Fowles & Fowles (No 7)
[2024] FedCFamC1F 880
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fowles & Fowles (No 7) [2024] FedCFamC1F 880
File number: MLC 8587 of 2015 Judgment of: HARTNETT J Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – PROPERTY – Enforcement Application – No need to resolve the judicial controversy – Earlier orders superseded by orders made within jurisdiction. Legislation: Family Law Act 1975 (Cth) s 149
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Division 11.2.1
Cases cited: Gilford & Cavaco (2024) FLC 94-183
Vang & Chung (No 3) [2024] FedCFamC1A 199
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 12 December 2024 Place: Melbourne Counsel for the Applicant: Mr Sheales Solicitor for the Applicant: Lander & Rogers Solicitor for the Respondent: Nicholes Family Lawyers ORDERS
MLC 8587 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FOWLES
Applicant
AND: MR FOWLES
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to rule 11.07(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and until further order:
(a)the husband MR FOWLES be and is hereby restrained by injunction from departing from the Commonwealth of Australia;
(b)the current passports of the husband MR FOWLES as issued by Australia, Country U and the United States of America remain in the Registry of the Court and continue to be held by the Registry without release to the husband;
(c)the name of the husband MR FOWLES born 1962 be placed on the Airport Watchlist and remain on the Airport Watchlist pending further order of the Court.
2.It is requested that the Australian Federal Police give effect to this order by placing the name MR FOWLES on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watchlist pending further order of the Court.
3.Otherwise the Enforcement Application filed 8 August 2024 be adjourned for hearing to a date to be fixed following the determination of the Contravention Application filed by the wife on 27 November 2024.
4.The Contravention Application filed 27 November 2024 is listed for hearing before Justice Hartnett on 9 April 2025 at 10.00am.
5.Each of the parties file and serve any affidavit material on which they seek to rely with the wife filing and serving such material at least 28 days prior to the hearing date, with the husband filing and serving any material at least 14 days prior to the hearing date, and thereafter with the wife filing and serving any further responsive material at least 7 days prior to the hearing date.
AND THE COURT NOTES THAT:
A.Pursuant to rule 11.67 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the husband may file material but is not required to do so.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
On 8 August 2024, the applicant wife (“the wife”) filed an Enforcement Application in respect of final property orders made on 6 October 2023. That filing was, of statutory necessity, in the Federal Circuit and Family Court of Australia (Division 2).
Relevantly, the respondent husband (“the husband”) had appealed the orders made by the trial judge on 6 October 2023. The Full Court dismissed that appeal on 12 July 2024.
On 15 August 2024, the husband filed a special leave application in the High Court of Australia seeking to appeal the decision of the Full Court. On 7 November 2024, the High Court of Australia refused the husband’s special leave application.
It is common ground that the husband has not complied with Order 3 amongst other orders as made by Bennett J on 6 October 2023.
On 9 August 2024, the Court heard the wife’s Enforcement Application. The matter was deemed urgent. The Court made ex parte orders. The orders made that day relevantly restrained the husband by injunction from departing the Commonwealth of Australia; required the husband to deliver up his Australia, Country U and United States of America passports to the Registry of the Court; and otherwise placed the name of the husband on the Airport Watchlist until further order.
The Enforcement Application was adjourned for further hearing to 12 September 2024 following anticipated service upon the husband of the wife’s material. There was liberty afforded to the husband to apply on short notice.
The parties sought an adjournment of the hearing of 12 September 2024. Thereafter, the husband requested a further adjournment of the hearing.
On 4 October 2024, the Court made the following orders on the Enforcement Application:
1. The Enforcement Application of the wife filed 8 August 2024 is further adjourned to 29 November 2024 at 10.00am.
2. The husband file and serve a Financial Statement within 7 days hereof.
3. Pursuant to rule 11.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the husband produce all documents required to be produced by him pursuant to the request for same as made by the wife pursuant to rule 11.11(2)(a) within 7 days hereof.
4. The wife file and serve any further application or applications on which she seeks to rely together with all material in support within 14 days hereof.
5. On or before 8 November 2024 the husband file and serve any response and/or affidavit material on which he seeks to rely.
6. On or before 22 November 2024 the wife file and serve any material in reply.
7. The indemnity costs of the wife and the costs of the husband of this day are reserved.
On 29 November 2024, the matter was again before the Court. The Court heard, on that day, submissions of counsel for the wife, and king’s counsel for the husband, in the context of the husband having filed, late on the day before, written submissions which argued for the first time that the Court did not have jurisdiction to proceed, nor to make the Orders as made on 9 August 2024, because there had not been a prior transfer of the Enforcement Application pursuant to s 149 of the Family Law Act 1975 (Cth) (“the Act”) from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).
At the time, and as conveyed to the parties, I had wrongly understood that the proceeding had earlier been transferred to the Court. It became clear that no transfer order existed.
The wife’s counsel described being ambushed by the service of submissions going to jurisdiction so late in the piece and sought an adjournment or an opportunity to place responding submissions before the Court. Accordingly, the Court made orders that:
1.The Enforcement Application of the wife filed 8 August 2024 be adjourned for hearing in chambers on the papers.
2.The wife file and serve written submissions on or before 4.00pm on 4 December 2024 in reply to those filed by the husband on 28 November 2024.
3.The husband file and serve any further written submissions on which the husband may seek to rely on or before 4.00pm on 6 December 2024.
4.Costs are reserved.
(Emphasis in original)
On 27 November 2024, a Contravention Application pursuant to Division 11.2.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) was filed by the wife in the Federal Circuit and Family Court of Australia (Division 2).
On 3 December 2024, the Contravention Application was transferred, pursuant to s 149 of the Act, from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).
On 4 December 2024, the wife filed and served written submissions in reply to those filed by the husband on 28 November 2024 and, on 6 December 2024, the husband filed and served further written submissions. These submissions went to the issue of jurisdiction in the Enforcement Application.
On 9 December 2024, the Enforcement Application was transferred pursuant to s 149 of the Act from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).
As a result of the Enforcement Application and Contravention Application proceedings now being in the Court, each pursuant to a valid transfer order, the Court is seized of jurisdiction in respect of each of these applications.
On 12 December 2024, the Contravention Application was listed for mention before me. The Enforcement Application was also listed before me. I determined that the Contravention Application in relation to which the husband is not required to file any affidavit material should proceed first in time, and otherwise proceeded to make the orders which appear at the commencement of these reasons for judgement.
The relevant orders made on 12 December 2024 supersede the earlier orders made on 9 August 2024. Such orders are made within jurisdiction and are to the same effect. It is now not necessary for me to resolve in some way the judicial controversy as raised in the parties’ submissions by reference to the Full Court decisions in Gilford & Cavaco (2024) FLC 94-183 and Vang & Chung (No 3) [2024] FedCFamC1A 199. Accordingly, no further orders will be made.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 19 December 2024
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