FRANCISZEK & WIKERS

[2014] FamCA 949

FAMILY COURT OF AUSTRALIA

FRANCISZEK & WIKERS [2014] FamCA 949

FAMILY LAW – ENFORCEMENT OF ORDERS – Where the applicant sought payment of money owing and interest pursuant to orders made in 2001 – Where the respondent opposes any order being made – Where the Court noted the time for the enforcement of judgments under the Queensland Limitation of Actions Act is 12 years – Where proceedings commenced in 2012 and are therefore within time – Where Court gave consideration to a number of factors as being in favour of enforcement of the judgment as well as a number of factors that fell against the enforcement in this case – Where on balance the Court was persuaded that it would be inequitable to now enforce the judgment.

Family Law Act 1975 (Cth) s 105
Limitation of Actions Act 1974 (Qld)

APPLICANT: Mr Franciszek

RESPONDENT: Ms Wikers

FILE NUMBER: TVC 555 of 2012

DATE DELIVERED: 4 November 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 1 September 2014

REPRESENTATION

THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: McNamara Lawyers

Orders

1. The husband’s Initiating Application filed 25 May 2012 is dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Franciszek & Wikers 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 TOWNSVILLE

FILE NUMBER: TVC 555 of 2012

Mr Franciszek

Applicant

And

Ms Wikers

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Initiating Application filed 25 May 2012, the husband seeks enforcement of orders made by Coleman J on 26 September 2001, by requiring the wife to pay him the sum of $5,000.00 together with interest that has accrued since 2001.  In his affidavit filed 16 November 2012, the husband clarified that the orders that he seeks are:

   (a)that the total amount owing under the order dated 26 September 2001 is declared to be $10,557.53;

   (b)that the amount of $10,557.53 be paid by the respondent to the applicant within 7 days;

   (c)that in default of payment, an enforcement warrant to issue for the seizure and sale of the Toyota [motor vehicle] registration number … owned by the respondent;

   (d)that in the alternative, the respondent attend an enforcement hearing and at that time produce copies of bank statements for the past three years of all bank accounts in her name or to which she is a signatory;

   (e)that the respondent pay the applicant’s costs of this application and enforcement of $1,778.00. 

2. The wife opposes any order being made.

FACTUAL BACKGROUND

1. The husband was born in 1952 and is presently 62 years of age.  He is a geologist by profession, but presently not in employment.  The wife was born in 1962, and is presently 51 years of age.  She is in receipt of a carer’s pension and family allowance, and has not worked for many years.  The parties married in September 1993 and separated, so it seems, on 20 October 2000.  There are two children of the relationship, G born in 1994 (presently 20 years of age) and N born in 1996 (presently 18 years of age).

2. On 9 November 2000 consent orders effecting a property settlement between the parties were made by a Registrar.  On 15 November 2000 the husband filed an Application to review.  That Application was dealt with by Coleman J on 26 September 2001 (at which hearing the wife did not appear), and resulted in an adjustment to the consent orders in the sum of $5,000.00, which sum was then ordered to be paid by the wife to the husband.  It appears as though that reflected a 60/40 division in favour of the wife.  His Honour ordered that interest would run from 7 days after the date the order was served upon her.  It appears as though the judgment was served on the wife at 11:05am on 12 October 2001.  Interest therefore commenced to run from 19 October.  The wife asserts that she has no recollection of being served with the order, but plainly she was in fact served.

3. The husband’s evidence is that after the hearing he contacted his former wife and asked for the $5,000.00.  He says that she replied that she had no money.  He further says that he has contacted her (although not specifying by what means) on several subsequent occasions, the last being on 29 November 2010, pursuing the monies, but the wife’s response remained that she had no money.

4. After 2001, the parties apparently continued to have need to recourse to the court to resolve disputes in relation to parenting matters.  There is not sufficient material before me to really reach any conclusion as to what the nature of those disputes were.  However it does appear as though relations between the parties remained poor. 

5. It also appears as though from time to time the husband may have been in arrears in, or not paid, child support.  On 16 February 2004, Faulks J ordered – seemingly without any opposition from the wife – that any arrears in child support payments attributable to G and N be discharged for the financial years ending 30 June 2004 and 30 June 2005.

6. Towards the end of 2007 the wife became a full-time carer for her mother, and in later 2009 assumed caring for her father also.  In consequence of that she received and remains in receipt of a carer’s allowance.

7. In 2009 the wife won a competition, and received a car as a prize.  That car is the Toyota which the husband seeks to have seized and sold in order to satisfy the outstanding liability to him.

8. It appears as though in 2011 the husband again fell into arrears of child support.  In October 2011, a tax refund which would otherwise have been payable to the husband in the sum of $7,300.00 was diverted instead in partial satisfaction of arrears of child support due to the wife.  The husband says he first learned of this in November 2011, and again asked the wife for $5,000.00.  This appears to be conceded by the wife[1] although she says that on that occasion she denied any liability, whereas the husband says that the wife “said the money went to pay bills.”[2]  Then on 15 February 2012 the Child Support Agency garnisheed the balance in an ANZ Bank account in the husband’s name, and paid by way of arrears of child support to the wife a further $2,720.45.  Then the husband’s further ATO tax refund of $7,707.48 was diverted to the wife on 27 April 2012, instead of being paid to the husband.  It appears as though at least as at 25 May 2012, child support was assessed against the husband at a rate of $1,006.59 per fortnight.

   [1]See para 12 of her affidavit filed 27 July 2012.

   [2]Para 13 husband’s affidavit filed 25 May 2012.

9. As I have already noted, these proceedings were filed on 25 May 2012.  They sought interim orders:

   “That an injunction order be made on the Child Support Agency preventing any funds going from [the husband] to [the wife] as child support be they from employer deductions, garnershee (sic) orders on banks, the interception of Australian Taxation Office refund amounts or derived from goods and chattels, until an arrangement is in place for [the wife] to pay the $10,342.47.”

10. The husband denies that his motivation in bringing these proceedings was influenced by child support issues.  However the timing of the last of the diversions of his tax refunds with the commencement of these proceedings certainly leaves that prospect a live one.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

1. Section 105 of the Family Law Act deals with enforcement in the following terms:

   105(1) Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.

2. There is nowhere in the Act any time limit imposed upon the commencement of enforcement proceedings. However, it is plain that the use of the word “may” in s105(1) introduces a discretion in relation to enforcement. This has been discussed in a number of cases. From those authorities the following principles can be distilled:

   ·It is only facts or circumstances arising since the date of the orders sought to be enforced that will inform the discretion under s105;

   ·The question for the court’s consideration is whether it is equitable to enforce the order;

   ·The onus upon showing that it is not equitable to enforce the order is upon the party so contending;

   ·Delay in the nature of laches is a relevant consideration, however also relevant will be the absence of any Commonwealth limitation period for enforcement, and the existence of any relevant State limitation period for enforcement of judgments.

EXERCISE OF THE DISCRETION IN THIS CASE

1. I identify the following points as being in favour of the enforcement of the judgment:

(a)      The judgment in question is unequivocal, unchallenged and unsatisfied

The judgment is simple and requires the payment of $5,000.00, and the reasons identify the prospect of interest in the event that it was not promptly paid.  No appeal was brought from the decision, although I am satisfied that it was brought to the attention of the wife.  There is no suggestion that it has been satisfied in any way, shape or form.

(b)      Wife has made no attempt at compliance

There is no evidence of any attempt by the wife, at the time that the judgment was either first brought to her attention in 2001, or subsequently, to even commence at any attempt to comply with the requirement to pay the money.  Moreover no explanation has been volunteered by her as to why she has made no attempt at compliance.  As has been seen, I have not accepted her evidence that the judgment did not come to her attention; plainly it was served upon her.

(c)      The sum in question is relatively small

For some people, $5,000.00 may not loom as a large liability.  That said, I accept that the wife’s financial circumstances are somewhat straightened, however plainly she has, in largish lump sums, had arrears of child support paid to her during a time when the judgment was being brought to her attention and remained outstanding.  There is no explanation volunteered by her as to what the lump sums of child support arrears were spent on, although there is a suggestion that she gave her children some part, or perhaps all, of the lump sum monies paid to her.

(d)      Husband has never abandoned claim

There is no evidence that the husband has ever said to the wife that he does not intend to press for the satisfaction of the judgment.  That said, the wife does point to the proceedings before Faulks J in which there was an opportunity for the husband to seek to combine the then child support issue, with enforcement of the judgment, but he did not do so.  However the wife does not say that she then interpreted that as an abandonment of the husband’s right to enforce the judgment.

(e)The wife does not assert she changed her position in reliance on the absence of enforcement

There is no evidence that the wife has acted to her detriment in any respect based upon a purported belief that the judgment would not be enforced.  Perhaps that is not surprising because she attempted to maintain her position that she was unaware of the judgment, at least until these proceedings were commenced in 2012.

(f)       The Queensland limitation period is not expired

The time for the enforcement of judgments under the Queensland Limitation of Actions Act is 12 years.  Whilst the period in question here is about 11 years, it is plain that nonetheless, were this a civil judgment in a State Court, it could still be enforced in Queensland.  Moreover, I note that other States have even longer periods of time in which judgments are able to be enforced before becoming barred: for instance in Victoria the period of time appears to be 15 years.

(g)      Wife has thumbed her nose at court orders

On one view, the wife has simply either defied the court orders, or just buried her head in the sand, but either way appears to have had no interest in complying with orders which plainly bound her.  The court needs to be vigilant to ensure that its orders are not wilfully flouted, and that they are enforced.

1. On the other hand I identify the following factors tell against the enforcement of the order in this case:

(a)      The husband has not sought enforcement for 11 years

The husband asserts that the only reason why he has not brought any enforcement proceedings for 11 years was because of his belief that there were no funds or property available in the wife’s possession or control sufficient to meet any satisfaction of the judgment.  Whilst that may be so, it does mean that there is an air of opportunism in him bringing the proceedings now.  He could have brought them far earlier, and sought to have the wife enter into some periodic arrangement or similar.  That he did not believe he would recover any sums upon an enforcement application only goes part way to an explanation of why he has not sought enforcement earlier.

(b)      Wife’s financial position changed

It appears as though the wife’s financial position is now significantly worse than it was when the judgment was first made.  Whereas arising from the consent orders, the wife had a sum of money in cash available at her disposal, now she plainly does not, at least on the evidence before me, and therefore the husband correctly identifies that the only likely means of satisfying the judgment together with interest would be to execute against the car which the wife won.  The seizing of her car is likely to have a significant impact upon her life.  I assess that impact now as likely presently being greater than the payment of $5,000.00 in 2001.

(c)      The husband’s position has improved over time

Post-separation the husband appears to have substantially rebuilt his life.  For some period of time he was employed as a geologist, however his fortunes have recently changed, and he was involved in a significant accident in 2013 which has led to mobility issues.  He appears to no longer be in employment, and is apprehensive that his ability to service a loan which is secured over his residence is imperilled, in consequence of which he may be “sold up” by the bank.  Nonetheless it appears as though the husband’s financial position has improved generally since separation, whereas the wife’s has worsened.

(d)      The husband is smarting from child support garnishees

The fact that these proceedings were commenced shortly after the latest of the garnishees of monies owing to the husband by the child support agency appears to be, notwithstanding the husband’s denial, a significant motivator in him bringing these proceedings.  Particularly in that regard, I note that the interim orders he sought by the Initiating Application included restraining the Child Support Agency from continuing to do that which it had successfully been doing in the preceding six months.  Therefore to an extent, it appears as though the husband’s motivation in bringing the enforcement proceedings is responsive to the wife, or more precisely the Child Support Agency, successfully recovering the arrears of child support in lump sums from him.

(e)      The sum in question is relatively small  

On no view is the sum in question, even with interest, life changing.  According to the calculations of Coleman J undertaken in 2001, it probably reflects about 2% of what was the net matrimonial pool at the time.  That said, I accept that to the wife $5,000.00 would be a substantial sum of money, and it may now be a substantial sum of money to the husband, given his present circumstances.

(f)       Husband’s poor history of child support payments

The evidence does not permit me to make any holistic assessment of the husband’s compliance with child support obligations, however it appears as though substantial arrears have been accumulated by him from time to time, hence the two tax refunds being diverted by the Child Support Agency, and its garnishee of his ANZ Bank account.  The wife suggests that this is a form of unclean hands, which ought be a bar to discretionary relief.  Whilst I do not think that it is a positive bar, it is a factor which is able to be taken into account by the court, and I do so.

(g)      Husband has litigated on other matters

The husband has been prepared to litigate child support and children’s matters after the judgment in 2001, and could have easily sought to combine them with enforcement proceedings.  His explanation that he did not believe that he would likely in fact recover any sums is only a partial explanation as to why he did not so seek to enforce the judgment.

(h)      The Queensland limitation period almost expired

On any view the judgment is now quite long in the tooth.  It has almost gotten to the point where, had it been a civil judgment in the State courts, it would have been irrecoverable.  Parties should not be encouraged to sit on their hands until the death knell before seeking to enforce money judgments in this court.  That said, I accept that delay, of itself and without more, would only infrequently be sufficiently disentitling to preclude recovery of sums outstanding under a judgment

CONCLUSION

1. Weighing those factors in the balance, and accepting that it is for the wife to persuade me that it would be inequitable to now enforce the judgment, I am nonetheless so satisfied.  I particularly give weight to the lapse of time since the judgment was first made, in the context particularly of other litigation between the parties in this court, and that the sum in question is relatively small, and reflected only 2% of the net matrimonial assets as at 2001.  I also give weight to the fact that the wife’s financial position has worsened over time and that on the evidence the only asset available to satisfy the judgment is her only motor vehicle.

2. In so concluding I do not overlook the fact that the wife, at least on one view, has simply ignored the orders of the court, without any apparent desire or inclination to comply with them.  However upon balance, I am nonetheless satisfied that to now, given the lapse of time, enforce such a relatively minor judgment, would be inequitable.

3. The husband’s Initiating Application filed 25 May 2012 will be dismissed.

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

Associate: 

Date: 5 November 2014