial which was heard over 14 days between 29 August and 22 September 2011, on which date judgment was reserved and directions made for written submissions.

3. As indicated above, Ms MB alleges that she and the husband entered into a deed on 6 October 2011 which was evidence of a liability the husband had to her for $150 000 which she alleges she loaned to him to assist him to pay his legal costs.  The date of 6 October 2011 occurred approximately two weeks after Fowler J completed hearing the evidence in the trial and well prior to his Honour making orders.  Yet it is clear that this alleged deed was not brought to his Honour’s attention notwithstanding that it would have been available to the husband to seek leave to re-open his case and seek to place such a document in evidence before his Honour.

4. In any event, his Honour identified the assets and liabilities of the parties at [910] of his judgment.  In his findings about liabilities there is no reference to any liability of the husband to Ms MB.  At [980] his Honour said as follows:

   The Court notes that each of the husband and wife has paid large sums in legal fees, and has borrowed substantial amounts of money to pay their legal fees.  The husband asserts that he has borrowed $350,000 from his siblings, and the wife asserts she has borrowed $150,000 from [WS] Mortgage Management, and $300,000 from the interveners which is in turn owed to [WS] Mortgage Management. 

5. This passage makes it clear that his Honour did not accept for the purposes of the substantive proceedings that the husband owed money to members of his family which, presumably, might have included Ms MB.

6. Order (42e) of his Honour’s orders on 22 August 2012 is as follows:

   The husband is to charge his entitlement to any sum payable to him under these Orders with any obligation he has to pay to any witness or party to these proceedings any amount required by order of the Court or agreement of the parties to be paid.

7. Mr Levet said that this charge must give way to Ms MB’s alleged charge if proved, on the basis that her charge was earlier in time.

8. In my view Ms MB is too late in the application she now brings for leave to intervene in these proceedings.  In my view, what has occurred is that the proceedings between the husband, the wife and the parents have been completed by the making by his Honour of his orders on 22 August 2012 in relation to substantive matters and the making of the costs order against the husband, and in favour of the parents on 27 November 2012.

9. As I have said, in my view, those orders reflect the substance of the matters which were before his Honour for adjudication and they have brought to conclusion the matters which were in issue before his Honour including an assertion that the husband owed money to his siblings.  To the extent that Ms MB might have wanted to assert that the husband owed her money, she could have sought Fowler J’s leave to intervene.  She did not do so.

10. Ms MB is free to pursue whatever rights she might have against the husband outside these proceedings.  But in my view, not having been a party in the substantive proceedings, she cannot now properly intervene in these proceedings.  What her application would involve, in my view, would be an endeavour to re-visit matters which were before Fowler J which have been completed in substance by his Honour’s orders.  True it is, that there remains an application by the parents to vary his Honour’s orders.  In my view, however, such application seeks orders of a machinery or enforcement nature and only between parties who were parties in the substantive proceedings.  As such, in my view, there remains power for the Court to make such orders.

Conclusion

1. In my view, it is appropriate to dismiss the application by Ms MB to intervene in these proceedings.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 29 April 2015.

Associate:     

Date:              29 April 2015