Innes & Rankin
[2024] FedCFamC1F 529
•7 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Innes & Rankin [2024] FedCFamC1F 529
File number(s): BRC 2006 of 2023 Judgment of: JARRETT J Date of judgment: 7 August 2024 Catchwords: FAMILY LAW – ENFORCEMENT – Failure to comply with enforcement regime as required by the Rules – Application not necessary – Application dismissed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 8, 25, 50(2)(a), 51, 132, 149
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ch 11, Pt 11.1, Div 11.1.2 and Div 11.1.3, rr 11.01, 11.01(1)(a), 11.01(2)(f), 11.05, 11.06, 11.07. 11.07(a), 11.07(b), 11.08, 11.08(1)(d), 11.08(2), 11.10(1)(a), 11.10(1)(b), 11.10.2, 11.11(1), 11.11(2), 11.12(1), 11.13, 11.15(1), 11.15(1)(a), 11.15(1)(b), 15.21
Cases cited: Langer & Langer [2021] FedCFamC1F 49 Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 7 August 2024 Place: Brisbane Counsel for the Applicant: Mr Galloway Solicitors for the Applicant: AMG Law Firm Solicitors for the Respondent: Litigant in person ORDERS
BRC 2006 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR INNES
Applicant
AND: MS RANKIN
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
7 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application – Enforcement filed on 3 July, 2024 is 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application, described as an “Application – Enforcement” filed on 3 July, 2024. The application was listed to me at the request of a judge of the Federal Circuit and Family Court of Australia (Division 2).
When preparing for the hearing, it became apparent that there were jurisdictional problems. The “Application - Enforcement” does not identify in which court the application was filed. There is a check box at the top left-hand corner of the form approved pursuant to r 15.21 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that purports to specify the court in which the application was filed. However, beside the boxed checked by the applicant are the words “Federal Circuit and Family Court of Australia”. There is no such court. Those words reflect the confusion about the operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) notwithstanding that ss 8(1) and 8(2) of that Act preserve the separate existence of the Family Court of Australia (but to be known as the Federal Circuit and Family Court of Australia (Division 1)) and the Federal Circuit Court of Australia ( but to be known as the Federal Circuit and Family Court of Australia (Division 2)).
By reason of s 50(1) of the Federal Circuit and Family Court of Australia Act, a person must not institute family law or child support proceedings (other than appellate proceedings) in the Federal Circuit and Family Court of Australia (Division 1). Proceedings erroneously filed in that court are, by force of s 50(2)(a), taken to have been transferred to the Federal Circuit and Family Court of Australia (Division 2). The phrase family law or child support proceedings means proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under s 132 of the Federal Circuit and Family Court Act. Relevantly, s 132 provides that the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975 (Cth).
To reinforce the point, s 25 of the Federal Circuit and Family Court Act provides that the Federal Circuit and Family Court of Australia Act (Division 1) has original jurisdiction in matters being the subject of a family law or child support proceeding that is transferred to it either pursuant to s 51 of the Act (transfer by order of the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)) or s 149 of the Act (transfer by order of any judge of the Federal Circuit and Family Court of Australia (Division 2)).
Thus, it seems tolerably clear that the present application has not been filed in this court yet has been directed to be listed in this court without the necessary transfer order having been made.
I raised this issue with the parties and suggested that if each was amenable to the proposed course, I would approach the first judge of the Federal Circuit and Family Court of Australia (Division 2) I could find and ask them to make a transfer order so that all was not lost. The parties consented. I found a judge who was willing to make the transfer order instanter. The order was made. I returned to court, this time, fully clothed with jurisdiction.
The “Application – Enforcement” seeks the following orders:
1. That [Ms Rankin] born […] 1981 ("the Respondent"), last known to reside at [L Street] [Suburb J] QLD […], is declared to be liable to pay the sum of $13,458.06, together with interest thereupon, to [Mr Innes] born […] 1981 ("the Applicant"), who resides at [M Street], [Suburb N] QLD […].
2. That the Respondent is declared to be liable to pay the Applicant's costs incidental to this application on an indemnity basis.
3. That an Enforcement Warrant is issued against the Respondent for any outstanding sum owed to the Applicant, including the sum of $13,458.06, with interest thereupon, and the Applicant's costs in relation to this application on an indemnity basis.
4. That the Marshal of the Federal Circuit and Family Court of Australia, or their delegate, shall carry out the Enforcement Warrant referred to in Order 3, and that the Marshal shall further recover their reasonable fees and expenses of the enforcement from the Respondent.
5. That in the event that either party refuses or neglects to execute any Deed, document or instrument necessary to give effect to these Orders, a Judicial Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such Deed, document or any instrument in the name of the said party and do all acts and things necessary to give validity and operation to the Deed, document or any instrument upon the Judicial Registrar being provided with verification of such refusal or failure by way of affidavit.
Generally speaking, the application seeks to enforce an order made on 22 February, 2023 for costs fixed in the sum of $13,458.06.
THE ENFORCEMENT REGIME
The application seeks enforcement of an order to pay money. The order to pay $13,458.06 made on 22 February, 2023 is an obligation to pay money for the purposes of r 11.01(1)(a): rr 11.01(2)(a)(i) and 11.01(2)(f). The applicant may apply for the enforcement of the order: r 11.04(a).
Critically, by r 11.05:
An obligation to pay money may be enforced by one or more of the following enforcement orders:
(a)an order for seizure and sale of real or personal property, including under an Enforcement Warrant (see Division 11.1.3);
(b)an order for the attachment of earnings and debts, including under a Third Party Debt Notice (see Division 11.1.4);
(c)an order for sequestration of property (see Division 11.1.5);
(d)an order appointing a receiver (or a receiver and manager) (see Division 11.1.6).
Enforcement orders must state the information required by r 11.08. Specifically, r 11.08(2) provides that a statement about the total amount to be paid (required to be included in the enforcement order by r 11.08(1)(d)) must include:
(a) the amount owing under the obligation to pay money; and
(b) the amount of interest owing (if any); and
(c) any costs of enforcing the order.
Rule 11.07 provides that the court may make a number of orders, including an order “declaring the total amount owing under an obligation” (r 11.07(a)) and “stating that the total amount owing must be paid in full or by instalments and when the amount must be paid” (r 11.07(b)).
Division 11.1.2 deals with obtaining information to aid enforcement and prescribes methods for obtaining financial information from a respondent, namely:
(a)prior to applying for an enforcement order a payee may give a payer a written notice requiring the payer to complete and serve a financial statement within 14 days after receiving the notice (r 11.10(1)(a)) or alternatively a payee might apply to the court, without notice to the respondent, for an order that the payer complete file a financial statement or otherwise make disclosure of information relevant to the payer’s financial affairs (r 11.10(1)(b)). Such an application may be heard by a judicial registrar in chambers in the absence of the parties (r 11.10(2)).
(b)by filing an Application—Enforcement and an affidavit that complies with r 11.06, requiring the payer to attend an enforcement hearing (r 11.11(1)). The payee may require the payer to produce documents at the enforcement hearing that are in the payer’s possession or control and relevant to the enforcement application by serving a written notice as prescribed by the rules (r 11.11(2)); and
(c)request the issue of a subpoena to a witness for an enforcement hearing (rule 11.13)
A respondent summoned to attend an enforcement hearing must attend the hearing to answer questions and produce any documents required. They must at least seven days before the enforcement hearing, serve on the payee a financial statement setting out their financial circumstances (r 11.12(1)).
Division 11.1.3 deals with Enforcement Warrants. Significantly, a payee may, without notice to the payer, “ask” the court to issue an Enforcement Warrant. The process for “asking” the court to issue an enforcement warrant is by filing an affidavit (r 11.15(1)(a)) and the Enforcement Warrant sought and a copy of it for service (r 11.15(1)(b)).
Rule 11.15(2) provides for the content of the affidavit to be filed for the purposes of requesting the issue of an Enforcement Warrant. First, it must comply with rule 11.06. Next, it must include details of real property (if any) owned by the payer including evidence that the payer is the registered owner together with details of any encumbrances registered over the title to the relevant property. Finally, it must include details of the personal property owned by the payer including the location of the property and whether there is any other person who may have an interest in it.
Rule 11.06 provides:
If these Rules require a person seeking an enforcement order to file an affidavit, the affidavit must:
(a)if it is not required to be filed with an application—state the orders sought; and
(b)have attached to it a copy of the order or agreement to be enforced; and
(c)set out the facts relied on, including the following:
(i)the name of the payee;
(ii)the address of the payee, unless disclosing this address would compromise the payee’s safety;
(iii)the name and address of the payer;
(iv)that the payee is entitled to proceed to enforce the obligation;
(v)that the payer is aware of the obligation and is liable to satisfy it;
(vi)that any condition has been fulfilled;
(vii)details of any dispute about the amount of money owed;
(viii)the total amount of money currently owed and any details showing how the amount is calculated, including interest (if any) and the date and amount of any payments already made;
(ix)what other legal action has been taken in an effort to enforce the obligation;
(x)details of any other current applications to enforce the obligation; and
(xi)the amount claimed for costs, including costs of any proposed enforcement; and
(d)be sworn no more than 2 days before it is filed.
Thus, it can be seen that Part 11.1 of the rules establishes a regime for, amongst other things, the enforcement of orders for the payment of money. Part 11.1 provides a mechanism whereby a person entitled to be paid money can obtain information about the financial circumstances of the person obliged to pay the money and, if necessary, a payer can be brought to court and examined under oath as to their financial circumstances. Armed with information about the payer’s financial circumstances, a payee can then make a decision about the way in which the obligation might best be enforced having regard to the four types of enforcement orders that are prescribed by r 11.05.
THE PRESENT APPLICATION
Counsel for the applicant agreed with my suggestion that order 1 sought in the “Application – Enforcement” was unnecessary. There is already in place an order requiring the respondent to pay the applicant the sum specified in the order. Counsel suggested however that the order was desirable so that the amount of interest to be paid by the respondent to the applicant could be fixed. However, that is unnecessary given that in an affidavit filed to support an application for an enforcement warrant, an applicant is obliged to provide their own calculation of the interest due on the unpaid financial obligation.
Before me, the applicant relied upon an affidavit sworn by him and filed on 3 July, 2024. The affidavit does not comply with r 11.06 in that it does not set out:
(a)the total amount of money currently owed and any details showing how the amount is calculated, including interest (if any) and the date and amount of any payments already made;
(b) that the payee is entitled to proceed to enforce the obligation;
(c)what other legal action has been taken in an effort to enforce the obligation;
(d) details of any other current applications to enforce the obligation; and
(e)the amount claimed for costs, including costs of any proposed enforcement.
To some extent, the shortcomings are ameliorated by a schedule handed up during the hearing by counsel for the applicant. It provides the calculation for interest and sets out the costs claimed for the application for enforcement. However, the calculations and amounts in the schedule are not sworn as required by the rules.
Counsel for the applicant accepted that there was a mechanism provided for in the rules for an application, without notice to the respondent, for the issue of an enforcement warrant. Beyond seeking a declaration as to the amount owing, there was no explanation offered for not following the procedure set out in Part 11.1 of the Rules.
When queried about whether the applicant was seeking an enforcement hearing and to examine the respondent about her financial circumstances, I was told that that was not the case and that all was required was a declaration as to the amount owed, the issue of the enforcement warrant and an order for the costs of the application.
DISPOSITION
The application will be dismissed. It is wholly unnecessary.
A declaration as to the amount owed by the respondent to the applicant is unnecessary. The amount to be paid by the respondent to the applicant is stated in the order the applicant wishes to enforce. A calculation as to interest should have been included in his affidavit filed in support of the issue of the enforcement warrant and that, together with costs of the application for the Enforcement Warrant as prescribed ($705.47), would have been all that was needed to give specificity to the debt to be stated in the Enforcement Warrant. This is not a case where, for example, an order has been made for one party to meet a recurrent financial obligation, such as mortgage repayments, and has failed to do so. In such cases, a declaration as to the amount owing by the payer to the payee may be entirely appropriate (see for example Langer & Langer [2021] FedCFamC1F 49).
The applicant seeks an order for his costs of the present application fixed in the sum of $7,036.05. However, there is no adequate explanation for the need for the application at all. One wonders why he would spend $7,036.05 instead of a sum almost 10 times less than that to achieve the same end.
I have considered whether I can exercise the power provided in r 1.31 to dispense with compliance or full compliance with the Rules and treat the “Application – Enforcement” as a request for the issue of an Enforcement Warrant under r 11.15(1). I decline to do so because the affidavit filed in support of the application does not meet the requirements of r 11.06 and so there is no sworn testimony about the matters I have already identified as absent from the applicant’s affidavit. Further, the Enforcement Warrant sought (and a copy of it for service) has not been filed (nor even tendered during the hearing) as required by r 11.15(1)(b).
The Application – Enforcement filed on 3 July, 2024 is dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 7 August 2024
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