FARROW & FARROW

[2020] FamCA 738

FAMILY COURT OF AUSTRALIA

FARROW & FARROW [2020] FamCA 738

FAMILY LAW – PROPERTY – where two months prior another judicial officer made orders by consent for the wife to return a dog to the husband – where the wife has failed to comply with such order – order made for the wife to comply with the order made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Farrow

RESPONDENT: Ms Farrow

FILE NUMBER: BRC 5077 of 2020

DATE DELIVERED: 7 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 7 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Drysdale

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr M Alexander

SOLICITOR FOR THE RESPONDENT: Damien Greer Lawyers

Orders

1. That the wife forthwith do all acts and things necessary to immediately comply with Order 22 of Orders dated 22 June 2020 by delivering the dog, J to the husband.

2. That the wife serve her Affidavit and Affidavit of her mother Ms C filed 6 August 2020 on Counsel Mr G and former solicitor Mr B, by 4.00pm on 10 August 2020.

3. That if either or Mr G or Mr B wish to file any evidence in response, they shall do so by no later than 4.00pm on 10 September 2020.

4. That the husband’s Application in a Case filed 26 June 2020 be adjourned for Hearing before the Honourable Justice Forrest at 10.00am on 15 September 2020 in the Family Court of Australia at Brisbane.

5. That otherwise the parties’ costs of today be reserved.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5077 of 2020

Mr Farrow

Applicant

And

Ms Farrow

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The applications before me today have had a less than, in my view, meritorious journey. An application was filed in this Court by the Applicant husband, seeking substantive orders under section 79 of the Family Law Act 1975 (“the Act”) and, it seems, spouse maintenance on 8 May 2020.  Unlike some other registries in Australia, the matter was listed before a Judge of this Court in a duty list quickly.

2. Forrest J dealt with the matter on 22 June 2020.  Those Orders provided not only for, it is said, consensual arrangements relating to things such as spouse maintenance; payment of monies in the form of spouse maintenance, such as mortgage repayments and the like; use of a motor vehicle; interim costs and, then, orders and directions which were facilitative of the parties moving towards an intended private mediation (see orders 8 to 20).

3. At order 21, the orders provide that upon the husband providing a delivery address to the wife, certain personal property was to be returned to the husband.

4. Order 23 provided for certain property to be returned to the wife by the husband.

5. The matter was otherwise listed before a Registrar on 5 November 2020, apparently, I assume, because by that stage, the parties will have undertaken the mediation ordered to occur by consent under order 19.

6. As is apparent from the discussion with Counsel today – Mr Drysdale for the Applicant husband and Mr Alexander for the wife – Order 22 is a matter of great importance to the parties.  It relates to their dog named “J”. I accept that J is property within the meaning of the Act. I also accept that animals are, often, very important to parties when their relationships break down and, on the evidence currently before me, the relationship broke down in February this year.

7. Order 22 provides as follows:

   “22.That the Wife make the dog J available to the Husband or his nominee at 12.00 pm on Wednesday, 24 June 2020 at the Suburb D property, and that in the event the Husband intends to travel more than 200 km from Brisbane that he present J for an examination before a veterinary surgeon so as to assess J's fitness to undertake the trip and to provide any report on such fitness to the Wife upon receipt.”

8. Now, although I have made a direction that the applications be otherwise adjourned for hearing before Forrest J, I indicated that I would hear submissions specifically upon order 22.  I have heard those submissions.

9. The husband, in his Affidavit filed on 26 June 2020, gives evidence about his inability to collect J, after giving notice of such to the wife’s solicitors or the wife (see paragraph 24), at 4.00pm on 24 June 2020, and the response received at 4.12pm on 24 June 2020 via the wife’s solicitors (set out at paragraph 18) that:

   "We are instructed that the dog J will not be made available to your client this afternoon. He is currently with the vet receiving treatment….we will be in contact with you in the morning regarding this issue.”

10. I accept that there are other parts of “F-6” that refers to this issue but I will do the shorthand version for obvious reasons.  In the wife’s initial Affidavit filed on 4 August 2020, after the Application in a Case for enforcement was filed on behalf of the husband at 2.16pm on 26 June 2020 (namely, over a week later), the wife, effectively, because of a concern which had some basis in view of the Application in a Case, indicated she was not responding to the Application and the evidence because:

    “8.I have been advised by my lawyers that I have a right of silence if Mr Farrow has filed or intends to file an Application for Contempt against me.  They have also advised me that I should exercise that right until Mr Farrow advises of his intention in this regard.

    9.I therefore, reserve my right to reply to Mr Farrow’s Application in a Case filed 26 June, 2020, once he makes his intention known regarding any proposed contempt application.”

11. It might be a matter for another day to observe all the communications about the suggestion that a contempt application was to be filed and when it became apparent that it was not going to be filed.  The evidence is no such contempt application has been filed or is now intended.

12. Lawyers should be very careful in correspondence using the word “contempt application”.  It could be interpreted, when all the facts are known, as a form of intimidation.  It might be nothing more than loose language.  However, when it seems the wife was satisfied that she would not need to exercise her “right of silence”, she caused to file two Affidavits at 1.42pm yesterday in which, inter alia, she raises serious allegations about the conduct of Mr B of F Lawyers as to how her consent - if, in fact, that is what it was - was procured and how it may have been, then, transmitted to Counsel appearing by telephone before Forrest J on 22 June 2020.

13. It is because of the seriousness of the allegations, on oath, by Ms Farrow, challenging the integrity and the conduct, at least of Mr B and, perhaps, although not directly identified, of Mr G, who appeared before his Honour, that I took the view that the proceedings needed to be listed before Forrest J.  I have been told by Mr Drysdale that that was the application made when the Application in a Case was filed, and I do not know why someone in the Registry thought that was not appropriate, but that is immaterial to me today.  That is where it is going, for the reasons I have indicated.

14. I will be making directions that require the wife to provide a copy of the Affidavit of herself and her mother to both Mr B and to Mr G by 4.00pm on Monday.  They ought to have the opportunity, to the extent that they seek to do so, to put evidence before the Court, available for Forrest J on the next occasion.

15. J remains in the care of Ms Farrow.  Despite an inference, at least, in the communication from her solicitors already identified in the letter, that there was an inability to comply with the Order because the dog was at the vet - and I note that I have no probative evidence from any veterinary surgeon before me, at this stage, about the health dog’s - and I am not relying on any hearsay – the Applicant husband seeks the enforcement of the Order.

16. It is apparent, in my view - and I disagree with Mr Alexander to this extent - absolutely apparent from paragraph 2 of the Application in a Case, where the husband seeks an order by way of enforcement, the wife having failed to comply with the earlier Order for reasons that she now asserts, that:

    “2.That the Wife forthwith do all acts and things necessary to immediately comply with Order 22 of Orders made 22 June 2020 by delivering the dog, J to the Husband.”

17. In my view, the jurisdiction of the Court has been enlivened in respect to enforcement. Enforcement is a discretionary power shaped by Section 105 of the Family Law Act1975.  There is no evidence before me that could, it seems to me, help me to understand whether the dog is at risk in the husband’s care when he was - or not at risk in the wife’s care.  I can infer that up until February and separation, the dog was in the joint care of the parties, to some degree.

18. Of course, someone reading these Reasons, at some future time, might wonder why so much attention is given to this part of the Order.  It might be that the parties think that the dog is the most important part of their marital relationship.  I have no doubt they may both be emotionally connected to the dog.  Whilst the wife, yesterday, challenges the Orders, in my view in my exercise of discretion, that challenge, and in view of the wife’s conduct as identified by her lawyers, do not, as a matter of law, prevent the Court from enforcing the Order made by Forrest J in relation to J.

19. In my view, it is appropriate and just that I make order 2 as per the husband’s Application in the Case.  I do so.  I otherwise reserve the parties’ costs of today’s event.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 7 August 2020.

Associate: 

Date:  4 September 2020