Iannello and Iannello (No.8)
[2020] FCCA 949
•14 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IANNELLO & IANNELLO (No.8) | [2020] FCCA 949 |
| Catchwords: FAMILY LAW – Property – enforcement of final property orders – Where urgency of the Application is established – payment of monies held in trust by Husband’s former solicitor. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.6.14, 13.04, 25B.61(c) Legal Profession Uniform Law (Vic), s.138(2) |
| Cases cited: Iannello & Iannello (No.5) [2020] FCCA 589 Iannello & Iannello (No.6) [2020] FCCA 761 |
| Applicant: | MS IANNELLO |
| Respondent: | MR IANNELLO |
| File Number: | MLC 3008 of 2018 |
| Judgment of: | Judge C E Kirton QC |
| Hearing date: | 14 April 2020 |
| Date of Last Submission: | 14 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 14 April 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Marshall +Dent + Wilmoth |
| The Respondent appearing in person |
| Solicitors for the Independent Children’s Lawyer: | Leslie Family Law |
ORDERS
Pursuant to r.25B.61(c) of the Federal Circuit Court Rules 2001 (Cth) the principal of the legal practice Bayside Family Law Solutions is directed to pay, as directed by the Wife, the monies held in trust by that firm in the joint names of the parties with an estimated balance of $206,731.24.
The Wife's costs of and incidental to filing the Application in a Case, dated 7 April 2020, be heard and determined together with the costs in the principal proceeding at the mention on 9 June 2020.
AND THE COURT NOTES
A.For the avoidance of doubt, Order 1 is an Order of the Court of competent jurisdiction for the purposes of section 138(2) of the Legal Profession Uniform Law(Vic).
IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello (No.8) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3008 of 2018
| MS IANNELLO |
Applicant
And
| MR IANNELLO |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
Final judgment in this matter was delivered on 23 March 2020 in the matter of Iannello & Iannello (No.5) [2020] FCCA 589. Three weeks and one day have now passed since Final Orders were made.
Previous Judgments and Orders
Since 23 March 2020, this matter has come before the Court on two previous occasions, due to the Husband not complying with the Final Orders. This is now the third occasion that this matter comes back before the Court due to the Husband's further failure to comply with Final Orders.
The first occasion the matter came before the Court for enforcement proceedings was on 24 March 2020, in the matter of Iannello & Iannello (No.6) [2020] FCCA 761. The first enforcement hearing was the day after the Final Orders were pronounced. On that occasion the Court made an ex-parte Recovery Order in relation to the children, X, born in 2005, and Y, born in 2008 (Children). The Recovery Order included Orders that:
a)The Children be returned to the care of the Wife;
b)The Husband be arrested, without warrant, in the event that he again removes or again takes possession of the Children, after the execution of the Recovery Order; and
c)The Wife be at liberty to provide a copy of the decision in Iannello & Iannello (No.5) [2020] FCCA 589 to the Department of Health and Human Services.
The second occasion that this matter came before the Court for enforcement proceedings was on 27 March 2020, on the return of the Recovery Order, after the Husband had been served with the relevant documents by the Wife's solicitors. The Husband participated in a telephone hearing on that occasion as a self-represented litigant. On 27 March 2020 the Court made Orders that included an Order that the Husband's time with the Children be suspended for a period of two months, from the time the Federal Police had executed the Recovery Order, being the evening of 26 March 2020.
Current Application
The Court has before it today:
a)An Application in a Case, filed on 7 April 2020 (Application in a Case); and
b)An affidavit of the Wife, filed on 7 April 2020 (Wife's Affidavit).
The Wife’s Affidavit was filed in accordance with the Joint Practice Direction 2: JPD 2 of 2020 - Special Measures in response to COVID-19, Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents and Affidavits, and Fees, dated 31 March 2020. The Wife has today affirmed the contents of that affidavit in accordance with paragraph 11 of Joint Practice Direction 2.
The Application in a Case seeks orders that:
a)Times be abridged to allow the hearing as a matter of urgency.
b)Pursuant to r.6.14 of the Federal Circuit Court Rules 2001 (Cth) (Rules), the requirements for service of the Application in a Case and the Wife's Affidavit be substituted with the requirement that the Wife bring them to the Husband's attention by:
i)Sending the documents to the Husband's email address;
ii)Sending the documents by ordinary post to:
(a) The Husband's residential address;
(b) The Husband's post office box address; and
iii)Notifying the Husband of these steps by text message.
c)Pursuant to r.25B.61(c) of the Rules, the Principal of the legal practice ‘Bayside Family Law Solutions’ be directed to pay, as directed by the Wife, the monies held on trust by that firm in the joint name of the parties with an estimated balance of $206,731.24.
d)The Wife's costs of and incidental to the filing of the Application in a Case be heard and determined together with the costs of the principle proceeding at the Mention on 9 June 2020.
On 9 April 2020 the Court made the following Orders in Chambers pursuant to r.13.04 of the Rules:
a)That all times be abridged to allow the Application in a Case to be heard as a matter of urgency.
b)The Application in a Case be listed on 14 April 2020 at 10:00 am for enforcement hearing.
c)The Wife serve a copy of these Orders, the Application in a Case and the Wife’s Affidavit, on the Husband by email and text message forthwith.
d)The Husband file and serve a Notice of Address for Service via the Commonwealth Courts Portal forthwith.
Service
In relation to service, I am satisfied that the Wife's solicitors served the Husband in accordance with the Orders made on 9 April 2020. This morning the Husband has confirmed that he was so served. I am also satisfied that this enforcement hearing came to the attention of the Husband as follows:
a)On 9 April 2020 at approximately 12:14 pm a representative of the Court telephoned the Husband on his mobile telephone and informed the Husband that the matter had been listed for enforcement hearing today at 10:00 am, and that he was required to attend;
b)The Court representative also apprised the Husband that the Court had sent him the Notice of Listing and a copy of the Orders made on 9 April 2020 to his email address. The call was terminated at 12:15 pm.
The Husband has today acknowledged that he was so notified by the Court on 9 April 2020.
Notice of Address for Service
The Husband has not filed a Notice of Address for Service on the Commonwealth Courts Portal as at this morning.
Substantive Application
I turn now to consider the substantive application made by the Wife. In Order 27 of the Orders made on 23 March 2020, it was ordered that:
The parties forthwith do all acts and things and sign all documents necessary to cause the proceeds of sale of the real property situated at and known as Property A in the State of Victoria, held on trust by the former solicitors for the Husband, Bayside Family Law Solutions, together with interest earned on that sum, to be paid to the Wife.
At the enforcement hearing on 27 March 2020, the solicitor for the Wife raised with the Court an issue in relation to Order 27 (T8, L44-46). The Wife's solicitor informed the Court (T9, L3) that on Tuesday 24 March 2020 the Wife's solicitors had sent to the Husband an authority for the withdrawal of funds held by Bayside Family Solutions. However, as at Friday 27 March 2020 the Husband had not signed that authority. The Wife's solicitor said (T 9, L7-11):
Given the events of this week, my client has real concerns that there won't be any cooperation in that respect, and particularly if there is no financial incentive for [the Husband] to cooperate. I appreciate that this is not a matter formally before your Honour but wondered whether there might be a direction made to that firm to release the funds in accordance with the orders of 23 March.
The Court declined to deal with the matter on that occasion, as the Husband was not on notice by way of an Application in a Case filed with the Court at that time. However, the Court told the Husband that there were some documents from the Wife's solicitors for him to sign in relation to this matter and reminded the Husband that he had been previously ordered by the Court to sign documents for the release of the funds (T9, L13-25). The Husband then wanted the Court to advise him of his appeal rights, which the Court declined to do (T9, L31-37).
Wife's Affidavit
The Wife deposed in paragraph 7 of the Wife’s Affidavit, that on 30 March 2020 she instructed her solicitors to write to the Husband, providing him with an authority to Bayside Family Law Solutions for the release to her of the funds held on trust by that firm in accordance with Order 27 of the Final Orders. The Wife's solicitors requested a response from the Husband by 4:00 pm on 3 April 2020. At the time the Wife signed her affidavit on 7 April 2020, the Husband had not responded to the Wife's solicitors' correspondence of 30 March 2020. The Wife also deposed in paragraph 8 of the Wife’s Affidavit that she received correspondence from the Husband on 3 April 2020 at 9.30 am which included the following:
[…] The appeal is being organised. We be seeing this to the end (sic). I am grateful my extended family won’t stand for this injustice. The errors of law are documented in the last day of the transcripts. The only big winners in this is the $360,000 your lawyers have sucked out of you. Get a quote for next round.
The Wife deposed in paragraph 9 of the Wife’s Affidavit that she is in significantly constrained financial circumstances and that her income is less than her expenses. The Wife's net asset position is negative. Further, the Wife has incurred additional legal costs as a result of the Recovery Order application and this application.
Abridgement of Time
In determining to hear this enforcement proceeding expeditiously and to abridge time I have taken into account the Wife's difficult financial circumstances. The parties' respective financial positions were set out in paragraphs 404 to 444 of the Judgment delivered on 23 March 2020. The Judgment has otherwise considered in detail the parties' respective financial circumstances. In abridging time, I have also taken into account the fact that the Wife now has the primary care of the Children, without any financial contribution whatsoever from the Husband.
In abridging time, I have also taken into account the uncertainty caused by the fact that the State of Victoria is currently in a state of emergency, due to the COVID-19 pandemic. The state of emergency in this state was due to expire on 13 April 2020. It was extended on 12 April 2020 to 11 May 2020. This means that the Wife and the Children will be subject to the Stay at Home Directions issued from time to time, pursuant to s.200 of the Health and Wellbeing Act 2008 (Vic).
Further, children in the State of Victoria will not be returning to school at the commencement of Term 2, due to commence this week on 15 April 2020. Children in the State of Victoria will, subject to some exceptions, be required to remain at home and be educated by distance education for the whole of Term 2. X and Y will also be subject to these restrictions in Term 2.
Due to the developing situation with the COVID-19 pandemic, the Court does not know whether further restrictions on its ability to readily respond to applications of this nature will suddenly be implemented. For these reasons, I determined that this enforcement application should be heard expeditiously and time should be abridged.
Appeal and Stay
There is no application before the Court for a stay. The Court has not been notified that an appeal to the Family Court of Australia has been filed.
Disposition
The Husband has not provided any satisfactory explanation for his failure to comply with Order 27 of the Final Orders made on 23 March 2020.
Costs
The Court will deal with the costs of this application in the same manner as the costs of and incidental to the Recovery Order. The Court will hear submissions in relation to the costs of this application at the same time as the costs in the principal proceeding on 9 June 2020.
Orders
Pursuant to r.25B.61(c) of the Rules the Principal of the legal practice Bayside Family Law Solutions is directed to pay, as directed by the Wife, the monies held in trust by that firm in the joint names of the parties with an estimated balance of $206,731.24.
The Wife's costs of and incidental to filing the Application in a Case, dated 7 April 2020, be heard and determined together with the costs in the principal proceeding at the mention on 9 June 2020.
As a notation, for the avoidance of doubt, Order 1 is an Order of the Court of competent jurisdiction for the purposes of section 138(2) of the Legal Profession Uniform Law (Vic). Those are my reasons.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 27April 2020
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