Ferguson and Ferguson

[2008] FamCA 645

FAMILY COURT OF AUSTRALIA

FERGUSON & FERGUSON [2008] FamCA 645

FAMILY LAW – ORDERS – Alteration of orders – Application refused

Family Law Act 1975 (Cth)

APPLICANT: Mr Ferguson

RESPONDENT: Ms Ferguson

FILE NUMBER: MLF 955 of 2006

DATE DELIVERED: 2 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 July 2008

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr R. McIvor

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the application in a case filed by the husband on 25 June 2008 is dismissed.

2. That the response of the wife to the husband’s application filed 2 July 2008 is dismissed.

3. That my reasons for judgment this day be transcribed and be placed upon the court file.

IT IS NOTED that publication of this judgment under the pseudonym Ferguson & Ferguson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 955 of 2006

MR FERGUSON

Applicant

And

MS FERGUSON

Respondent

REASONS FOR JUDGMENT

1. This is an application in the duty list. Mr Ferguson represents himself, and I will refer to him without any disrespect as the husband. Ms Ferguson is represented by Mr McIvor of counsel. I will refer to her as the wife. Mr and Mrs Ferguson obviously spent a long time getting to a concluded property settlement, because the file indicates that the matter was complicated. However, having said that, on 19 May 2008 Dessau J made final orders between the parties under s 79 of the Family Law Act 1975 (Cth) (“the Act”).

2. Those orders having been made, there are only two circumstances in my view where they can be altered. One is if the Court was satisfied the provisions of s 79A applied, and in this case there is no such application. The second is that the particular provisions of the orders themselves can be read as machinery provisions rather than substantive orders. The orders were drafted by the parties themselves. I have handed to the husband a document that is sitting on the court file from which the typed orders were prepared. If there are problems in the drafting, notwithstanding the Court made the orders, it is hard for the Court to take any responsibility for the way in which they have been structured.

3. There was certainly a complaint by the husband which I suspect has got some merit, that notwithstanding Dessau J ordered that the minutes be engrossed within seven days, it was not done.  Whether or not that contributed to the dilemma, I do not really think matters because I have been able with some discussion between the parties to discern exactly what the applications before me are today.  Suffice to say, the orders of 19 May 2008 provided for the wife to pay to the husband a sum of $75,000. 

4. That sum was to be paid in three instalments, $15,000 within seven days, $35,000 within 21 days, and $25,000 within 45 days.  Each of those periods of time is to be calculated from the making of the order.  As such the dates upon which those payments were to be made could not be argued about.  The second order provided that to facilitate the first of the three payments the husband was to do certain things.  The parties seemed to have a huge dispute about whether or not that order has been complied with. 

5. In my view it matters little because the $15,000 was paid.  The complaint by the husband which I have some sympathy for is that the second payment of $35,000 was to be paid within 21 days.  It was not.  It was paid well after the due date.  The reasons for that again do not matter.  The fact of life is that the payment was not made on time.  When it was paid, the husband had already issued the application before the Court.  That application seeks an order in the following terms:

   That [the wife] pay $60,000 as per Family Law Court orders 19/5/2008 MLF 955 of 2006 to [the husband] by Friday 27 June 2008 urgently.

6. That application was misconceived.  Clearly at the time that the application was filed, the wife was in default in respect of the second payment, however, by the time the case got to court she had rectified that position.  The rectification means that the only application that the husband can make is an order for costs thrown away by having to issue the application. 

7. Ironically enough, the parties who drew the orders did not make a provision which I would have expected, that in default of any one payment the whole lot would become due and payable.  That is clearly not in the order.  On that basis then, the third payment of $25,000 is not yet due.  That being the case the order that I have just referred to that the husband seeks cannot be made.

8. The application goes on to seek costs.  The husbands really describes the costs and the money he has incurred by way of penalties and interest and rent he has lost rather than costs in the legal sense of the word.  I have expressed the view that I do not have the compensatory jurisdiction to make an order along the lines that he is seeking and certainly not on the evidence that I have before me. 

9. The third order seeks that the wife pay $10,000 in default interest payments relating to Shop 3 in B.  I do not have the power to make that order having regard to the fact that it would be tantamount to a property order.  The parties did not include that in the orders that they had agreed to and had made by the Court on 19 May.  As such there is no application before me that I could make any orders on. 

10. In terms of the second payment, Mr McIvor concedes the payment was late.  He points to an annexure to an affidavit by his instructor Mr Barrett.  It is an email dated 26 June 2008.  It sets out a series of things in relation to transfer documents and I shall refer to those in a moment.  Fundamentally however, what Mr Barrett said was that the orders that the husband was seeking had no substance.  It goes on to say that if the application was not withdrawn, then it would be necessary for him to appear at court and costs would be sought.

11. Importantly what the letter says is that the balance of the payment due to the husband, and that is the third payment to which I have referred "will be paid on the due date as per the court orders."  On the basis of the application before me there is no order I could make and accordingly I dismiss the husband’s application. 

12. To complicate matters a little bit this morning, Mr McIvor on behalf of the wife filed a response which in turn sought orders.  Before I turn to those, Mr McIvor also seeks costs for having to come here today as a result of what I have just indicated was his instructor's position.  I would have thought that there is every basis to make an order for costs normally under those circumstances, however, having regard to the fact that the second payment was late and there are other issues involved in this case, I would have thought that that letter does not assist in respect of an application for costs.

13. This morning with my leave, Mr McIvor filed a response to the application.  Apart from the fact that it seeks an order that the husband's application be dismissed, it goes on to say that paragraph 1(c) of the orders made on 19 May 2008 should be varied.  Those are not the words in the application.  The exact words are "that the wife be excused from complying with paragraph 1(c) of the orders until such time as the husband does certain things".

14. It is quite clear from looking at the order that paragraph 1(c) is an order that is not simply a machinery provision. It is a substantive order. On that basis therefore to vary it, they would have to either have the opportunity under s 79A, and the circumstance under which that could apply would be if it was impracticable for the order to be carried out, or that in some way or other it could be described as a machinery provision.

15. The dilemma arises because the application by the wife really has nothing to do with that.  What it concerns is paragraph 4 of Dessau J's orders.  That order, again drawn by the parties, said that the wife within 14 days was to do whatever was necessary to transfer to the husband a shop in B.  In addition the order goes on to say that the husband was to indemnify the wife against all payments under a numbered mortgage on that property, and to sign all documents to refinance the B shop mortgage into the husband’s name alone. 

16. Again, from the drafting it is not an order that is connected to paragraph 1 - the orders for the payment of money.  The order does say that the wife is to do things within 14 days.  The wife has not done that.  That is because of the fact that the husband has not provided the transfer to her.  I do not stay here to work out whether in fact the normal conveyancing practise applies or whether it was the obligation of the wife to provide the transfer, but it seems to me that a normal conveyancing transaction should have been followed and therefore the obligation is on the husband to provide the transfer document.

17. That does not seem to be the problem here.  The problem is that the wife asserts that she is at risk if the husband does not comply with the indemnity.  The husband said to me this morning that if these orders were not carried out he would be bankrupt.  That gave me no confidence that the indemnity in fact set out in paragraph 4(b) would be carried out.  However, there is no information before me that I could say that the wife has been served with any threatening letter by the bank, nor that there is a risk that she will have to pay money to a third party because the husband does not honour his indemnification of her.  In fact, the bank which has received a copy of this order quite clearly says they are not a party to the order, nor to the proceedings and are not interested in being involved.  As such, the very problem of an indemnity order comes to the surface.

18. As I pointed out I do not have any power under s 90AF now because of the fact that that can only be used in proceedings under s 79. It seems therefore that what I am being asked to do by the wife is to vary in some way an order that was made under s 79. Having regard to the fact that the order stipulates not only the sum but the date upon which it is due, I do not see that as a machinery order and I do not have power to amend it.

19. There may be some other courses of action open to the wife to seek injunctions and or some form of enforcement orders against the husband if the indemnity was not carried out, but until such time as there was a basis for those orders, it would not be proper for me to make an order.  Accordingly, on the basis of what I have just said, the wife's application cannot succeed and accordingly I dismiss it.

20. Each party then seeks costs.  As I have said, the husband seeks really a compensation for matters past.  He has not put before me anything that would give rise to an order for costs for the reasons that I shall set out in a moment.  Mr McIvor points to the fact that the husband was put on notice that at a point in time when the default had occurred and therefore there was some justification for the application being issued.  However, the husband faced today for the first time, an argument in relation to the mortgage that I have just referred, so both parties were really before the court today seeking orders that in my view were unrealistic. 

21. In any event, s 117 of the Act sets out that each party should pay their own costs. The one exception to that rule is that if the Court is satisfied that there are circumstances justifying the making of an order, then the court can depart from the principle rule, but in doing so it must take into account the matters set out in s 117(2A).

22. In this case I see no justification for the departure from the rule, and accordingly I decline to make any orders for costs.

I certify that the preceding Twenty Two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 July 2008