CONRAD & CONRAD

[2015] FamCA 414

FAMILY COURT OF AUSTRALIA

CONRAD & CONRAD [2015] FamCA 414

FAMILY LAW – PRACTICE AND PROCEDURE – Where the respondent husband makes an oral application for an adjournment of the wife’s enforcement application – where the husband also makes an application to discharge an Order of the Court – applications dismissed.  

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Conrad

FIRST RESPONDENT: Mr Conrad

SECOND RESPONDENT: Ms Stocks

FILE NUMBER: BRC 5264 of 2013

DATE DELIVERED: 1 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 1 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Harding of Counsel

SOLICITOR FOR THE APPLICANT: Simonidis Steel Lawyers

THE FIRST RESPONDENT: In person

THE SECOND RESPONDENT: No appearance

Orders

1. The first respondent husband’s oral application for an adjournment of the wife’s enforcement proceedings and his discharge application, is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conrad & Conrad and Anor 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 BRISBANE

FILE NUMBER: BRC 5264 of 2013

Ms Conrad

Applicant

And

Mr Conrad

First Respondent

And

Ms Stocks

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Listed before me in today’s Judicial Duty List is an Amended Application in a Case e-filed by the applicant wife in this matter on 25 May 2015.  In that amended application the applicant wife seeks orders that can be described as enforcement orders in respect of an order that was made on an interim basis in property adjustment proceedings that are before the Court, but that were at the time the order was made, before the Federal Circuit Court at its Gold Coast circuit.  The order sought to be enforced was made by her Honour Judge Purdon-Sully on 11 July 2013. It was an order that the respondent husband pay to the applicant wife, or cause her to be paid, the sum of $830 per week from that time.  The wife in her amended application seeks an order that the sum of $9,960, being twelve weeks of arrears of that weekly payment, be paid to her.  She also seeks a number of other procedural orders in respect to the application. 

2. Her Application in a Case, before it was amended, was actually filed on 30 April 2015 along with a supporting affidavit.  I am informed from the bar table this morning by Ms Harding of Counsel, who appears on the instructions of the wife’s solicitors, Simonidis Steel, that the affidavit of the wife that bears the filing date of 30 April 2015 was sworn on 23 April 2015 and was lodged, along with the Application in a Case that also bears that same filing date, at the “drop box” in the registry of the Family Court on the ground floor of this building on the same day the affidavit was sworn, namely 23 April 2015, pursuant to what I was informed is a trial of a drop box method of lodging documents that have been prepared by legal representatives that does not require them to wait around in the queue in the registry. 

3. I have no reason not to accept that information provided to me by Ms Harding and can only assume that the process of actually taking the documents from the drop box and having them considered by a filing clerk or registrar for listing in the Judicial Duty List before me today, took some days whereupon the date stamp of 30 April 2015 was placed on the documents.  The relevance of this matter will become clear a little later in these reasons.

4. On 26 May 2015, the husband filed a Response to an Application in a Case.  He also filed an affidavit sworn by him on 25 May 2015 and a Financial Statement sworn by him on 25 May 2015 to go with his response to the application in a case.  In his Response he seeks a number of orders.  Most significantly though in respect of the proceedings that are before me, he seeks an order that the order made on 11 July 2013 in the Federal Circuit Court that I have previously referred to, be discharged.  He also seeks a declaration that he be relieved of any payment to the applicant from 16 March 2015 and some other associated orders.

5. In his Amended Response to an application that was filed on 29 May 2015 he has added one further order that he seeks from the Court, namely he seeks an order that the wife’s application for enforcement be dismissed due to her failure to serve a copy of the Family Law Court brochure entitled “Enforcement Hearings” at least 14 days before the date fixed for the enforcement hearing. When the matter came before me at 10.00 am this morning, the husband informed the Court that he pressed his application for an order that the wife’s enforcement application be dismissed for her failure to comply with the Family Law Rules.

6. I heard the husband’s application for the dismissal of the wife’s enforcement application. There were two grounds that he advanced upon which he argued the wife’s application should be summarily dismissed. Firstly, he referred the Court to rule 20.11(3) of the Family Law Rules 2004. This particular rule sits within a division that is headed “Division 20.2.2 – Enforcement hearings”. The particular sub-paragraph that the husband took me to says this:

   (3)A payee must serve, by special service on a payer at least 14 days before an enforcement hearing:

   (a)      the documents mentioned in subrules (1) and (2); and

   (b)a brochure called Enforcement Hearings, approved by the Principal Registrar, giving information about enforcement hearings and the consequences of failing to comply with an obligation.

7. The husband also referred me to rule 20.06 which is headed “Affidavit to be filed for enforcement order” and he particularly took me to rule 20.06(d).  That particular rule says this:

   If these Rules require a person seeking an enforcement order to file an affidavit, the affidavit must:

   …

   (d)      be sworn no more than 2 days before it is filed.

8. I will just deal with that matter first.  As I have already indicated, I consider that that particular requirement in this case is readily dispensed with in a just manner today using my discretionary power to dispense with compliance with the Rules that is conferred on me by the Rules themselves in rule 1.12.  That Rule allows the Court to dispense with compliance with any of the Rules at any time after it has considered a number of things that are listed, as well as, in my view, other matters of relevance to the discretionary determination of the issue. 

9. The things that are listed in Rule 1.12(3) include the administration of justice, whether non-compliance was intentional and the effect that granting relief would have on each party and parties to other cases in the Court.  As I have said, I am satisfied having been informed by Ms Harding of Counsel for the wife that although the date stamp on the affidavit that was sworn by the wife on 23 April 2015 is 30 April 2015, that simply is because of an anomaly that was created by way of this ‘drop box’ trial in the registry and that the affidavit was sworn on the day that in fact the affidavit and original application were lodged at the Family Court for filing. The fact that the filing date stamp is not until a week after the swearing of the affidavit is no fault, I am satisfied, of the wife. When asked, the husband was not able to identify any clear prejudice that he may well suffer or that considers he has suffered as a consequence of the circumstance surrounding the date stamp being more than two days after the swearing of the affidavit. 

10. I now turn to the other argument that he raised in support of the dismissal of the application, namely that the mandatory requirement for the applicant to serve him with a brochure approved by the Principal Registrar called “Enforcement Hearing” at least 14 days before an enforcement hearing requires dismissal of the wife’s application. 

11. There is no dispute between the parties that the requirement to serve the husband with such a document at least 14 days before the enforcement hearing was not observed and not complied with.  It was simply conceded from the bar table when the issue was explored by me that it was an oversight on the part of the wife’s solicitors that led to that particular requirement not being complied with.  However, there is also no dispute that the husband was indeed served with such a document five days before the hearing, on Tuesday 26 May, three clear working days and one weekend before this hearing. 

12. Ultimately, after some discussion between bench and bar that revolved around the question that I consider is most important in the determination of the husband’s application, namely prejudice that he can point to as having been caused by the non-compliance with the mandatory requirement for the service of the document, the husband effectively dropped his application for the wife’s application to be dismissed but pressed an application for it to be adjourned instead.  He maintained that only having been served with the notice on Tuesday of last week when he was required to be served with it at least 14 days before did in fact create some prejudice for him. 

13. When asked about what that prejudice was he said a couple of things. One of them was, he said, that he was not entirely sure of whether or not his application that he put in his response for a discharge of the order was correctly filed or correctly dealt with in a procedural manner and the second was, he said, that he was not aware that there might be cross-examination today of him and of the wife by him. 

14. There is not one of the specified documents before me in evidence, but I was handed a copy of an enforcement hearing brochure by counsel for the wife. The husband had a look at it and confirmed it is the same document that he was served with last week. 

15. In that document a number of things are clear. It states that on the hearing of an application for enforcement, cross-examination of the payer might very well happen and cross-examination of the payee is indeed an entitlement or a right of the payer.  I am, in those circumstances, not persuaded that the husband’s assertion that he was not ready for cross-examination or to cross-examine himself today, is one that requires the matter to be adjourned.  He has had five days to prepare.

16. Indeed, Ms Harding took me to the form of the Application in a Case that was filed in the first instance by her client back in April which also includes reference to a requirement to attend at the court on the hearing date and potentially to answer questions and produce documents.  For over a month now the husband has at least been aware, through that document, that there was a prospect that there might be questions asked of him today and documents required to be produced. 

17. In respect of the other matter I readily assured the husband, after having discussed the matter with Ms Harding to establish her position, that technical non-compliance with the procedural requirements in respect of his application for discharge of the previous order would not be something that would cause me too much concern and certainly would not persuade me from hearing his application for a discharge of the previous order today. 

18. After hearing that application and the submissions made by the husband, Ms Harding for the wife indicated to me that her position was that the enforcement summons should be heard but that the application for a discharge by the husband should not proceed today.  I indicated that I was of the view that the just determination of this case requires a hearing of both applications simultaneously and that I was not minded to proceed with one but not the other. 

19. I offered Ms Harding an opportunity to take instructions from her instructing solicitor and client and discuss the matter in those circumstances with a view to either adjourning both of the maters to another date or proceeding with them later today.  I have been informed subsequent to that time being granted that Ms Harding’s instructions are to proceed to have both applications dealt with if that is how the Court determined. 

20. One of the things that the respondent husband referred to and said he wanted the adjournment for was that he had not really prepared the cross-examination.  I accept his assurance to the court that he is not a person with a great deal of experience with the Family Law Act or any family law but one thing is not in dispute, and that is the fact that he is a qualified lawyer, having obtained a law degree and having had his own practice as a lawyer. He also currently works as a lawyer. 

21. I am of the view that none of the matters advanced to me on behalf of the husband today justify or demand an adjournment of the proceedings to a later date than today.  I am satisfied that with a few hours of preparation the husband will be able to ready himself for (a) being cross-examined himself by Ms Harding; and (b) cross-examining his former wife in respect of the matters that he considers relevant to the determination of both proceedings.

22. In the circumstances, the husband’s application for the adjournment of the wife’s enforcement proceedings and his discharge application is not granted and I will simply stand the matter down until 2.15 pm this afternoon whereupon I will proceed with it.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 1 June 2015.

Associate:

Date:  3 June 2015