Daniels and Findlay

[2014] FamCA 163

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY [2014] FamCA 163

FAMILY LAW – ENFORCEMENT OR ORDERS – Use of the provisions in s 90AF.

Family Law Act 1975 (Cth)

APPLICANT: Mr Daniels

RESPONDENT: Ms Findlay

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 5 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Combes

SOLICITOR FOR THE APPLICANT: Parke Lawyers

THE RESPONDENT: No appearance

Orders

1. That the applicant have leave to proceed with the application in a case filed 19 February 2014 in the absence of the respondent.

2. Pursuant to s 114 of the Family Law Act 1975 (Cth), Ms Findlay be restrained from doing any act or thing which may have the effect of dissipating the entitlement of Mr Daniels and Ms Findlay to compensation pursuant to policy number … with AAMI Insurance Limited in claim number … .

3. Pursuant to s 90AF(2) of the Family Law Act 1975 (Cth), AAMI Insurance Limited pay the proceeds of the policy referred to in paragraph 2 of these orders to the trust account of Parke Lawyers, Level 1, 35 Seymour Street, Ringwood for the purposes of distribution to the parties pursuant to the orders of this Court.

4. That upon the solicitor for the husband advising the receipt of the said insurance policy proceeds, all outstanding warrants are to be returned to the Court and thereafter discharged.

5. That the wife, MS Findlay, pay the husband’s costs of these proceedings fixed in the sum of $3100 and such proceeds be paid from the trust funds when received from the AAMI Insurance Limited policy.

6. That the reasons this day be transcribed and be placed on the court file.

7. That the application in a case filed 19 February 2014 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Findlay 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 1996 of 2008

Mr Daniels

Applicant

And

Ms Findlay

Respondent

REASONS FOR JUDGMENT

1. An application in a case was filed in this proceeding on 19 February 2014 by Mr Daniels, to whom I shall refer in these reasons as “the husband”.  The respondent to the proceedings is Ms Findlay, to whom I shall refer as “the wife”.  It probably tells a lot to say that this document is number 140 in the Court file which is currently sitting somewhere in the building in, I think, four boxes.  This case has been before the Court numerous times, including to the Full Court and what was ultimately endeavoured to be achieved by Dessau J in 2010 has just met its fourth anniversary unsuccessfully resolved.

2. In 2010 Dessau J made final orders in the property dispute between the husband and the wife.  It seems, on a very simplistic view, that there were two assets.  One was a real property in Town M, the legal title owner to which was the wife alone and the other was an amount of about $253,000 in a bank account.  Looking at her Honour’s final orders in March 2010, there can be no doubt what she had in mind.  The wife was to retain the Town M property and the cash proceeds were to be divided to satisfy the husband’s entitlement.  As luck would have it, the wife decided not only not to comply with the order but she put the $253,000 in the bank beyond the jurisdiction of the Court by having it transferred to France.  The wife then endeavoured to leave Australia, presumably for the purposes of enjoying the fruits of her labour and McMillan J made an order injuncting her from leaving the country. 

3. In October 2010 the matter came back before Dessau J.  At that point in time there had been an obvious stalemate.  Her Honour made an order enforcing the orders that had been made previously in March 2010 which not only quantified the entitlement of each of the parties but amounted also to a sale of the Town M property in the wife’s name by the sheriff so that the husband could have his cash, presumably on the basis that the wife was not prepared to repatriate the $253,000 from France.  This case is dogged with bad luck because shortly thereafter, the house burnt down.

4. Fortuitously, in the orders of October 2012 made by Dessau J, her Honour permitted the husband to insure the house. Whether that was a premonition or not, I am not sure, but the husband indeed insured the house with AAMI.  It has taken a long time since then for the issue of who was entitled to the proceeds of the insurance policy to be sorted out.  The wife has been largely uncooperative in relation to the resolution of the matter, which can be seen from the various decisions that the Court has made, including the necessity to issue a warrant for the sale of the property.

5. The application that I started these reasons with has not been responded to by the wife.  I have an affidavit of service on the Court file by a legal secretary to the lawyers, Parke Lawyers in Ringwood.  That affidavit, which was filed on 27 February, said that the secretary posted the documents to an address in Suburb F and also a post office box in Town M.  Both of those addresses one could comfortably presume would bring the documents to the attention of the wife, having regard to the previous correspondence, including with the Court, and the reasons for judgment that I gave in October last year.

6. As a precaution however, the secretary also sent the documents to an email address which the wife apparently was also using.  There is no evidence before me that those documents were unclaimed.  I have therefore concluded that whether the strict rules of the Court have been complied with in relation to service, there can be little doubt that the matter has been brought to the wife’s attention and she has neither attended today, had someone attend on her behalf, nor filed any material. 

7. Attached to the affidavit in support of the application is some correspondence between the solicitor for the husband and AAMI.  It is quite clear that the wife had been communicating with AAMI and she seems not at all keen to have the money placed where the husband wants it for the purposes of division.  Having regard to the unchallenged evidence about what happened with the money being not repatriated from France, I have some concerns about what the wife is doing.  On that basis I see no reason why the husband cannot proceed with his application.

8. This is an unusual application because it seeks not only injunctive orders but orders against a third party. In this case the third party is AAMI. It is suggested that the orders should be made under s 114 of the Act, requiring the Court to direct AAMI to pay the money into a trust account. I have some disquiet about that because of the nature of the substantive issue as between the parties but I draw comfort from the fact that this is an injunction in aid of an enforcement proceeding.

9. It is argued by the husband that s 90AF provides the basis for the Court to make an order that AAMI pay the money into a trust account.  I have some disquiet about how far that power goes but to the extent that AAMI is aware of the application, they have taken no steps to participate.  I have an affidavit of service again by the same legal secretary who has indicated that she has sent the documents to AAMI at their claims department and not had any response.  One could well imagine why AAMI is disinterested in these proceedings because the husband was the contracted party and they simply want to pay out what they have now acknowledged is the liability of their company.

10. The wife, no doubt has created a problem for them because they do not know how to divide the money (the husband not being entitled to it all) and in my view, they should not be put in that position.  The amount of money in the policy clearly exceeds the husband’s entitlement, thus he wants to put the money into a trust account so that it can be divided according to the orders that her Honour made in October 2012. 

11. There is an alternate route that I had suggested but I suspect at this stage this might be the better option based on the fact that the Court does have the power in s 90AF. 

12. Section 90AF however, requires the Court to be satisfied about a number of matters.  They are the taxation effect of the order or injunction on the parties to the marriage and there is no evidence here that would enable me to draw any such conclusion.  It would be obvious that if this was simply carrying out a property order where the money is to be divided pursuant to paragraph 1 of the orders of 5 October 2012, it is hard to see any taxation effect on either the husband or the wife.  Certainly, in respect of the husband, he is not complaining about any taxation effect. 

13. The second requirement is the taxation effect of the order or injunction on the third party, in this case, AAMI . AAMI is not complaining about the fact that they may have to pay tax to pay out the money. 

14. The third is the social security effect of the order on the parties.  I am not aware of the wife’s financial circumstances but no doubt if there is $253,000 sitting in a bank account in France, one would presume that she is hardly a social security recipient. 

15. The fourth is the third party’s administrative costs in relation to the injunction.  I am satisfied that AAMI has been given notice of the proposed order and has not sought to be heard on the subject and presumably, they would be very happy to get rid of the money in their control.

16. The fifth consideration is whether the order or injunction concerns a debt of the party to the marriage.  That is not applicable in this case because it is clearly money that is held for the parties by AAMI and each party over the last four years has been trying to get their hands on it.  The wife has been anything other than a model litigant. 

17. The orders should therefore be made as sought by the applicant husband.

18. Section 117 provides that in proceedings in this Court, each party shall pay their own costs unless there are circumstances that justify a departure from that principle.  This is one of those cases where one can clearly see there is a basis to justify the departure from the principle.  Before the Court can make an order for costs however, it must consider the matters set out in s 117(2A).  I have contemplated all those, including the financial circumstances of the parties and the fact that the wife has not cooperated in respect of the completion of the matter, particularly having regard to her Honour’s order for the husband to be able to insure their property and now he is unable to get the fruits of his own efforts.

19. On that basis, it seems to me that I can take into account that the wife is not only in a strong financial position but she is also not complying with Court orders from the past.  Costs orders should be therefore made in favour of the husband.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 March 2014.

Associate: 

Date:  24 March 2014