Dunstable & Idanov (No. 2)

[2021] FamCA 400

FAMILY COURT OF AUSTRALIA

Dunstable & Idanov (No. 2) [2021] FamCA 400

File number(s):

MLC 7400 of 2014

Judgment of:

MCEVOY J

Date of judgment:

7 June 2021

Catchwords:

FAMILY LAW – VARIATION OF ORDERS – where final orders were made on 17 February 2021 by Hartnett J – where the husband seeks that the enforcement of orders of the orders of 17 February 2021 be stayed – where the husband seeks alternatively that time for payment and subsequent machinery provisions in relation to the sale of a property be extended – where the wife submits that the husband should not be granted an extension in circumstances where he has various assets that could have been sold to meet various costs orders and other orders that have been made – where the wife submits Hartnett J chose the property that she ordered to be sold because she considered there to be sufficient equity in that property – where the husband did not make out that the alternate course he proposed is one that would enable the payment to the wife which was subject of an order where found that it would not be appropriate to revisit orders made by Hartnett J after a contested trial – husband’s application dismissed.

FAMILY LAW – COSTS – where the husband is ordered to pay the wife’s costs fixed in the amount of $2,500

Legislation:

Family Law Act 1975 (Cth) ss 79A

Number of paragraphs:

10

Date of hearing:

7 June 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Horsfall

Solicitor for the Applicant:

Verduci Lawyers

Solicitor for the Respondent:

Ms Wilkinson

ORDERS

MLC 7400 of 2014

BETWEEN:

MR IDANOV
Applicant

AND:

MS DUNSTABLE

Respondent

ORDER MADE BY:	MCEVOY J
DATE OF ORDER:	7 JUNE 2021

THE COURT ORDERS THAT:

1.The husband’s Application in a Case filed 20 May 2021 be dismissed.

2.The husband pay the wife’s costs fixed in the amount of $2,500.00.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dunstable & Idanov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

McEVOY J:

1. By an application in a case filed on 20 May 2021, although stamped by the court on 24 May 2021, the husband seeks, primarily, that the enforcement of orders 2 to 5 of the orders of 17 February 2021 made by Hartnett J be stayed until 30 June 2021. Alternatively, he seeks that time for payment provided for in the orders of 17 February 2021 and subsequent machinery provisions in relation to the sale of property be extended to 30 June 2021; further or alternatively, that the orders of 17 February 2021 be varied to the extent that the property at V Street, Suburb W, be sold prior to the property at T Street, Suburb M.

2. He also seeks his costs of the application. He relies, in support of his application, on an affidavit that he affirmed on 19 May 2021 in which he deposed to efforts that he has made to make a payment which Hartnett J has ordered to the wife, and to what he says is his need for an extension of time to make that payment. By a response to an application in a case filed 4 June 2021, the wife seeks the husband’s application be dismissed and that he pay her costs associated with responding to this application in an amount of $2,500.

3. The wife relies, for her part, on an affidavit of 4 June 2021. She gives evidence that, in her assessment, her Honour’s order that the T Street property be sold is the first order which has impacted the husband in a tangible, actual way.  She says that the husband should not be granted an extension in circumstances where he has various assets that could have been sold to meet various costs orders and other orders that have been made.  The wife notes, also, Hartnett J’s assessment that the father’s actual equity in the property is $120,000 and she points to the fact that there is no actual evidence that the husband’s attempts to avoid the orders made by her Honour will be successful in quantum.

4. In argument before me today, counsel for the husband has submitted that compliance with the orders made by Hartnett J on 17 February 2021 is impractical.  He says that there are other properties with equity in them and, therefore, the husband should have the opportunity to sell Suburb W and that more time is needed to do that.  It is submitted on behalf of the husband that he has moved as quickly as he can and also that he will pay the outstanding child support but would need to have a caveat released. 

5. The wife submits that Hartnett J chose the property that she ordered be sold, the T Street property, because she considered that there was sufficient equity in that property. The wife says that insofar as the husband opposes this course, it is not at all clear on the material whether there is sufficient equity in the property that he proposes be sold instead. The wife submits that none of the section 79A conditions are made out and that there is no proper grounds for the making of this application in the first place. Accordingly, the wife says that the husband’s application in case filed 20 May 2021 should be dismissed and the husband should pay the wife’s costs, fixed in the amount of $2,500.

6. In response counsel for the husband says that it would be unjust for the husband to be forced to leave his house when he asserts that he can pay what he is required to pay by other means.

7. As I have indicated, on 17 February 2021 Hartnett J made orders after a trial which was conducted over some days in November 2019 and June 2020.  It is apparent, from her Honour’s reasons, that as the wife submits her Honour has chosen the T Street property on the basis that she consider there to be equity in it.  It is not apparent to me, on the basis of the husband’s material, that the alternate course which he now proposes is one that would enable the payment of the $90,000 to the wife which is a subject of the first order of Hartnett J on 17 February 2021 to be made.

8. In these circumstances, therefore, on the material before me today I do not accept that it would be appropriate to, in effect, revisit orders made by Hartnett J after a contested trial. Accordingly I will make an order dismissing the husband’s application in a case filed 20 May 2021.

9. On the subject of costs, the wife seeks her costs, as I have said, in the amount of $2,500. This is resisted by the husband on a number of grounds, including that the usual order is that there be no order as to costs. Insofar as it might be thought that it would be appropriate for there to be an order of costs, the husband says that the financial circumstances of the parties need to be taken into account and that both parties are in a dire financial position and, in any event, that he has been proactive in bringing the application to the Court that he has brought.  It is said, on behalf of the wife, that the husband has been unsuccessful. He has not responded to correspondence and she says, on that basis, that there should be an order of costs fixed in the amount of $2,500.

10. I will make an order that the husband pay the wife’s costs fixed in the amount of $2,500. I do so having regard to a number of circumstances, including the fact that Hartnett J has made the final orders clear in their terms the father has sought, unsuccessfully, to unravel them in part.  In that regard I refer to s. 117(2)(a)(c) of the Act. Also relevant is s. 117(2)(a)(d) of the Act on the subject of whether this particular application was necessitated by the failure of a party to comply with previous orders. It is plainly the case that this has occurred in circumstances where the husband has not been able to comply with Hartnett J’s orders. And, finally, of course, as the wife submits, the husband has been wholly unsuccessful.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

Associate:

Dated:       7 June 2021