Harris and Harris

[2010] FamCA 1090

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS [2010] FamCA 1090

FAMILY LAW – MAINTENANCE – Contravention – Costs

APPLICANT: Ms Harris

RESPONDENT: Mr Harris

FILE NUMBER: BRF 3592 of 2005

DATE DELIVERED: 19 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 19 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rafty

SOLICITOR FOR THE APPLICANT: Schultz Toomey O'Brien Lawyers

COUNSEL FOR THE RESPONDENT: Mr Stockley

SOLICITOR FOR THE RESPONDENT: Stockley Furlong

Orders

1. The payment of interim maintenance in the sum of $750.00 per week by the Respondent Husband to the Applicant Wife be made on the first Monday after the Order of 11 December 2009.

2. The Respondent Husband pay the Wife’s costs of and incidental to today’s hearing as assessed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3592 of 2005

MS HARRIS

Applicant

And

MR HARRIS

Respondent

REASONS FOR JUDGMENT

1. This is an application arising out of orders made by myself in May of this year in which inter alia I ordered that the respondent husband do pay by way of interim maintenance an amount of $750 per week.   As it appears in my reasons for judgment and in the orders, I did not particularise whether in fact the $750 should be paid up front or that it should in fact be paid in arrears.

2. I am informed from the bar table that the date of my order for the payment of the amount was on a Thursday, 11 December.I recognise that it was an oversight on my part that I did not specify whether in fact it should be paid on that day or a week later.  I have had assistance from the court record and a transcript in relation to my reasons and at paragraph 72 I was referring to a previous interim order in which it was ordered that the amount of $1000 be paid each Monday.

3. Notwithstanding that I had overlooked the time for the payment of the maintenance, it appears to me to be fair that that interim order has not been interfered with save in relation to the quantum.  Consequently, I would order that the $750 be paid on the first Monday after 11 December last year.

4. The next question which arises is that of costs.  The matter has, in effect, been totally resolved but the applicant wife is seeking an order for costs that she has expended in relation to the recovery of the amounts of maintenance which were about $32,000 or $35,000 which have not been paid.

5. Stockley, who appears on behalf of the respondent husband, quite properly points out that in fact this is really a contravention or an enforcement application and that it has failed to comply with the relevant rules.

6. I am sure that Stockley who has appeared in this Court on many occasions is only too aware of my attitude towards strict compliance with the rules.  I am of the belief, and have always been of the belief, that it is essential that the parties get some form of justice and I was assisted in coming to that conclusion by the late Hart J who was heard to say on frequent occasions, “I don’t care much about the law, but I do care a lot about justice.”

7. And notwithstanding that it may be that the applicant has presented her case not strictly in accordance with the rules, I am still of the opinion that it was for her to bring this matter to the Court’s notice; that she has done so; and it can only be said that as a direct result of that she has recovered the amounts owing to her.

8. Stockley has said everything he can in favour of the respondent husband, and says in particular, notwithstanding no order was made for the payment of mortgage instalments upon the former matrimonial home, which has subsequently been sold, the respondent husband took it upon himself to do so and as a direct result thereof put himself in a position where he was unable to comply with the order for maintenance.

9. I regret to say that I consider the order for maintenance comes before any bank requiring him to comply with the mortgage.  In those circumstances, I have no hesitation in ordering that the applicant have her costs and that such costs be paid by the respondent as assessed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 19 November 2010.

Associate:     

Date:              2 December 2010