George and George

[2018] FamCA 451

FAMILY COURT OF AUSTRALIA

GEORGE & GEORGE [2018] FamCA 451

FAMILY LAW – PROPERTY – Enforcement – where the husband has not complied with property orders of this Court – Where the wife seeks funds in trust be held against future non-compliance with orders made by this court – Costs – Where the wife has been wholly successful in her application.

Family Law Act 1975 (Cth)

APPLICANT: Ms George

RESPONDENT: Mr George

FILE NUMBER: SYC 7612 of 2011

DATE DELIVERED: 20 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 16 March 2018

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Ms Mastrofillipo

SOLICITOR FOR THE APPLICANT: York Law

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

1. By way of security for the husband’s obligation to meet the payments required by order 18 of the orders made 27 January 2015, the husband is to provide the whole of the fund (approximately $54,614) held by the partners of York Law on his behalf, to be held by the wife upon trust to fulfil the husband’s obligations under the said order, should he fail to comply with any proper demand made by the wife for contribution as required by the said order.

2. As trustee of the fund specified in Order one hereof, the wife is to create a specific interest bearing bank account in the name of the wife into which the trust fund is to be deposited. The wife is not to deposit or withdraw funds from that account other than as provided for in these orders.

3. In the event of the husband failing to pay to the wife the sum sought by her as contribution to the expenses identified in order 18 of 27 January 2015 within 14 days of her written request to him (email communication to the husband’s last known email address is sufficient), then the wife is to draw the claimed amount form the trust fund.

4. By 14 July of each year, the wife is to provide to the husband a copy of the bank statements for the trust account created by these orders for the financial year just concluded.

5. Within 14 days of the child E, born … 2004, ceasing to be a pupil at Q School, the wife is to notify the husband that E has ceased to attend the school and provide him with a copy  bank statement showing the balance of the Trust Account then standing. The wife is to then, upon the husband providing her with details of a bank account into which he requires the fund to be deposited, forthwith transfer those funds to that account.

6. The husband’s Amended Application in a Case and Amended Response to Application in a Case, both filed 30 November 2017, are dismissed

7. The husband is to pay the wife’s legal costs incurred by her for the Initiating Application filed 21 March 2017 in the Federal Circuit Court and transferred to this court on 7 September 2017, as and from the date of transfer, together with the costs incurred by the wife in relation to the husband’s Amended Application in a Case filed 30 November 2017and Amended Response to Application in a Case filed 30 November 2017. Such costs are assessed by the Court at $10,000.

8. The husband has liberty to apply to set aside or vary any of the orders made herein within 14 days hereof, at his own risk as to costs. In the event that no such application is made, these orders will operate as final orders as and from the expiration of that 14 day period.

9. Order 1 is to operate as authority by the husband to the partners of York Law to pay the funds held by them in the controlled monies account created to hold the husband’s portion of funds payable to him arising from the sale of the property at B Street, Suburb M to a trust account created by the wife.

10. It is to be noted that the costs order made herein relates to the period only from 7 September 2017 and that costs incurred prior to that date are a matter for the Federal Circuit Court.

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 George & George 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 SYDNEY

FILE NUMBER: SYC 7612/2011

Ms George

Applicant

And

Mr George

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for Final Orders filed by the wife Ms George in the Federal Circuit Court on 21 March 2017. That proceeding was transferred to the Family Court of Australia on 7 September 2017. By that application, the wife seeks an order that the husband provide security for his obligation to meet a continuing payment specified in order 18 made by Justice Watts on 27 January 2015. The wife seeks that the fund of approximately $54,614 which currently stands to the credit of a controlled monies account held by the partners of York Law, being funds payable to the husband following the sale of a property at Suburb M , also the subject of the court orders made 27 January 2015, be created as the secured fund for the purpose of the order sought by her.

2. The husband Mr George filed two applications which are before the court today. Those applications are identified as Amended Response to an Application in a Case filed by the husband on 30 November 2017 and an Amended Application in a Case filed by the husband also on 30 November 2017. The content of those applications I will refer to later in these reasons. The wife filed a Response to both of those applications on 13 December 2017. She seeks each be summarily dismissed. Apart from the dismissal of the husband’s applications the wife seeks only a cost order in relation to same.

3. The matter was listed for hearing this day by the notice given to each party from the Sydney Case Coordinators on 7 March 2018. That notice informed the parties “The outstanding interim applications to be determined are those filed by each of the parties on 7 September 2017.” The application moved upon by the wife is for final orders and not interim applications. However, after the matter was transferred to this court on 7 September 2017 it came before Registrar Aitkin on 1 November 2017. On that day the husband appeared in person and the wife was represented by her solicitor. On that day the Registrar made the following orders:

   The respondent is to file and serve any Amended Response, Amended Application in a Case and an affidavit in support within 28 days of today.

   The applicant is to file and serve any Amended Response to the Amended Application in a Case and affidavit in support within a further 14 days.

   The wife’s Initiating Application and the husband’s Amended Application in a Case are placed in the short matters pool to be allocated a hearing date of 1 day before a judge and the listing clerk is to provide not less than 48 hours notice of that date.

4. As stated earlier, the listing clerk notified each party of today’s listing on 7 March 2018. Thus each was provided with 6 clear working days’ notice of the listing. It is clear from the orders of the registrar made 1 November 2017 that what was intended was that the wife’s application for final orders was to be listed for hearing given that Monahan J had made interim orders when the matter was before him on 7 September 2017, the same day he transferred the matter to the Family Court of Australia.

5. There is no attendance by the husband at Court today. The wife has appeared with her solicitor and presses for a determination of her outstanding application for final orders and her response to the husband’s applications also listed today for hearing.

6. With the above matters in mind I propose to proceed to determine the wife’s Application for Final Orders and her response to the husband’s applications in the absence of the husband. I will make orders and I will provide the husband with an opportunity to apply to vary or set aside those orders, at his risk as to costs, provided he makes any such application within 14 days or the date of orders made today.

7. In support of her case the wife tendered the following documents

   ·Her case outline document which she provided to the husband by email.

   ·Copy of an email from the husband to the wife dated 29 November 2017 showing his email address as ….

   ·Copy email to the husband from the wife’s solicitors dated 15 March 2018 attaching the wife’s case outline document.

   ·Copy of the costs disclosure notice dated 16 March 2018 provided by the wife’s solicitors to the wife together with a copy of her costs agreement with her solicitors.

   ·Copy bank statement showing the balances of the two accounts holding funds payable to the husband held by York Lawyers in a controlled money account. The first account holding $15,525.56 and the second $39,089.17. Total funds as at 16 March 2018 is $54,614.73.

8. The wife relied upon the following evidence:

   ·Her affidavit sworn 17 March 2017 paragraphs: 12 to 18, 37 to 40, 41 to 48, 61 to 78.

   ·Her affidavit sworn 28 August 2017 paragraph 14 to 23.

9. The wife’s solicitor informed the Court that the husband had not contributed to the expenses for E (as specified in order 18 of 27 January 2015) for the whole of the 2018 school year.  Although she has not filed an update affidavit which specifies that the husband has paid none of the school expenses for E for the 2018 year there appears no issue about that matter given the orders sought by the husband in his Response to an Application in a Case filed 30 November 2017. His document, so identified, makes clear that he considers order 18 to be unjust given what he says the wife has done in not enrolling E in a public school where the fees would be considerably less (as contended by the husband) than E attending Q School, that specifically named in the court order made 27 January 2017.

10.The wife’s evidence contained in her affidavit of 17 March 2017 (in the paragraphs specifically relied upon) establishes the following of relevance to the application now under consideration:

a.The wife filed an application on 17 June 2016 seeking to recover $16,733.74 from the husband as funds payable to her under order 18 of the orders made 27 January 2017. On 27 July 2016 Watts J made declared the wife was owed the sum of $16,733.74 and ordered it be paid to the wife upon settlement of the sale of the B Street, Suburb M property. Following a further application filed by the wife on 3 August 2016 the court made a declaration on 6 October 2016 that the husband owed the wife the sum of $30,116.99 by way of non-periodic child support. The wife did recover that sum from the husband’s share of the proceeds of the sale of the B Street, Suburb M property.

b.Following the settlement of the sale of the B Street, Suburb M property funds were paid into a controlled money account held by the wife’s lawyers. On 14 October 2016 the wife’s solicitor was served with a Notice from the Child Support Agency titled “Notice to Pay Money Directly to the Child Support Registrar pursuant to s.72”. The notice sought $25,816.83 for child support arrears. That sum of the arrears was paid to the Child Support Agency from the husband’s share of the sale proceeds of the B Street, Suburb M property.

11.The affidavit sets out the extraordinary lengths the wife went to in order to provide the husband with his share of the sale proceeds of the B Street, Suburb M property. She was unsuccessful and so the funds now repose in the controlled money account held by her solicitors and in respect of which she now seeks an order.

12.In her affidavit of 28 August 2017 the wife relies upon paragraphs 14 to 23.

13.That affidavit explains how the funds now held in an account titled “York Law Controlled Monies Account itf Ms George”.

14.I am satisfied that the husband has failed to comply with order 18 of the orders made 27 January 2015 as alleged by the wife. Further I am satisfied that the husband has failed to pay child support at least at the time of the settlement of the sale of the B Street, Suburb M  property which failure caused the Child Support Agency to act in the manner set out herein and issue a Notice under s72 of the relevant legislation. The application in a Case and the Response to an application in a case, both filed by the husband on 30 November 2017 each make clear that the husband regards the order 18 of 27 January 2015 as unjust prompted by the failure of the wife to enrol the child E in a public school to which he may have gained entry had the wife permitted him to sit for an entrance exam.

15.The court record illustrates the number of applications which the wife has had to file and prosecute to have the husband comply with court orders. Such record together with the facts set out in the wife’s affidavit, as above specified, speaks to a course of action by the husband to avoid payment of the school expenses specified in order 18 of 27 January 2015. As such it seems probable that unless the wife can have the husband provide readily accessible security for his obligation to make the subject payments she will be forced to pursue him at considerable cost through the courts.

16.Although the Child Support Registrar collects the child support payments made as periodic payments pursuant to the Child Support Assessment such collection is not undertaken in relation to the payments required by order 18. The cost of recovering those expenses rests with the wife.

17.E is now in year 8 at school and is 13 years of age. The orders now in place are expected to require payment by the husband until the end of 2022. The cost of schooling presently for E at Q School is said by the wife to be almost $11,200 per year. The amount in the controlled monies account with York Lawyers is $54,614. The husband is required to pay 75 per cent of the school fees and other specified expenses for the children (now relevantly only E). It may be that the sum of $54,614 will be sufficient to meet the husband’s obligation under order 18 if the husband fails to make any payments during the remainder of E’s school life. Should there be any surplus then that should go to the husband.

18.I am satisfied the wife has made her case and I will make orders accordingly.

19.The wife seeks an order for the payment of her costs incurred in this court.

20.Section 117 of the Family Law Act requires the court consider the provisions of that section. Section 117(1) provides that subject to other provisions in the section each party should pay their own costs. The court has power to make a costs order if the court is of the opinion that there are circumstances which justify it so doing. The court is required to have regard to the provisions of sub-section 117(2A) when considering whether to make a costs order.

21.In this matter there is no appearance by the husband today. The wife has been wholly successful in her application for enforcement of order 18 of the orders of 27 January 2015. The documents filed by the husband for this hearing show that the husband does not regard the order sought to be enforced by the wife as just.  Further evidence of the wife illustrates that the husband has for some time failed to meet his obligations under the orders of 27 January 2015.

22.The financial circumstances of the parties is not specifically before the court otherwise than illustrated by the evidence relied upon by the wife.

23.Having regard to those matters I conclude that the husband should pay the wife’s costs of the proceeding inn this Court.

24.The wife tendered a copy of the tax invoices received by her from her solicitors for work done since the proceeding was transferred to this Court on 7 September 2017.  The costs invoices issued to the wife since 7 September 2017 amount to $13,737.

25.I have reviewed the itemised tax invoices which constitute exhibit M6. I have reviewed the affidavit evidence and the other documents filed by the wife for this hearing. I have read the cost agreement which the wife has entered into with her solicitors. I am acquainted with the process of assessment of legal costs undertaken by an assessor if so appointed.  I would not be prepared in this case to make an indemnity costs order, however, it must be said that this case has aspects to it which might move a judge to make such an order. I have decided, without objection from the wife, to assess the costs and fix an amount I consider ought be paid by the husband. I consider to make an order which requires the parties to either agree upon a figure for costs or have the bill of costs assessed will only lead to the wife having to incur further costs and lead to further delay and conflict between the parties.

26.There are aspects of the affidavits filed by the wife which I regard as insufficiently relevant to the application under consideration to have warranted inclusion. There are some costs which clearly fall into the category of solicitor and client costs. I consider that an appropriate amount of costs to be paid by the husband to the wife for legal work performed on her behalf by York Law is $10,000. I will so order.

27.The notice sent to the husband by the court informed him that interim applications would be dealt with by the Court today. That was not correct, as the wife at all times sought to proceed with her application for final orders. So much is, I am sure, discernible from the orders made by the Registrar setting the matter down for hearing. However, as a matter of caution I propose to make the orders providing for security to be provided by the husband for the obligation to meet the expenses required to be paid by him under order 18 of 27 January 2015 and give the husband 14 days only to apply to set those orders aside at his risk as to costs. Should he fail to do so the orders will operate as final orders as and from the expiration of the 14 day period.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 19 March 2018.

Associate: 

Date:  20 March 2018

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