HERRON & HERRON

[2015] FamCA 165

FAMILY COURT OF AUSTRALIA

HERRON & HERRON [2015] FamCA 165

FAMILY LAW – ENFORCEMENT OF ORDERS – Final consent orders made December 2014 – respondent wife refuses to sign documents – applicant husband seeks s 106A orders – husband successful – order for costs.

Family Law Act 1975 (Cth) ss. 80, 106A, 117.

APPLICANT: Mr Herron

RESPONDENT: Ms Herron

FILE NUMBER: MLC 7176 of 2012

ORDERS DELIVERED:	3 March 2015
REASONS DELIVERED:	17 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 3 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Richmond & Bennison

THE RESPONDENT: In person

Orders

1. A Registrar of this Court execute the following documents on behalf of the wife:

   (i)Transfer of Land for the properties at 1, 2 and 3 E Street, Suburb B;

   (ii)Authority to the Commonwealth Bank to close accounts:

   a.…;

   b.…; and

   c.…;

   held by the husband and wife as Trustees of the Herron Family Superannuation Fund, and to disburse those funds to a super fund of the husband’s choosing; and

   (iii)authority to the Commonwealth bank to close account … and to disburse the funds as to $225,025 to the wife and the balance to the husband.

2. Paragraph 2 of the husband’s Application in a Case filed 19 January 2015 is withdrawn.

3. Paragraph 3 of the husband’s Application in a Case filed 19 January 2015 is dismissed.

4. The wife pay the husband’s costs of and incidental to this Application with such costs to be as agreed and failing agreement as assessed by a Registrar of this Court, with such costs to be paid within 28 days.

5. The transcript of today’s proceedings be provided and placed on the Court file once received.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Herron & Herron 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 MELBOURNE

FILE NUMBER: MLC 7176  of 2012

Mr Herron

Applicant

And

Ms Herron

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case filed by the husband on 19 January 2015 seeking the enforcement of final property orders made by consent in this Court on 3 December 2014. The application was made pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”).

2. The husband’s Application in a Case is supported by an affidavit from the husband filed 19 January 2015 and an affidavit from the solicitors for the husband filed 24 February 2015.

3. The husband’s application seeks that a Registrar of the Court be appointed to execute transfer of land documents for three properties in Suburb B, to close joint bank accounts held by the parties as trustees of the family superannuation fund and to disburse those funds to a superannuation fund of the husband’s choosing.  The husband also seeks that the Registrar completes an authority to the Commonwealth Bank to close a further joint account and to disburse the funds in accordance with the consent orders made on 3 December 2014. 

4. Additionally, the husband seeks orders for costs of the application and costs in respect of his previous Application in a Case which was before Johns J on

   
   

   3 December 2014.

5. The wife did not file a response to the husband’s Application in a Case but filed instead an affidavit from a forensic accountant annexing a valuation of C Pty Ltd originally held in D Pty Ltd, which had been completed on 28 May 2014.  The relevance of this affidavit is unclear but the wife asserts that it is relevant to a reopening of the matters which had been previously agreed by the parties and committed to consent orders before Cronin J on 10 June 2014 and Johns J on 3 December 2014.

6. The wife appears without legal representation but submits that she consulted a legal service for advice after her last court appearance in December 2014.  The wife seeks orally to reargue the issues between the parties which led to the making of the consent orders in June 2014 and December 2014.  She maintains that she has concerns about signing the documents provided by the solicitors for the husband because she is suspicious of the husband’s motives and she requires further discovery of documents. 

7. The wife ultimately makes an application to adjourn the proceedings to obtain further legal advice but also asserts that it is unlikely that she will have access to any legal advice because she has no funds and is uncertain whether any legal service would assist her.  The application for an adjournment is opposed by counsel for the husband.

8. The matter was stood down so the wife could consult the duty lawyer who the wife asserts advised her to obtain further legal advice.  The wife also asserts that she is entitled to make other applications, one of which would be a contravention application, but she cannot provide any detail as to the nature of this application. 

9. Despite a lengthy discussion with the wife about what legal advice she proposed to access, it was difficult to elicit a direct response to this question.  The wife indicated numerous obstacles which might prevent her from obtaining further legal advice.  Essentially she stated that she was without funds and would be unlikely to obtain assistance from private lawyers or from a legal service as one of the legal service lawyers whom she had previously consulted has been on leave since Christmas and has not yet returned.

10. After hearing submissions from the wife, I am not satisfied that she intends to obtain any further advice or would be in any different position at a further hearing date. 

11. I am not satisfied of the bona fides of the wife’s application for an adjournment to seek further legal advice for a number of reasons.  The wife was legally represented by both Counsel and instructing solicitors at the earlier stage when the orders were made in June 2014.  The wife accessed legal advice at the time of and since the final consent orders were made in December 2014 and there is extensive correspondence which has been exchanged between the wife and the solicitors for the husband about the implementation of the orders.  In addition to those reasons, the equivocal and non-responsive answers given by the wife in Court about her proposals give me no confidence that she has any intention of obtaining further legal advice.

12. In these circumstances, I am not satisfied that the wife would suffer any prejudice by proceeding with the matter before me, to which the wife has not filed any response.  I also note that despite having obtained further legal advice, the wife has taken no further steps in this Court and has not lodged any appeal in respect of the orders made on 3 December 2014. 

13. The oral application of the wife for an adjournment is accordingly refused.

14. The hearing was conducted on submissions having been listed in the judicial duty list.

15. There is untested evidence in the affidavit of the solicitor for the husband filed 24 February 2015 that since 16 January 2015 the respondent wife has continued to prevent final settlement of the transactions required to give effect to the orders made on 3 December 2014.  The annexures to that affidavit disclose the nature of the written communications between the wife and the solicitors for the husband.  The wife took no issue with the correspondence annexed to the affidavit material.  The wife in her correspondence continued to seek further discovery, further disclosure of subpoenaed documents and disclosure of superannuation funds of the husband and to make claims for further payments from the husband.  Her correspondence reveals that she sought to agitate issues which had already been determined by way of the final consent orders. 

16. The wife continued to send correspondence to the solicitors for the husband maintaining that the consent orders made 3 December 2014 were not “just and equitable” and that she did not agree with the orders because they were in favour of the husband.  She claimed a suppression of evidence and duress and a failure to disclose by the husband and proposed amendments to the consent orders which provided for the husband to make payments of $150,000, $120,000 and $695,000 to her.  She also sought lump sum spousal maintenance of $90,000 and various other payments to be made by the husband.

17. It was uncontroversial that consent orders were made on 10 June 2014 where the wife was legally represented.  The solicitor for the husband deposed that on 13 August 2014 the solicitors for the wife indicated that she was refusing to sign a financial agreement which was to be an integral part of the settlement given effect to by the 10 June 2014 orders. 

18. He deposed that on 24 October 2014 the husband filed an enforcement application which had three mentions before this Court and that an amended application sought enforcement of the consent orders by 13 November 2014. 

19. He deposed that at the first hearing on 5 November 2014, the matter was adjourned to permit the wife to obtain legal advice.  He deposed that on 26 November 2014 the wife sought lump sum spousal maintenance and that at a second hearing on 28 November 2014, the matter substantially settled.  He deposed that the wife sought an adjournment to obtain legal advice and the matter was listed for a third time for the making of orders. 

20. Final orders were made on 3 December 2014 by consent and the wife, according to her submission, sought advice from the legal aid duty lawyer before signing those orders.

21. The wife refuses to complete the documentation to give effect to the orders.

22. The husband asserts that he has incurred legal costs of $10,932.84 including counsel’s fees from the date the wife first indicated she was unwilling to comply with the orders made on 10 June 2014 until the consent orders were made on 3 December 2014. 

23. I refuse the husband’s application for those costs on the basis that they had not been sought at the time the consent orders were made on 3 December 2014 and that there had been a renegotiation of the property settlement on that date which was intended to finalise financial matters between the parties.  I am not satisfied that there are circumstances which justify a departure from the usual principle whereby each party bears their own costs.

24. The husband seeks that the wife pay the costs of this Application in a Case amounting to $8,241 which includes counsel’s fees for attendance at Court on the day of the hearing.

25. On 17 February 2015 the solicitors for the husband wrote to the wife[1] requesting that she complete the transfer of land documents signed by the husband and requesting that she sign and return authorities to the Commonwealth Bank for the purposes of settlement and reminding the wife that Notation A of the consent orders made on 3 December 2014 provided that:

    The parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings.

    [1] Affidavit of the solicitor for the husband filed 24 February 2015 at Annexure GA4.

26. That letter clearly outlined to the wife that there was nothing further required of her for implementation of the orders other than the following relevant matters:

    a)The signing and stamping of the transfers; and

    b)The booking of the settlement with the Commonwealth Bank- which is our responsibility on behalf of the husband;

    c)…

    d)The bank transactions from the term deposit;

    e)Your removal from the self-managed super fund.

27. Having heard from the wife at length as to the reasons why she is not prepared to comply with the consent orders which she signed on 3 December 2014, I am satisfied that the wife has had sufficient opportunity since then to obtain legal advice about her circumstances.  I am satisfied that there was extensive correspondence entered into between the solicitors for the husband and the wife leading up to this hearing which on the wife’s own correspondence suggested that she sought to reopen negotiations about the final orders to which she had agreed.  These orders were intended as far as practicable to finally determine the financial relationships between the parties and avoid further proceedings between them. 

28. Amongst other orders, the consent orders dated 3 December 2014 provide under order 5 that contemporaneously with the second payment, the wife will transfer to the husband absolutely all her right, title and interest in the properties known as and situate at 1, 2 and 3 E Street, Suburb B free of all encumbrances. 

29. Order 7 of those orders provides that:

    … the wife do all acts and things necessary to transfer any interest she may have in the [Herron] Family self-managed Superannuation Fund into the husband’s sole name at his expense.

30. Order 11 of those consent orders provides for all joint accounts in the name of the parties to be closed and any balance be divided equally. 

31. Significantly Notation A provides that the parties intend that these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them. 

32. There was some discussion about what powers would be exercised by the Court pursuant to the husband’s application and ultimately I was satisfied that there is power in the Court to make the orders sought by the husband pursuant to

    
    

    s 106A and s 80 of the Act to provide for the enforcement of the consent orders.

33. I am satisfied that the wife has refused to comply with the orders having regard to the correspondence between the solicitors for the husband and the wife and her assertions and submissions in court today that she is not prepared to sign the transfer of land document because she believes that it is “in the wrong form.”

34. The final orders made on 3 December 2014 are clear but the wife asserts that she will not cooperate by signing the necessary documents to implement those orders.  Although she asserts that she would not sign the transfer of land documents because they were “in the wrong form”, having regard to her correspondence with the solicitors for the husband it would appear that she does not accept what she agreed to before the Court on 3 December 2014.

35. Accordingly, I consider that it is necessary to make the orders sought by the husband to give effect to the consent orders agreed between the parties.  It is important to note that the final orders made by the Court on 3 December 2014 were made at the request of the parties and with their consent.

36. The solicitors for the husband put the wife on notice that a cost application would be made at the hearing on 3 March 2015 if she continued to seek further monies to which she was not entitled, to compel the provision of further documentation to which she was not entitled and to reopen matters which were concluded by the making of the consent orders on 3 December 2014.

37. Under s 117(1) of the Act, the general rule is that each party should bear his or her own costs of proceedings under the Act. However, the Court is empowered to make an order for costs if it is of the opinion that there are circumstances that justify such an order. It is entirely a matter for the discretion of the Court.

38. Section 117(2A) of the Act mandates the factors to which the court must have regard in considering whether to make an order for costs. They are:

    (a)the financial circumstances of each of the parties to the proceedings;

    (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

    (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

    (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    (g)such other matters as the court considers relevant.

39. The wife opposes the husband’s application for the costs of the hearing.  I note that the wife claims that she is impecunious but she is entitled to a payment from the husband of $640,000 under the terms of the consent orders made

    
    

    3 December 2014 when the properties are transferred to the husband.

40. I am satisfied in this case that there are circumstances justifying a departure from the principle that each party bear their own costs.  The husband had little choice but to bring these proceedings on the basis that the wife refused to comply with the court orders made by consent.  The wife took no steps in this Court since those orders were made.

41. It is appropriate to exercise my discretion to make an order that the wife pay the husband’s costs.  The reasons for making the order include the conduct of the wife in relation to the proceedings, her refusal to sign the documents provided by the solicitors for the husband together with the fact that the proceedings were necessitated by her failure to comply with the orders of the court, the fact that she had been notified in writing by the solicitors for the husband of the prospect of a costs order and the fact that she has been wholly unsuccessful in the proceedings.

Conclusion

1. The husband has withdrawn paragraph 2 of his Application in a Case.

2. I make orders for a Registrar of this Court to execute the documents on behalf of the wife which relate to those matters particularised in paragraph 1 of the husband’s Application in a Case with the exception of the share transfer form for F Pty Ltd shares held by the parties, which the wife has already signed.

3. Paragraph 3 of the husband’s Application in a Case regarding the costs of the husband’s application filed on 24 October 2014 is dismissed.

4. The wife is to pay the husband’s costs of and incidental to this application with such costs to be agreed, and failing agreement, as assessed by a Registrar of this Court, with such costs to be paid within 28 days.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 17 March 2015.

Associate:

Date:  17 March 2015