Frere & Frere

[2007] FamCA 740

FAMILY COURT OF AUSTRALIA

FRERE & FRERE [2007] FamCA 740

FAMILY LAW - ORDERS – Implementation and/or variation of consent orders for property settlement
FAMILY LAW - COSTS – Failure to establish a circumstance justifying an order per s117(2).

Family Law Act 1975 (Cth)

APPLICANT: Mr Frere

RESPONDENT: Mrs Frere

FILE NUMBER: CAF 517 of 2003

DATE DELIVERED: 16 July 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 16 July 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr C Crowley

SOLICITOR FOR THE RESPONDENT: Ms K Fox

Orders

1. That by consent orders are made in accordance with paragraph 1 of the husband’s Application in a Case filed 10 May 2007 varied as follows:

   1.Pursuant to Order 22 of the Orders dated 30 August 2005 (“the Orders”), within 60 days of the date of this Order each of the parties do all acts and things necessary to perform and complete their obligations under Order 15 of the Orders.

2. That by consent orders are made in accordance with paragraph 2 of the husband’s Application in a Case filed 10 May 2007 varied as follows:

   2.In the event of the applicant or the respondent failing to comply with the direction given in Order 1 within 60 days of the date of this Order, the Court appoint an officer of the Court or other person to do all acts and things necessary to give validity and operation to Order 15 of the Orders.

3. That leave is granted to the husband to amend his Application in a Case filed 10 May 2007 to seek an order that Order 15 made 30 August 2005 be varied on the ground of impracticability pursuant to section 79A(1)(b).

4. That the applications of the parties for an order for costs are dismissed.

5. That the husband’s Amended Application in a Case filed 10 May 2007 be stood over generally with liberty to restore upon seven (7) days’ written notice being given.

FAMILY COURT OF AUSTRALIA AT CANBERRA

File number:  CAF517 of 2003

MR FRERE

Applicant

And

MRS FRERE

Respondent

REASONS FOR JUDGMENT

1. In this matter several issues arise as a consequence of, and during the course of, submissions made in respect of the Application in a Case (“the application”) filed on behalf of the husband on 10 May 2007.

2. The orders sought by the husband in paragraphs 1 and 2 of the application, subject to variations agreed upon by the solicitors for the parties in Court, will be made by consent.

3. The further issues are as follows.

4. The husband sought leave to amend his application (“the amended application”) to seek an order that the orders for property settlement made by consent on 30 August 2005, in particular Order 15 (“Order 15”), be varied pursuant to s79A(1)(b) on the ground that it is impracticable to carry out the order.

5. The solicitor for the wife sought a dismissal of the application so amended if leave was to be granted.  No submissions were made contrary to the proposition that leave should be granted.  I will make such an order.

6. The matter that then arises is whether or not the amended application be stood over to a date to be fixed upon notice having been given or, alternatively should be dismissed in any event.

7. A brief history of the matter is as follows.

8. As previously referred to, orders for property settlement were made by consent on 30 August 2005.  Those orders were well drafted with precision and clarity.  The controversy which has arisen between the parties is in relation to the implementation of Order 15.

9. The circumstances of the controversy are that the person appointed as referee, a Mr C, is no longer sought to be continued in that role by the parties as they agree that the implementation of the process provided for in Order 15 was not correctly implemented by him.  The reason being that he apparently confused his position with that of a mediator and consequently, intentionally or otherwise, broadened the potential disputes between the parties.

10. As a result, the parties agree that the process provided for in Order 15 be implemented so far as the appointment of a new referee is concerned.

11. During the course of meeting with Mr C the parties fell in dispute, as I have already referred to.  That dispute centred not only upon the role that he should perform, but also whether or not the process they themselves had agreed upon in a detailed fashion was producing perceived or actual unfairness between them regarding the selection of items of personalty.

12. Ultimately, the parties agreed at that point to abandon the process provided for in Order 15 and instead substitute a different process.

13. The new process involved an alternate selection by each of the parties from the items of personalty which were the subject of Order 15 and otherwise more specifically described in Annexure B to the Affidavit of the husband sworn 21 December 2005.

14. That alternate process broke down as the parties entered into further conflict.

15. There then followed correspondence between the parties' solicitors where there were a number of issues ventilated.

16. Those issues included, but were not limited to, the husband having an opportunity to personally inspect the items that were the subject of the certificate of valuation and the circumstances in which that inspection should occur.  In addition, there was further correspondence as to whether or not the process which the parties agreed to in Order 15 should be reinvigorated.

17. Further proceedings took place between the parties in this Court and on 16 January 2006 orders were made by consent for the provision by the wife to the husband of photographs of the relevant items of personalty.

18. Subsequently, further correspondence ensued between the solicitors for the parties regarding the implementation of the process provided for in Order 15.

19. In that regard, it was contended on behalf of the husband, amongst other things, that the process was not one which in its design could achieve the overriding purpose, and that was to achieve equality of value of items in the hands of each of the parties.

20. The wife, through her solicitors, resisted any change to the implementation of Order 15.

21. Matters were brought to a head by the solicitors for the husband giving notice of further possible litigation.  The solicitors for the wife responded by stating that they no longer held instructions.

22. As a result, on 16 January 2007 the solicitors for the husband wrote to the wife in person and a copy of that letter is part of Exhibit 1.

23. The solicitors for the husband wrote again to the wife on 16 February 2007.  That letter, with its registered post envelope, also forms part of Exhibit 1.

24. There is no dispute that the letter was not physically received by the wife as the envelope is marked "returned to sender".  Whether that occurred by the wife deliberately not collecting the letter or was due to some other circumstance is impossible for me to conclude from the limited evidence before me.  Consequently, I do not attach any weight to the letter of 16 February 2007.

25. An application was then made by the husband, being the application before me.  The husband swore a further affidavit in support of the application.  The affidavit referred, in a summary form, to the history of the matter to which I have made reference as well as annexing copy correspondence between the solicitors for the parties.

26. That correspondence also referred inter alia to the secondary method or alternative method that the parties had commenced but discontinued when the first method prescribed in Order 15 did not proceed in accordance with their satisfaction.

27. It is clear from the correspondence sent on behalf of the wife during last year that her position unequivocally was that Order 15 should be implemented.

28. The wife swore an Affidavit on 14 June 2007.  In paragraphs 5 and 7 of that affidavit the wife's evidence was that she was willing to proceed with division of the personalty in accordance with Order 15.

29. The next matter that arose was whether or not the process for ultimate division by use of the referee as provided for in Order 15 needed to be commenced afresh due to the appointment of a new referee or, whether it continues from the uncompleted state it had reached during the time that Mr C was fulfilling what he perceived to be the role of the mediator, rather than a referee.

30. The solicitor for the husband contends that the process starts anew because a new referee is being appointed and the process previously commenced was abandoned.

31. The solicitor for the wife submits that the correct approach is that the process continues from the point at which it ceased when Mr C was the referee.

32. I have determined that the process should commence afresh.  That means, amongst other things, that once the referee has been either agreed upon between the parties or appointed in accordance with the nomination provided for in Order 15.3, then the first choice in the selection process is determined in accordance with Order 15.5, namely the flip of a coin by the referee with the consequential choices by the party having the second choice.  Thereafter choices are made as provided for in Order 15.6 and continuing to the end of the selection process as referred to in Order 15.9.

33. The reason for my decision is as follows.

34. Nowhere in the consent orders is there any recognition, let alone a process referred to, whereby a new referee continues, as it were, on a part determined basis that which had been reached by somebody who is no longer the referee.  If that was indeed in the minds of the parties, then no doubt it would be reflected either expressly or by inference from the provisions of Order 15.

35. The solicitor for the wife did not refer me to either any express provision in the various sub-paragraphs of Order 15 or, any provisions from which an inference may be properly drawn that the process contended by her should apply.  It is quite clear at this stage that there is not a referee.

36. The parties have yet to either agree upon a referee or have one appointed in accordance with Order 15.  It is that referee who fulfils the role that is otherwise provided for in Orders 15.5 to 15.9 inclusive.  The fact that a list may have been maintained from the previous abortive procedure utilised by Mr C is of no consolation or consequence so far as the discontinued process which had been undertaken by the person who the parties agree upon should no longer be the referee.  Indeed, there is some evidence before me to suggest that Mr C would not be minded to continue in that role in any event.

37. The referee is given a personal role rather than as some inanimate object in the consent orders due to the responsibilities that he or she must perform as the parties contemplated in Order 15.

38. For all of those reasons, I have determined that the reference to “the referee” and the process that should then take place commences afresh before the new referee, whoever that person may be.

39. I will make an order that the amended application made on behalf of the husband to make provision for reliance upon s79A(1)(b) be stood over generally with leave to restore.

40. I accept the submissions made on the husband’s behalf that it is possible, although not necessarily a definite consequence, that the process which will be followed in accordance with Order 15 may at one point, perhaps towards the end of it, prove to be impracticable.  That may arise if an item is selected by the party of the first choice which cannot be matched by the remaining item or items by the party of the second choice in accordance with the agreed mathematical formula provided in Order 15.6.  Should that stage be reached and in the event of the parties not reaching agreement as to how the remaining items should be dealt with, then potentially it would raise an issue for consideration in terms of impracticability under s79A(1)(b).

41. In the event of that occurring, then the issue will have to be determined on its merits.

42. I am not making any finding or providing any declaration that if and when such an issue arises it should be determined one way or the other.  That will solely depend upon the evidence that is then adduced and the consideration of it and the findings, as well as application of the relevant principles by the judicial officer who may then be required to determine that matter.

43. The last issue that arises is each party's application that the other pay his or her costs.

44. The general rule that applies under s117(1) in proceedings in the Family Court of Australia is that each party bears his or her own costs.

45. Under s117(2) the Court has a discretion to make an order for costs in the event that there is a circumstance which justifies it in doing so.

46. In this case I do not consider that either party has established a circumstance for the purpose of making an order.  Each of them was heavily in dispute through their respective solicitors of issues that arose in terms of the preferred approach, as well as alternative approaches so far as the implementation of Order 15.

47. The wife, for her part had resisted the continuation of the alternative method of choosing of items of personalty to which I have made earlier reference.  The wife, for her part, had determined through her solicitors, that the process to be adopted was that provided in Order 15.

48. The husband, for his part eventually abandoned his position whereby he sought the implementation of the alternative approach of selection and returned to implementation of Order 15.

49. In addition, shortly prior to the hearing an issue was raised in terms of s79A(1)(b) to which I have also made earlier reference.

50. As a consequence, I have concluded that each party has raised issues which have waxed and waned depending on the variation of the instructions provided to solicitors.

1. Ultimately, they did in the end reach agreement regarding the continued operation of Order 15 but still were in issue regarding leave to be granted for amendment to the husband's application, as well as interpretation of the implementation of the process provided in Order 15 in the event that there was a substituted referee.

2. Each of the parties obtained some success on one or more of the issues.  Consequently, I will not make an order for costs.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Dated:  19 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FRERE & FRERE