Hopkins & Elliott (No 3)
[2023] FedCFamC1F 531
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Elliott (No 3) [2023] FedCFamC1F 531
File number(s): SYC 5636 of 2021 Judgment of: CAMPTON J Date of judgment: 29 June 2023 Catchwords: FAMILY LAW – REVIEW – Application for the review of an order made by a judicial registrar enforcing a primary order for the wife to vacate a property legally owned by the husband – Where the wife sought to stay the primary order and her application for a stay was refused – Where the wife has commenced current appeal proceedings against the primary order – Where the wife has filed a further Application in a Proceeding and an Application in an Appeal seeking to stay the primary order – Where the wife’s review application is in reality an attempt to relitigate her application to stay the primary order – Application for review dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 12.06, 14.07
Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 29 June 2023 Place: Sydney Counsel for the Applicant: Ms Rusiti Solicitor for the Applicant: Parker Law Solicitor for the Respondent: Mr Neumann, Eddy Neumann Lawyers ORDERS
SYC 5636 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOPKINS
Applicant
AND: MS ELLIOTT
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
29 JUNE 2023
THE COURT ORDERS THAT:
1.The Application for Review of the wife filed 19 June 2023 from an order made by a judicial registrar on 6 June 2023 is dismissed.
2.That a warrant for possession of the property pursuant to r 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) is issued today in favour of the husband as to the property known as B Street, Suburb C NSW.
3.I stay release of the warrant pursuant to [the above order] until 5.00 pm on 4 July 2023.
4.The Application for Enforcement for the husband as amended on 16 May 2023 and the Application in a Proceeding filed 22 May 2023 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hopkins & Elliott (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine the Application for Review of the wife filed 19 June 2023 from orders made by a judicial registrar on 6 June 2023, being:
1. A warrant for possession of the property pursuant to [r] 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is issued today in favour of the [husband] and in relation to the property known as [B Street, Suburb C] NSW.
2. I stay release of the warrant pursuant to Order 1 for a period of fourteen (14) days from today's date.
3. I reserve each parties cost in relation to [today’s] hearing.
4. I dismiss both the Amended Application Enforcement filed 17 May 2023 and the Application in a Proceeding filed 22 May 2023.
The husband opposes the relief sought by the wife on review insofar as it purports to disturb the integrity of those orders.
The orders made by the judicial registrar are by way of enforcement of an order made by Austin J on 17 March 2023 as follows:
2.Within one month of the date of these orders the [wife] shall forthwith vacate the real property and improvements known as [B Street, Suburb C], NSW (“the property”) and is thereafter restrained from entering upon the property.
BACKGROUND
The proceeding was commenced by the husband filing an Initiating Application on 5 August 2021 in what was then the Federal Circuit Court, seeking a range of declarations as to the property interests of the parties consistent with those identified at that time as held at law, and orders by way of injunction supporting those declarations. Implicitly, it was and remains the husband’s contention that there is no warrant for adjustment of property as between he and the wife.
After a series of orders and directions, the wife belatedly filed a Response to the husband’s Initiating Application on 10 November 2022. The wife seeks, by way of that Response, adjustment of the property interests of the parties such that she receive 70 per cent “of the value of the full marital asset pool (including superannuation)”, and as part of that division, the husband to transfer to her the unencumbered property at B Street, Suburb C (“the Suburb C property”). She additionally sought orders for her periodic spouse maintenance in the sum of $4,000 per week for a period of five years indexed to the Consumer Price Index.
The proceeding was transferred to this Court on 14 December 2022.
The parties are in dispute as to the date of their cohabitation and of separation. Doing the best I can on a reading of the material of the husband, he contends the parties commenced cohabitation when they married in 2016 and separated on 2 June 2020. The wife contends the parties commenced cohabitation in June 2014 and separated in February 2022 (being after the proceeding commenced).
There are no children of the marriage.
The litigation between the parties has not been restricted to that pursuant to the Family Law Act1975 (Cth) (“the Act”). They have been engaged in Supreme Court litigation as to a caveat, and in litigation as to a workers’ compensation claim of the wife against a corporate entity in which the husband has an interest, D Pty Ltd. Orders were made by Austin J on 17 March 2023 granting the husband leave to provide documents filed in this proceeding to the workers’ compensation insurer and its lawyers defending the claim of the wife in that litigation.
The parties make competing allegations as to family violence, as to the unilateral use and application of substantive funds by way of the predispositions of property in an attempt to defeat substantive claims and as to failures to comply with disclosure obligations.
An inspection of the Court’s file reveals that these parties have consumed the following:
(a)11 case management, duty list and directions hearings events before delegated judicial officers;
(b)four interim hearings;
(c)two enforcement hearings;
(d)one completed set of appeal proceedings; and
(e)a current set of appeal proceedings.
They have filed a total of eight Applications in a Proceeding and three Applications for Review.
Three Applications in an Appeal have been filed in the current appeal proceedings.
The parties costs to date are identified in the costs notices (Exhibits 4 and Exhibit 5). They record that as at 26 June 2023 the husband has incurred costs of about $115,000 of which $88,589.65 is paid, and the wife has incurred costs estimated to be $59,000. It does not record what the wife has paid to date, and does not comply with r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
A CAUTION TO THE PARTIES
Notwithstanding the plethora of litigation, the parties are yet, on my reading of the Court file, to compile a collaborative or joint draft balance sheet. They are yet to participate in a financial conciliation conference. A reading of the many orders made in the proceeding leads to the conclusion that there has been an abject failure to conduct this litigation consistently with what is prescribed by r 1.04 of the Rules and s 67 and s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). This does little credit to either party.
The parties are placed on notice by these reasons that in the event they fail or neglect to comply with future orders or directions made or with the Rules, their substantive relief may be struck out consistent with the procedures identified in r 1.33 of the Rules permitting the other party to proceed to have the matter determined on an undefended basis.
THE REVIEW
Rule 14.07 of the Rules sets out the power of the Court on review from an order of a judicial registrar is to be exercised by way of an original hearing.
By his Amended Application for Enforcement filed 17 May 2023, the husband sought relief securing Order 2 made by Austin J on 17 March 2023 that he have possession to the exclusion of the wife of the Suburb C property, and that the wife vacate that property within one month the orders (being by 18 April 2023). The wife continues to occupy the Suburb C property and the husband remains living elsewhere. The order for the wife to vacate the Suburb C property made by Austin J, have been in breach for more than two months.
The orders subject to review are orders facilitating the enforcement of the primary order made by Austin J. The wife filed a Notice of Appeal to the Full Court from Order 2 made by Austin J on 17 March 2023. Implicitly, having regard to the nature of the order, it is necessary for the wife to seek leave to appeal from that order. The wife made an application before Austin J to stay Order 2, and that application for a stay was refused on 17 April 2023.
On 1 June 2023 the wife filed a further Amended Notice of Appeal. It is her contention that the grounds contained in the further Amended Notice of Appeal are substantially different to those identified in the Notice of Appeal previously filed to support her stay application dismissed by Austin J. She submits that a consideration of her further amended appeal grounds, together with other factors, support the merit of her appeal (and implicitly her application for leave to appeal) and would support a further application if it were made for a stay of Order 2 made on 17 March 2023.
I inquired at the commencement at the review hearing as to whether the wife had made any such further Application in a Proceeding before Austin J to stay Order 2, grounded from what was contained in her further Amended Notice of Appeal filed 1 June 2023. The wife’s solicitor initially told me that such an application had been made. He then confirmed it had not been made. It seems the reality was that the wife attempted to file such a further application and was refused permission to file it by a deputy registrar. That determination by a deputy registrar was subject to an Application for Review filed by the wife on 6 June 2023, and amended on 22 June 2023. That Amended Application for Review was listed before me today. An order was made at the commencement of the hearing granting the wife leave to withdraw it.
It emerged during the hearing that the wife filed a further Application in a Proceeding on 23 June 2023 (sealed on 28 June 2023), seeking orders as follows:
1. That Leave be granted to the [wife] to apply for this Application in a Proceeding.
2. That the Respondent Wife be granted exclusive possession of the [[Suburb C] property] until the determination of the appeal in NAA83/2023.
3. That this Application be listed before Justice Campton at 2: 15pm on 29 June 2023.
4. Such other orders as are necessary.
(As per the original)
The wife did not seek to rely on this Application in a Proceeding at the hearing today.
During the course of the hearing today, in circumstances where the wife has not made further application to Austin J to stay the primary order made 17 March 2023, I inquired of the wife’s solicitor:
(a)Whether her position on review was effectively, and in reality is, the making application before me to stay the order of Austin J made 17 March 2023; and
(b)If that was the case, why her Application for Review ought not be considered to be an abuse of process.
In response it was the wife’s contention that the enforcement sought by the husband of the primary order was discretionary, and that orders could be made staying enforcement or setting aside Order 2 as part of the review process. I accept the first limb of contention, being that enforcement is discretionary. I reject the second limb.
Cast against those inquiries, during the hearing the wife agreed that an order could be made such that her Application in a Proceeding filed 23 June 2023 would be withdrawn and dismissed, with the wife having liberty to make such further Application in a Proceeding as she has advised. An order will be made to that effect.
It is important to also note at this point that it appears that the wife, by way of an Application in an Appeal, has applied to the Full Court to stay Order 2 made on 17 March 2023. This circumstance emerged by chance late in the hearing of the review. For reasons that remain unclear to me at this time, I am advised that the wife’s Application in an Appeal has been listed for hearing at the same time as her application for leave to appeal, and if leave is granted, the appeal itself, on 31 July 2023.
The gravamen of the husband’s Application for Enforcement is unsurprising. He identifies that he has obtained the benefit of a Court order, and an application for its stay pending an appeal was refused. He submits that he ought to receive the benefits of the fruits of the order, relying on established authority that the determination is presumed to be correct. He raises issues as to the bona fides of the wife in opposing enforcement, identifying that the wife in a recent affidavit has used language that implies she is not occupying the Suburb C property but is living in her car.
The husband strongly submits, for the purposes of an exercise of discretion for the Court to enforce its own orders, that the strength of the wife’s appeal (and implicitly, her application for leave to appeal) is not strong. He submits that the fact that the appeal is listed for hearing before the Full Court on 31 July 2023 carries with it the likelihood that a determination on the appeal will not be made until sometime thereafter.
It is his evidence that he is paying a significant monthly mortgage on the Suburb C property (as identified in his Financial Statement filed 27 June 2023) and that doing so while meeting his other expenses, causes him financial hardship.
Ultimately, it is the husband’s firm submission that there is little value in this Court making orders if they cannot be enforced.
The husband makes multiple complaints as to the wife’s conduct throughout the proceeding, contending that she has delayed and frustrated the progression of the litigation. It is the husband’s case that if the wife contends she has a right of spouse maintenance, she can make an application for orders for her maintenance, including orders to assist in her meeting the cost of alternative accommodation, consistent with what is contained in Pt VIII of the Act as she is advised. It is his contention, as least implicitly, that her failure to do so weaves further mischief in her case and her contentions which would warrant an exercise of discretion for the Court to enforce its own orders.
For her part, the wife sought to tip an exercise of discretion away from enforcing the Court’s orders, by identifying the merit of her appeal, and her contention that if she is required to leave the Suburb C property she will be homeless, living in her car from the street and will be unable to have access to her therapy animal. She contends as I understood her submissions, notwithstanding her failure to seek a further stay of the primary order before Austin J, that on the balance of convenience, the Court ought not to enforce its own order.
DETERMINATION
The Court expects compliance with its orders. Orders are not suggestions or guidelines.
So that it is clear, parties have a capacity exercising their rights at law to appeal from orders of a superior court, to seek a stay of the orders pending determination of those rights of appeal, or to apply to vary interlocutory orders such as those sought to be enforced.
It is fundamental to the administration of justice that orders of a Court be respected, complied with and if necessary, enforced. At present, the wife has failed to mount a persuasive case to ground an exercise of discretion for this Court not to enforce its own orders.
It is difficult to comprehend how justice would be occasioned if this Court, having regard to the matters identified by the husband earlier in these reasons, did not to enforce its own orders. The reality is that the wife has, in my view, attempted to use this process of review to obtain a de facto stay of Order 2 made on 17 March 2023, in circumstances where Austin J has refused that stay and where she retains a capacity to make such further application before Austin J to again consider a stay of the order grounded her amended grounds of appeal, and where an Application in an Appeal is currently before the Full Court seeking the same relief.
It would be an affront to the administration of justice in this Court to now permit a third avenue or “rear door” pathway of obtaining a stay of that primary order. This conclusion is reinforced by the absence of probative evidence provided by the wife in opposing enforcement, including her failure to file an updated Financial Statement.
The Application for Review is wholly without merit. It will be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 29 June 2023
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