BRAYDEN & BRAYDEN
[2014] FCCA 1874
•28 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRAYDEN & BRAYDEN | [2014] FCCA 1874 |
| Catchwords: BANKRUPTCY – FAMILY LAW – Property orders made in family law jurisdiction – orders for payment of money – non-compliance with orders – enforcement proceedings taken – spouse against spouse – no application for receiver under Family Law Act 1975 – dismissal of application. |
| Legislation: Family Law Act 1975, ss.4,8, 80, 81 Federal Circuit Rules 2001, r.1.05 Federal Circuit Court (Bankruptcy) Rules 2006 Bankruptcy Act 1966, ss.35, 43, 52(5) |
| Applicant: | MS BRAYDEN |
| Respondent: | MR BRAYDEN |
| File Number: | BRG 484 of 2013 |
| Judgment of: | Judge Coates |
| Hearing date: | 28 February 2014 |
| Date of Last Submission: | 28 February 2014 |
| Delivered at: | Bundaberg |
| Delivered on: | 28 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Carswell & Company Solicitors |
| Solicitors for the Respondent: | Self-Represented |
ORDERS
That the Application filed 3 April 2013 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Brayden & Brayden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BUNDABERG |
BRG 484 of 2013
| MS BRAYDEN |
Applicant
And
| MR BRAYDEN |
Respondent
REASONS FOR JUDGMENT
Although this is an application pursuant to the Bankruptcy Act 1966, to assist in understanding the matter I will refer to the applicant as the wife and the respondent as the husband.
That is because this bankruptcy proceeding is based on orders made pursuant to property settlement proceedings under the Family Law Act 1975.
On 1 November 2011, Spelleken FM made the following orders:
a)The husband pay to the wife the amount of $9,352.94 within 28 days of the date of this Order;
b)The $11,000 held in the trust account of Carswell & Company be forthwith paid to the wife and this Order shall be authority to Carswell & Company to release the monies to the wife; and
c)The husband pay the wife’s costs of and incidental to application filed 20 January 2010 fixed in the amount of $3,360.60.
The orders were made in enforcement proceedings of final property orders made by Jarrett FM on 30 January 2008.
No orders were made, and as I understood the matter, none were applied for at the time of the enforcement hearing, to provide a mechanism which would ensure payment was perfected.
Nor were orders sought later to provide a mechanism to ensure payment was perfected.
As a consequence, the monies have not been paid by the husband to the wife.
The reasons for making the orders (under the Family Law Act 1975) were set out by Spelleken FM in a judgment delivered on 1 November 2011.
The husband appealed against that decision, but the appeal was dismissed by the Full Court of the Family Court of Australia.
Because monies have been ordered to be paid by way of an order under enforcement proceedings, prime facie, the applicant was and remains entitled to seek the appointment of a receiver, under the jurisdiction of the Family Law Act, in conjunction with an application of the Federal Circuit Rules 2001 as well as the Family Law Rules 2004, to perfect the orders.
I repeat, no such application, as far as I could discern, has been made, with the applicant choosing to seek orders under the Bankruptcy Act.
On 18 December 2012, a bankruptcy notice was served by the wife on the husband in relation to the unpaid amount.
The husband’s application to set the notice aside was dismissed by a registrar of the Federal Court of Australia on 13 March 2013.
On 11 April 2013, the wife filed a creditor’s petition under the Bankruptcy Act.
The petition seeks a sequestration order under s.43 of the Bankruptcy Act against the estate of the husband.
The petition claims that:
“1. The respondent debtor owes the applicant creditor the amount of $14,087.42 in accordance with the Judgment of BRC13044 of 2007 of Spelleken in the Federal Magistrates Court dated 1st November 2011;
2.The applicant creditor does not hold security over the property of the respondent creditor;
3.At the time when the act of bankruptcy was committed, the respondent debtor:
a. Was personally present in Australia;
b. Was ordinarily resident in Australia;
c. Had a dwelling house or place of business in Australia.
4. The following act of bankruptcy was committed by the respondent debtor within 6 months before presentation of this petition:
The respondent debtor failed to comply on or before 11th January 2013 with the requirements of a bankruptcy notice served on him on 21st December 2012 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.”
The figure of $14,087.42 is said to be made up of the two amounts stated in the orders of Spelleken FM, plus interest.
As well as that a sequestration order be made, the applicant then seeks, pursuant to an application in a case filed 20 February 2014:
a) The appointment of a Mr S as receiver to the estate of the husband (Mr S is an employed accountant with the firm [omitted] Chartered Accountants in Brisbane and agrees to being appointed the receiver, I assume under the Bankruptcy Act, if the sequestration order sought is made);
b) The transfer of the husband’s property at [Property U] to the receiver for sale;
c) That upon sale the usual costs and outgoings are paid, such as the agent’s commission and fees, legal costs, discharge of the Westpac mortgage, the receivers coasts, fees and disbursements; the sum of $12,712.94 to the applicant wife (although no explanation was given as to why this figure does not include the interest claimed in the petition bringing the total to of $14,087.42); costs of this application and any remainder to the respondent husband (orders which follow the priority of payment regime under the Bankruptcy Act) ;
d) That, and I am quoting from the wording of the proposed order:
“If the Respondent husband fails or refuses to execute any deed or instrument necessary to give effect to these orders, that the District Deputy Registrar of the Brisbane Registry of the Federal Circuit Court of Australia be appointed pursuant to Sections 105 and 106A of the Family Law Act 1975 to sign such deed or instrument in the name of the Respondent and that the District Deputy registrar do all necessary things to give force and effect to these orders”;
e) That the husband vacate his property;
f) Another order for costs of this application being $1,841; and
g) A stay of the orders if the husband pays to the wife $12,712.94 within seven days of the orders being made.
As can be seen, pursuant to the draft order stated at d) above, there is a proposed mixing of powers of the court for the substantive orders to be made under the Bankruptcy Act and facilitating orders under the Family Law Act.
This is no mere mistake on the part of the applicant’s representative, because during submissions when questions of jurisdiction and procedure were raised, I was urged to simply make the appointment of the receiver orders under the Family Law Act. To assist in that, as I found out later, the applicant had filed another application in the family law jurisdiction.
I will state clearly now, I do not view the powers afforded to the court under either Act, to be interchangeable. Each Act provides the court with powers specific to the jurisdiction of the individual Act.
As for the husband’s case, he does not admit the debts under the Bankruptcy Act, although he seemed to be re-running his case which was dismissed on the appeal under the Family Law Act in relation to the original orders. He in fact claims a set-off, and despite submissions that these matters were dealt with upon appeal of the orders of Spelleken FM to the Family Court of Australia, that is not a bar to him legitimately having his case tested under the bankruptcy jurisdiction.
Because of the bitter dispute and the state of the material, I raised the issue of jurisdiction and whether this matter was an abuse of process and whether it should not have been filed under the Family Law Act, so that a receiver could be appointed to recover money under orders.
A receiver may be appointed pursuant to s.80 of the Family Law Act, in conjunction with the powers to be exercised under r.20.46 of the Family Law Rules 2004 and pursuant to r.1.05 of the this court’s rules.
Such applications do not appear to be common, but the Family Law Act1975 and the rules I have referred to anticipate applications where a party is entitled to receive money under orders and the other party fails or refuses to comply with the orders. The mechanism allows for the perfecting of orders made to finally end the financial relationship as is anticipated by s.81 of the Family Law Act, which states:
“Section 81. Duty of court to end financial relations
In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.”
On 5 February 2014, in written submissions, I was told that the applicant seeks to recover money as an unsecured creditor and that such course was unusual, because the typically preferable procedure was to enforce by way of sequestration, receivership or attachment of debt.
The submission stated that otherwise there would be no substantial benefit to the wife because the husband is a disability pensioner, he funds the mortgage on his home (the former matrimonial home) by receiving board from lodgers and he claims a negative equity, that is, that the mortgage is greater than the property’s value.
The submissions state that an attachment order cannot be made because the husband is on a pension.
Further, the submissions state at paragraph 6 that:
“…The wife is also reluctant to pay costs of appointing a receiver under the Family Law Act given the prospect that the house is in negative equity…consequently bankruptcy proceedings are the only viable alternative for the Wife”.
I note that these were mere assertions, because the matter did not proceed to testing evidence.
Keeping in mind that I was requiring submission on the powers to make the orders sought, because the application involved spouse against spouse on orders made under the Family Law Act, I was taken to the Bankruptcy Act, and told that it grants jurisdiction to the court:
“Paragraph 7. …In two respects…. one inherent and one contingent: – section 35 of that Act grants the Family Court a permanent jurisdiction in bankruptcy in relation to any matter where one of the spouses is bankrupt and their estate is participating in family law proceedings. Section 35A grants the [Family] Court a temporary jurisdiction in bankruptcy when a matter (presumably involving two spouses) is transferred to that Court from the Federal Court or Federal Circuit Court pursuant to that section. In that latter instance, the Family Court is empowered to do anything that the Federal Court or Federal Circuit Court could have done in respect of that case – that is to say, that the Family Court is temporarily imbued with the bankruptcy jurisdiction of the referring court.
8. The inherent jurisdiction conferred on the Family Court by Section 35 does not normally extend to making a sequestration order declaring a party to be bankrupt. This is because that Section only arises when one of the parties is bankrupt already and their trustee is a party to the proceedings. However, the Family Court does occasionally declare a party bankrupt by issuing a sequestration order when proceedings are referred to it pursuant to Section 35A of the Bankruptcy Act, either by the Federal Court or Federal Circuit Court. For instance, in the case of Malta and Malta and Ors (No3) [2008]FamCA 748 the Court issued a sequestration order against the Wife, although this was at the instigation of a third party petitioning creditor, who had originally started bankruptcy proceedings in the Federal Magistrates Court. His Honour McInnis FM simply noted that: “The provisions of the Bankruptcy Act 1996 [sic] (Cth) give this Court jurisdiction to determine a matter otherwise transferred to it.”
However, on my reading of s.35 of the Bankruptcy Act, the empowerment of the Family Court is only when a party, usually a husband or wife, is bankrupt and the trustee in bankruptcy is a party, or the matter is one where spousal maintenance orders have been made. Those conditions are not apparent in this matter as the husband is not a bankrupt and there is no spousal maintenance order, so no inference can be drawn as to this court’s powers in the application which is before it.
Section 35A is of a different nature. It allows the Family Court to deal with a bankruptcy matter transferred to it by the Federal Court or the Federal Circuit Court, and the Family Court can deal with the proceeding brought under the Bankruptcy Act. That part of the provision is not difficult to understand.
The submission essentially was that because the Family Court may exercise certain powers, this court could also exercise those powers because in some manner the court acquired the same powers. I cannot see the connection, as this court is clearly empowered to determine proceedings in the bankruptcy jurisdiction regardless of those powers given to the Family Court in limited circumstances. The submission also seemed to be one which read widely the powers given to the Family Court by s.35A of the Bankruptcy Act 1966, especially the wording in s.35A, which states the power of the Family Court:
“Section 35A. Transfer of proceedings to Family Court
(1) Subject to subsection (2), where a proceeding is pending in the Federal Court, the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Family Court.
(2) A proceeding that is pending in the Federal Court at the commencement of this section shall not be transferred to the Family Court unless the parties to the proceeding consent to the transfer.
(2A) If a proceeding is pending in the Federal Circuit Court, the Federal Circuit Court may, on the application of a party to the proceeding or on its own initiative, transfer the proceeding to the Family Court.
(3) Subject to subsection (4), where a proceeding is transferred to the Family Court:
(a) the Family Court has jurisdiction to hear and determine the proceeding;
(b) the Family Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether by virtue of paragraph (a) or otherwise):
(i) that are associated with matters arising in the proceeding; or
(ii) that, apart from subsection 32(1) of the Federal Court of Australia Act 1976 , the Federal Court would have had jurisdiction to hear and determine in the proceeding;
(c) the Family Court may, in and in relation to the proceeding:
(i) grant such remedies;
(ii) make orders of such kinds; and
(iii) issue, and direct the issue of, writs of such kinds;
as the Federal Court could have granted, made, issued or directed the issue of, as the case may be, in and in relation to the proceeding;
(d) remedies, orders and writs granted, made or issued by the Family Court in and in relation to the proceeding have effect, and may be enforced by the Family Court, as if they had been granted, made or issued by the Federal Court;
(e) appeals lie from judgments of the Family Court given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge, and do not otherwise lie; and
(f) subject to paragraphs (a) to (e) (inclusive), this Act, the Federal Court of Australia Act 1976 , and other laws of the Commonwealth, apply in and in relation to the proceeding as if:
(i) a reference to the Federal Court (other than in the expression "the Court or a Judge") included a reference to the Family Court;
(ii) a reference to a Judge of the Federal Court (other than in the expression "the Court or a Judge") included a reference to a Family Court Judge;
(iii) a reference to the expression "the Court or a Judge" when used in relation to the Federal Court included a reference to a Family Court Judge sitting in Chambers;
(iv) a reference to a Registrar included a reference to a Registrar of the Family Court; and
(v) any other necessary changes were made.”
In my view, the submissions as to what powers the Family Court may exercise in bankruptcy matters is completely, utterly, irrelevant, because this court has power to make decisions under both the bankruptcy and the family law jurisdiction.
What was missing, an issue I raised with the solicitor for the applicant, were submissions as to the powers to make the orders being pursued. It appears that the word “proceedings” at s.35A(3)(a) is being read widely to include dispute between spouses.
Without addressing s.8 of the Family Law Act, with full, proper and relevant submission as to how s.8 is to be read as against the Bankruptcy Act, I am to try and determine what powers this court can exercise in relation to the matter now before it.
I was referred to cases by the applicant’s solicitor, however, I do not view these as assisting me, because I was not referred to a final decision in which one former spouse has successfully obtained orders under the Bankruptcy Act against the other former spouse, in circumstances similar to the situation here.
It is helpful to set out s.8 of the Family Law Act, which, on its face appears to limit proceedings, as well as parts of s.4, which also needs to be considered.
It states:
“Section 8. Supersession of existing laws
(1) After the commencement of this Act:
(a) proceedings by way of a matrimonial cause shall not be instituted except under this Act; and
(b) proceedings by way of a matrimonial cause instituted before the commencement of this Act shall not be continued except in accordance with section 9.
(2) Proceedings for a decree of restitution of conjugal rights, of jactitation of marriage or of judicial separation shall not be instituted or continued after the commencement of this Act.
(3) Proceedings for a separation order shall not be instituted after the commencement of this Act.
The old matrimonial cause actions are defined in the Family Law Act, at s.4, as:
"Section 4. “Matrimonial cause" means:
(a) proceedings between the parties to a marriage, or by the parties to a marriage, for:
(i) a divorce order in relation to the marriage; or
(ii) a decree of nullity of marriage; or
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage; by decree or otherwise; or
(c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; or
(caa) proceedings between:
(i) a party to a marriage; and
(ii) the bankruptcy trustee of a bankrupt party to the marriage;
with respect to the maintenance of the first-mentioned party; or
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or
(cb) proceedings between:
(i) a party to a marriage; and
(ii) the bankruptcy trustee of a bankrupt party to the marriage; with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings:
(iii) arising out of the marital relationship; or
(iv) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or
(v) in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or
(d) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; or
(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB); or
(ea) proceedings between:
(i) the parties to a marriage; or
(ii) if one of the parties to a marriage has died--the other party to the marriage and the legal personal representative of the deceased party to the marriage;
being proceedings:
(iii) for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 87 and the approval of which has not been revoked;
(iv) in relation to a maintenance agreement the approval of which under section 87 has been revoked; or
(v) with respect to the enforcement under this Act or the applicable Rules of Court of a maintenance agreement that is registered in a court under section 86 or an overseas maintenance agreement that is registered in a court under regulations made pursuant to section 89; or
(eaa) without limiting any of the preceding paragraphs, proceedings with respect to a financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); or
(eab) third party proceedings (as defined in section 4A) to set aside a financial agreement; or
(eb) proceedings with respect to the enforcement of a decree made under the law of an overseas jurisdiction in proceedings of a kind referred to in paragraph (c); or
(f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.”
Read together, the sections appear to place limits or restrictions on proceedings which are properly family law proceedings.
They also appear to restrict bankruptcy proceedings between family law parties to specified situations, however amendments such as those made by s.35 and s.35A of the Bankruptcy Act 1966 widened the powers of the Family Court to include certain bankruptcy matters, powers which the Federal Circuit Court already had.
However, on my reading of the sections, there is no clear guide to allowing bankruptcy proceedings as between spouses for non-payment of property orders, although there is reference to powers in relation to a bankrupted party and his or her trustee in bankruptcy.
There was no submission on the width of the powers to be exercised in relation to s.4(ca)(i), which confines property proceedings within the exclusive jurisdiction of the Family Law Act, which in my view, at least on its face, would mean remedy for non-payment under property enforcement orders may need to be found under the Family Law Act.
Although I was not referred to these governing sections of the Family Law Act, the applicant’s submissions proceeded on the basis that the court’s powers to make the orders sought exist under the Bankruptcy Act, without need to refer to s.8 of the Family Law Act.
There is also another assumption, not argued, and that is that the order-in-issue is a final order, as bankruptcy proceedings cannot be undertaken without an order being final. As a general description, final orders of final judgments are those which end an action. It is this lack of submission on this issue which caused me to consider whether there had been any application for machinery orders to ensure payment by the husband to the wife was perfected. That can be done of course under the Family Law Act, as I have stated by seeking orders to appoint a receiver, and such has not been done.
The husband in this case objects to the jurisdiction being invoked, stating in submissions that the wife is being vindictive. In my view, as an unrepresented party, he is arguing as best he could that the jurisdiction being invoked may be an improper use of process.
I clearly put the parties on notice that the application in bankruptcy may be an abuse of process, because the Family Law Act contains procedures for both enforcing and finalising orders, keeping in mind that the orders of Judge Spelleken were the result of an enforcement hearing only.
Bankruptcy proceedings are available, putting aside the questions over s.8, when an insolvent person cannot pay their debts and the order made is a final order - the question of whether a party is insolvent being a fact to be determined. The respondent claims he can pay the debts, merely that he has other set offs that have not been determined.
Under the family law jurisdiction – his claims have been determined at appeal, and cannot be tested further, although, as I say, his claims could be tested under the bankruptcy jurisdiction. Whether the orders made were final in the sense that bankruptcy could be envoked was simply not addressed by the wife’s solicitor.
This is an extremely important question and brings into focus the outcome of an order for the alteration of property interests under the Family Law Act, which (may) alter interests in property if such an outcome is just and equitable, but may also leave the property where it is, depending on the circumstances, however, the court’s duty is to end the financial relationship.
Where such orders are made, enforcement powers are provided to enforce orders under the Family Law Act.
If an enforcement order is made, the rules I have previously referred to allow for a receiver to be appointed to recover that which is the subject of the enforcement order.
The costs of a receiver are probably no different as between a receiver appointed under the Bankruptcy Act and one appointed under the Family Law Act.
If there is no property, then unfortunately there is no property to recover the debt from.
However, an outcome of proceedings under the Bankruptcy Act has dramatic and stigmatising results for a bankrupted person, far beyond those that such person would encounter if enforced to meet orders pursuant to the Family Law Act, although bankruptcy proceedings by non-related parties may later ensue.
The careful policy of the Family Law Act is to end the financial relationship between the parties, it is not one of stigmatising one party. That does not mean that an errant spouse will be allowed to defraud the other party.
There was also a submission and evidence that a receiver under the Bankruptcy Act is willing to act and will take fees from the respondent husband’s estate, which appears to me to defeat the submission that it would be too costly to appoint a receiver under the family law jurisdiction. At one point I was told the bankruptcy route was chosen because of the public funding of the receiver, yet the orders seek that the receiver’s funds come from the husband’s estate. The submissions were moveable.
The wife’s solicitor has obviously thought about the issue, because on 5 March 2014 the wife filed an application in a case under the Family Law Act, seeking:
“1…. To enforce the Judgment against the Respondent in relation to the debt of $9,352.94 pursuant to paragraph 1 of the Order of the Federal Magistrates Court dated 1st November 2011 made by Federal Magistrate Spelleken”; and
2. That the Applicant be granted leave to enforce the Judgment against the Respondent in relation to the debt of $3,360.00 pursuant to paragraph 3 of the Order of the Federal Magistrates Court dated 1st November 2011 made by Federal Magistrate Spelleken…”
On 10 April 2014 I dismissed that application when told that it related to the application before me now in bankruptcy. I must say, counsel who appeared on that day had no idea of what the matter was about but on obtaining telephone instructions from the wife’s solicitor, conveyed that it was about this matter.
I had no useful submissions about the orders being sort in that application, although relevantly, they did not seek appointment of a receiver or sequestration under the Family Law Act, which is exactly the order which should have been sought.
In my view the filing of that application displays a singular lack of focus on just what it is the wife is actually seeking.
To go back to the beginning, she sought and received orders for the payment of a sum of money by way of enforcement of property orders. No further order was sought to perfect those orders. Orders can be sought to perfect those orders – the applicant could apply for appointment of a receiver.
It appears to me then that the orders made by Judge Spelleken may not be classed as a final order, because something else should and needed to be done regarding the restrictive orders which she was asked to make. I realise that determining whether an order is final or not can be a difficult legal question but this was never addressed by the wife’s solicitor.
The question for me then is whether the application in bankruptcy is an abuse of process and this is not necessarily a difficult concept to understand.
Butterworth’s Australian Legal Dictionary gives a reasonable definition, being: “the misuse or unjust or unfair use of court process and procedure”.
In my view, the power to appoint a receiver or to sequestrate exists within the family law jurisdiction as the final step to be taken in relation to Judge Spelleken’s orders.
As well, contravention and contempt proceedings can be taken to deal with an errant litigant who has breached a family law order without reasonable excuse.
I view the application to bankrupt the husband then as an abuse of process, based on the oral submissions made on three separate occasions, by the solicitor for the applicant, that this was an enforcement proceeding. Enforcement of the orders is by way of appointing a receiver under the family law jurisdiction, the idea being to enforce the order to recover monies ordered under the judgment. Bankruptcy proceedings are to recover a sum because a person is insolvent and cannot pay, and can only be applied for upon final orders being made. I am not satisfied that the order made is final because there is another step which should have been taken at the time the applicant applied for the orders she received, that is a set of orders to perfect payment. I will make it clear that I am not ruling out bankruptcy proceedings on a final basis, however, not only is a final order required, so are submissions on s.8 of the Family Law Act.
It is on these grounds that I dismiss the application in bankruptcy, without having to decide whether in fact the action could be prosecuted under the Bankruptcy Act.
I will also note that the bankruptcy notice expired on 11 April 2014, one year after it commenced. Section 52(5) of the Bankruptcy Act 1966 allows for an extension by order, however, such requires an application and no application was made by the applicant. Because the respondent is self-represented, it is not up to the court to progress the applicant’s case, especially when she is represented, as it is not up to the court to progress the respondent’s case.
Having said that, on the evidence I viewed, I may well have been persuaded to appoint a receiver had the application been made within the family law jurisdiction, as the respondent has exhausted all arguments in that jurisdiction.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 28 August 2014
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