CALLIS & CALLIS

[2014] FamCA 135

FAMILY COURT OF AUSTRALIA

CALLIS & CALLIS [2014] FamCA 135

FAMILY LAW – ORDERS – Enforcement – Superannuation orders

FAMILY LAW – INJUNCTIONS  – Injunctive relief refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr Callis

RESPONDENT: Ms S Callis

FILE NUMBER: MLC 11308 of 2010

DATE DELIVERED: 20 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 February 2014

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Mellas

SOLICITOR FOR THE RESPONDENT: Oakfair Lawyers

Orders

1. That paragraph 1.2.7 of the orders made on 28 February 2013 is amended under rule 17.02 of the Family Law Rules 2004 to delete the figure “3” and replace it with “1.2.2”.

2. That the wife pay to the husband $1210 forthwith.

3. To the extent that the council rates, water rates and body corporate rates and fees in relation to the Suburb D property are still outstanding, the wife forthwith pay all such outstanding expenses.

4. That all outstanding applications are otherwise dismissed.

5. That the reasons this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Callis & Callis 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 MELBOURNE

FILE NUMBER: MLC 11308 of 2010

Mr Callis

Applicant

And

Ms S Callis

Respondent

REASONS FOR JUDGMENT

1. The proceedings in this court relating to property between Mr Callis, to whom I shall refer in these reasons as the husband, and Ms Callis, to whom I shall refer as the wife, began over a decade ago.  I shall refer to them as husband and wife notwithstanding they are long separated and presumably long divorced.  I do so for my own convenience.  The settlement of their property matter was finalised in December 2002.  The orders then made included an alteration of property interests.  What could not then be permanently finalised was an alteration of their respective superannuation interests, because the legislation empowering splitting was not operative for them.

2. In 2010, further proceedings were brought before the Court, and, doing the best I can with the evidence provided, they concerned the enforcement of the 2002 orders.  Those proceedings culminated in orders of Bennett J on 28 February 2013.  I have had the advantage of reading her Honour’s reasons for then making orders under s 79A(1)(b) and (c).  Having satisfied her Honour of the power of the court to thereafter make a splitting order, her Honour did so by consent of the parties.  The essence of the order was that a self-managed superannuation fund of the parties was to be split.  The base amount was determined by the parties to be the amount equal to the value of a real property in Suburb D, Queensland.  That sum was to be met by a transfer of the Suburb D property to the wife’s superannuation fund. 

3. Her Honour reflected on the possibility that the transfer to another fund might not be possible, but each party was to do everything necessary to implement the split.  As will be obvious, because the wife was not of retirement age, the transfer by the self-managed superannuation fund trustee had to be to a fund of her choosing.  Her Honour’s orders provided further that “all costs, including taxation, if any, associated with the rollout, transfer, or any other dealing with the property, be at the wife’s expense.”  I pause to note the curious nature of such an agreement between the parties.  I would have expected the relevant expenses to be the responsibility of one, if not both, of the trustees.  Such was not to be.

4. A more difficult problem was that the reference to the relevant paragraph in the order was wrong.  In my view, that can be corrected by use of the slip rule.  The reference to paragraph 3 in paragraph 1.2.7 of the orders should be paragraph 1.2.2.  In addition to that transfer from one fund to another, but presumably as an incidence of the property division power in the Family Law Act, 1975 (Cth) (“the Act”), the wife was contemporaneously with the transfer to pay into what was to become the husband’s sole superannuation fund, the sum of $55,000.  Thereafter, the wife was to resign as a director of the corporate trustee of the then-husband’s fund.

5. It was then explicitly set out that the wife was to thereafter indemnify the husband against “all rates, taxes and outgoings of or with respect to the [Suburb D] property of whatsoever nature and kind.”  Thus, even though the wife did not own the Suburb D property, and only had the recognisable interest in her own superannuation fund, she was personally responsible for those expenses.  Finally, the order provided that from the moment of the transfer from one trustee to the other, it was the husband who was to personally indemnify the wife in relation to liabilities she, as distinct from the trustee, might have in relation to the fund. 

6. It will be seen that the drafting was at best clumsy, and at worst not achieving what the parties really wanted.  One might have expected that the order had ended all financial dealings between the parties.  Unfortunately, not so. 

7. The husband now brings an application, the amended version of which was filed on 21 January this year.  He is unrepresented, so the drafting of his pursued orders may not have been as he might otherwise have desired.  As I understand it, he now seeks the following.  First, he wants the wife to pay $1210 for what he incurred with accountants for the rollover statement.  Secondly, he wants the wife to pay the rates, taxes and body corporate moneys owed for the Suburb D property.  Thirdly, he wants his costs incurred subsequent to October 2012, which he asserted were $42,337.69.  Fourthly, he wants the wife to pay his costs of this application, although he described it as his “appearance” before the court.  And, finally, he sought what amounts to an injunction against the wife and/or her husband from making contact with him and/or his wife.

8. In her response, which was not filed until 13 February 2014, the wife sought the following orders.  First, that the husband’s application be dismissed.  Secondly, the husband and/or his superannuation fund be responsible for the following expenses up until 10 October 2013.  That is, the rates and water rates with attendant interest and legal costs, along with the body corporate fees for the transferred property.  Thirdly, the husband and/or his superannuation fund to pay to the wife or her superannuation fund $2808.35.  Fourthly, the husband and/or his superannuation fund to pay all rent received from 28 April 2013 to 10 October 2013 in the sum of $4600.  Before dealing with both the jurisdiction and the power of the court to make any of those orders, I turn to the respective parties’ evidence.

9. By his affidavit filed on 21 January 2014, the husband set out the background leading up to the 2012 proceedings.  None of that has any relevance to this dispute which emanates from the 2013 orders.  He then said that the “basic principles of the orders” was for the property at Suburb D to be transferred to the wife, and she would pay him $55,000 into his superannuation account.  Clumsy and incorrectly described as those words may have been, I have no doubt that is what he thought was happening.  That is, he treated the property and the superannuation fund, as distinct from his member account, as his.  He then referred to the costs of the transfer.  He said it was necessary to obtain a rollover statement.  In his view, that was a cost to be borne by the wife. 

10. By November 2013, there were unpaid body corporate fees.  Indeed, solicitors for the body corporate demanded payment from the trustee of the husband’s superannuation funds.  It seems that they had entered judgment.  A transfer had by this time been effected.  In the husband’s view, he was not responsible for the outstanding debts.  If the drafting of the order means what it says, those fees are an outgoing on the property.  Curiously, if the fund was the registered owner of the property, one would have thought it was responsible, but as I have observed, the order provided for an indemnity by the wife.  By November 2013, the heat was back in the litigation with threatening correspondence between the parties, and, it seems, their extended family members. 

11. It was the husband’s evidence that he received an account from an accounting firm for work in the sum of $1210.  That related to the rollout document that was necessary for the transfer to be completed.  He then turned to his legal costs.  He said that after October 2012, he incurred over $42,000.  He said these were incurred exclusively and solely with respect to “producing the legal basis for allowing the property to be rolled out.”   In reality, these were his legal costs to enable the orders to be obtained in February 2013.  By her evidence contained in the affidavit filed on 13 February 2014, the wife said she admitted she was responsible for the costs of the transfer.  She conceded that she owes the accountant the money claimed, but it has been submitted today that she has not seen the invoice.  She wanted to ensure that the rollover was in fact effective.  I am satisfied that the document prepared by the accountant that gave rise to the fees claimed by the husband was a necessary incident of the rollout.  It was the ETP statement. 

12. The wife further complained that the husband had delayed signing the transfer, and she incurred further costs of $821.60.  The delay meant that she was, in her view, responsible for the rates and so forth only from October 2013.  The flaw in that statement is that the order provided that “contemporaneously with the transfer, or within 60 days of the date of these orders, whichever is the earlier.”  The reference to “whichever is the earlier” means that the obligation of the wife became such an obligation in about April 2013, not October 2013.  The reference in paragraph 1.2.8.3 to the word “thereafter” does not assist, because the event that was critical, was the wife’s relinquishing any interest in the husband’s fund.

13. The wife then referred to the proceedings before Bennett J that result in orders in June 2013.  Her Honour has provided reasons for orders that were made on 7 June 2013.  The orders were based on s 106A of the Act.  Her Honour ordered that the husband pay the wife’s costs of $1968 by 8 July 2013, and then dismissed the wife’s application.  The wife has now acknowledged that the husband has paid those costs.  The wife’s evidence then descended into her version about the correspondence that I earlier mentioned.  She said that there was no basis for the restraining order being made.  In fact, she denied that the correspondence was threatening.

14. The wife then said that there were arrears of rates when the transfer of the property took place.  Thus, she claimed as against the husband those sums.  The wording of the order does not assist her because its expansive nature, even if there were some argument about it, would not make the husband liable but rather, the trustee.  To endeavour to prove the claim, the wife annexed a letter from the council.  I have not taken that into account for the obvious hearsay difficulty that the wife has not overcome.  The wife then turned to the rental claim.  She said the husband and/or the husband’s fund received rental until the transfer occurred.  That seems to be disputed from the bar table by the husband today. 

15. How I could conclude that the husband received the rental I do not know.  If the trustee received it, the question is how the wife could claim it against the trustee in these proceedings.  Is there jurisdiction to deal with a “money had and received” cause of action?  Is there power to make an order against the trustee when it is not a party to the proceedings?  I think the answer to both of those questions is “No”. 

16. This is an enforcement application in part, a claim for costs in another part, and a request for an injunction in the third part.  In my view, the husband must succeed in respect of the $1210.  The transfer could not have occurred without that expense being levied.  The wife is responsible under the order and must have contemplated that when her practitioners drafted the February 2013 minutes.

17. The husband must also succeed in respect of the rates and outgoings.  Perhaps unfair and an unintended consequence, but I cannot see any way I can alter the orders.  The s 79 power was exhausted in February 2013, and this was not a machinery provision.  (see Ravasini (1983) FLC 91-312,8 Fam LR 903). The order was drafted widely. If inquiries had not been made before the orders were completed, that is something that the court cannot now rectify. The wife must therefore pay the expenses.

18. I turn, then, to the husband’s claim for costs both as to the previous and to the present proceedings.  In Cachia & Hanes (1994) 179 CLR 403, a decision of the High Court, the Court made it clear that a litigant in person may seek an order for costs under s 117(2) of the Act. But the litigant must not recover any more than the specific disbursements, being out of pocket expenses, that have been incurred and during the period of time that the litigation has been on foot. There is no evidence before me today that would enable me to make any determination about that. Accordingly, there is no evidence upon which I could make a costs order here as sought by the husband.

19. In addition, the order of Bennett J in February 2013 concluded with a dismissal of all outstanding applications. No costs application was made thereafter within the timeframe contemplated by the Family Law Rules. The wife’s claim for the arrears of rates and the delayed costs cannot succeed for the reasons I have earlier mentioned. Nor can her claim for the rental proceedings be successful on any jurisdictional basis put forward by her. No authority that I am aware of would enable me to exercise a power of repayment here. Further, as earlier I have mentioned, the trustee is not a party to these proceedings.

20. That then leaves the question of what I perceive to be an injunction sought by the husband against the wife and/or her husband.  The power to make the injunction lies in s 114 of the Act.  It provides that in proceedings of the kind referred to in paragraph (e) of the definition of “matrimonial cause” in subs 4, the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including an injunction for the personal protection of a party to the marriage. 

21. This was a vitriolic campaign by each party maintaining it was on the side of right.  That loss of objectivity rendered the correspondence unpleasant and largely unnecessary.  This should have been sorted out along legal principles lines rather than the law of the jungle.  With the conclusion of these proceedings, there does not seem to me to be any reason why there would be a need for any ongoing puerile behaviour of the nature set out in the affidavit material.  Having determined that the cause of the vitriol was the unresolved issue now having been determined by me, it would not be proper for me to make an order of the type sought. 

22. I specifically say, however, that there is probably no power to make the sort of extended orders in any event.  The husband sought in any event to involve his family members, and he may have to resort to State law if he feels threatened by the conduct about which he complains.  Accordingly, I make the following orders.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 February 2014.

Associate: 

Date:  14 March 2014