HAWTHORN and HAWTHORN

[2020] FCWA 56

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HAWTHORN and HAWTHORN [2020] FCWA 56

CORAM: SUTHERLAND CJ

HEARD: 21 FEBRUARY 2020

DELIVERED : 7 APRIL 2020

FILE NO/S: PTW 6468 of 2008

BETWEEN: MS HAWTHORN

Applicant

AND

MR HAWTHORN

Respondent

Catchwords:

FINANCIAL ENFORCEMENT - Whether court should exercise its discretion not to enforce, either in whole or in part - Whether court has power to enforce a costs order made in Restraining Order proceedings by another court - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Chakich
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Collins & Collins (1985) FLC 91-603

Deputy Child Support Registrar v Harrison (1995) 128 FLR 349

Fitzgerald v Fish (2005) 33 Fam LR 123

Hawthorn and Hawthorn [2018] FCWA 141

I and I (No 2) (1995) FLC 92-625

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawthorn and Hawthorn has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The enforcement proceedings between [Ms Hawthorn] (“the wife”) and [Mr Hawthorn] (“the husband”) have been long and protracted. This decision assumes that the reader has also read my decisions handed down on 20 October 2017[1] and 2 August 2018,[2] which set out the background facts in this matter, including the circumstances that led to the husband receiving an insurance payout of $110,000 in relation to a property previously owned by him in [Street A, Suburb A] (“[the Suburb A property]”). That property was severely damaged by fire [in 2018], shortly after orders were made by me permitting the wife to take possession of and sell it, in aid of enforcement.

[1] That judgment was delivered at a time when I was a Magistrate. Whilst the judgment was not published nor allocated a judgment number, it is available on the court file.

[2] Hawthorn and Hawthorn [2018] FCWA 141.

2In this latest round of the enforcement proceedings,[3] the wife seeks that from the insurance proceeds, she receive the sum of $100,815.90[4] as and by way of enforcement of the final payments still due and owing to her by the husband as follows:

1.The balance of the funds due and owing to her arising from the final property settlement orders made by this Court by consent on 28 October 2010 (“the 2010 final orders”) in the amount of $24,250;

2.Interest on the amounts owing to her in relation to the 2010 final orders from time to time, in the total amount of $18,461;

3.The sum of $3,604.90 in reimbursement of various expenses that the husband was obliged to pay pursuant to the 2010 final orders;

4.The total amount of $51,500 in relation to two costs orders made in her favour by me on 31 October 2017 and 2 August 2018 (“the two costs orders”); and

5.The amount of $3,000 in relation to a costs order made in her favour by the Magistrates Court of Western Australia in or about 2010 relating to restraining order proceedings (“the VRO costs order”).

[3] Refer to the wife’s Form 2 Application filed 18 October 2019, and the husband’s Form 2A Responses filed 10 January 2020 and 17 February 2020. The majority of the orders sought by the husband were legally incompetent. Nevertheless, it was clear from the husband’s affidavits and his submissions that he opposed the orders sought by the wife.

[4] The amount sought by the wife in her Form 2 Application filed 18 October 2019 was $100,051. However, during the hearing on 21 February 2020 and in the course of oral submissions, counsel for the wife provided an updated total amount and breakdown. The updated total amount was $100,814.90. I am satisfied that the $1.00 difference was a simple arithmetical error.

3The wife’s counsel appropriately conceded that this Court may not be able to enforce the VRO costs order. If so, then the wife conceded her claim should be reduced to the amount of $97,815.90. Having regard to s 105(2) of the Family Law Act 1975 (Cth) and the Full Court’s decision in Deputy Child Support Registrar v Harrison,[5] I am not persuaded this Court has the power to register a costs order made by the Magistrates Court of Western Australia in relation to restraining order proceedings, so as to enable this Court to then enforce that order. In the event that I am wrong, then I am also not persuaded that the VRO costs order was in fact properly registered in this Court, noting the specific requirements of Regulation 17 of the Family Law Regulations 1984 (Cth).

[5] Deputy Child Support Registrar v Harrison (1995) 128 FLR 349, 361 and 362

4The husband sought that the wife’s enforcement application be dismissed. The husband did not appear to dispute that he owed the amounts claimed by the wife (as set out in paragraphs 2(1) to 2(4) above). However, he made a number of submissions as to why I should exercise my discretion not to enforce the various orders, either wholly or in part, as follows:

5 Firstly, the husband made a number of submissions that were either irrelevant and/or did not otherwise advance his case. For example:

1.The husband maintained that as the insurance policy was taken out in his name only, the insurance proceeds could not be the subject of enforcement proceedings by the wife. The husband was mistaken in this view.

2.The husband maintained that the expenses previously claimed by the wife in preparing the Suburb A property for sale (both before and after the fire) were excessive and should be “closely examined”. However, these issues were all dealt with by me in my decision handed down on 2 August 2018 and accordingly, it was not open to the husband to attempt to re-agitate these matters.

3.The husband complained that various factual matters that occurred prior to the making of the 2010 final orders were not taken into account when those orders were made (for example, the parenting arrangements for the parties’ three children, that the wife allegedly received various Centrelink entitlements during the marriage and that the wife allegedly sold business fixtures, fittings and stock but did not account for the proceeds). However, in the context of the enforcement proceedings (and in circumstances where, since 2010, the husband has not sought to either appeal the 2010 final orders or commence s 79A proceedings), it was again not open to the husband to attempt to re-agitate these matters.

6 Secondly, the husband submitted that he should not be expected to reimburse the wife the amount set out in paragraph 2(3) above as the wife had not complied with her obligation to pay 50 per cent of the water rates for various properties, as required by the 2010 final orders. The husband’s evidence in relation to this issue was very sparse. Although the husband deposed that the wife changed the mailing address to her address and cancelled the water supply to the Suburb A property, I am unable to conclude on the available evidence that the wife did not comply with the 2010 final orders, as the husband alleged.

7 Thirdly, the husband maintained that the wife did not sell the Suburb A property for market value. The husband’s evidence in this regard was again very sparse and difficult to follow. For example, although the husband referred to the advertised asking price for the property from time to time, this was of little assistance to me. On the other hand, the wife’s evidence was that the Suburb A property was valued at $410,000 prior to the fire. She eventually sold the property in its fire damaged state for $300,000; and the husband subsequently received the insurance payout for the balance: being $110,000. At the end of the day, on the basis of the available evidence, I am not satisfied that the wife allowed the Suburb A property to be sold for less than market value.

8 Finally, the husband correctly maintained that pursuant to the 2010 final orders he was entitled to receive 30 per cent and the wife 70 per cent of the net assets. This was on the basis that he retained the Suburb A property, with a fixed value of $500,000, and that two other properties (“the [Suburb B] properties”) be sold. However, given the decrease in in the value of the properties in the years leading up to their eventual sale, the implementation of the orders resulted in the wife receiving much more than 70 per cent of the “realised” value of the assets. The insurance proceeds were, in effect, the only remaining funds available from which the husband could receive his property settlement entitlements. If the wife received the payment as sought by her, then she would effectively receive close to 100 per cent of the available assets.

9As I have previously found in my reasons for decision delivered on 2 August 2018, when the parties consented to the 2010 final orders, they anticipated that the properties would sell for more than they ultimately did, and the sales of the Suburb B properties were also delayed by the subdivision process. It was also not in dispute that: (1) the wife had already received in excess of $408,000 from the sale of the Suburb B properties and a further $70,373 from the sale of the Suburb A property; and (2) the insurance proceeds of $110,000 were the only remaining significant asset of the husband. The wife’s counsel conceded that if the wife’s latest enforcement application was successful, then inevitably the husband would receive much less than that contemplated by the 2010 final orders. Subject to the qualification in the following paragraph of these reasons, I consider that the husband’s submission in this regard has considerable merit, and warrants me exercising my discretion not to enforce all the orders as sought by the wife: in particular, the orders as set out in paragraph 2(1), 2(2) and 2(3) above.

10However, balanced against this is the two costs orders sought to be enforced by the wife totalling $51,500. Those orders were made in circumstances where I found that the enforcement proceedings were made more lengthy, difficult and expensive by the husband’s own actions in: (1) continually failing to comply with court orders over the years, including to facilitate the sale of the Suburb A property; (2) allowing the Suburb A property to fall into significant disrepair; and (3) moving back into the Suburb A property himself and also allowing third parties to occupy the property, further delaying the sale process and necessitating the wife commencing further proceedings to evict the husband and the third parties. In circumstances where the husband’s current predicament in relation to the payment of the two costs orders is entirely of his own making, I am persuaded that I should exercise my discretion to enforce the two costs orders.[6]

[6] The wife did not make any claim for interest in relation to the two costs orders.

11Both parties also sought an order for costs against the other in relation to this round of the enforcement proceedings: the wife sought the amount of $2,500 from the husband; and the husband sought the amount of $5,000 from the wife. There was little, if any, evidence as to the current financial circumstances of the parties. In the 2018 costs proceedings, the wife’s counsel conceded that the husband’s financial position was not good. There was no current evidence, and the wife’s counsel did not suggest, that the husband’s financial circumstances had improved since 2018. Both parties have been represented by solicitors at various stages during the enforcement proceedings, albeit the husband was not represented during this current round. Neither the husband nor the wife are in receipt of legal aid. Neither the husband nor the wife were wholly successful or unsuccessful in this round of the enforcement proceedings.

12The discretion to award costs is a “broad” one, and the various enumerated factors are not to be read in any restrictive way.[7] Any one of the factors may be the sole foundation for an order for costs.[8] Nevertheless, the matters enumerated “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.[9] On balance, I am not satisfied that the circumstances justify the making of an order for costs either in favour of the wife or the husband.

[7] Collins & Collins (1985) FLC 91-603.

[8] Fitzgerald v Fish (2005) 33 Fam LR 123.

[9] I and I (No 2) (1995) FLC 92-625, 82,277.

13The parties consented to me issuing my reasons and orders from chambers, to avoid the necessity for the parties to incur the costs of a further court attendance. I propose to make the following orders:

1.The proceeds from the insurance payout from [Insurer A] of $110,000 be disbursed as follows:

a)The sum of $51,500 to the Applicant, [Ms Hawthorn]; and

b) The balance to the Respondent, [Mr Hawthorn].

2.All outstanding proceedings otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

7 APRIL 2020