Jessep and Phelp
[2014] FCCA 2052
•11 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JESSEP & PHELP | [2014] FCCA 2052 |
| Catchwords: FAMILY LAW – Enforcement of costs order, third party debt notice, likelihood of recovery of debt – compliance with Rules of Court – considerations regarding exercise of Court’s discretion. |
| Legislation: Family Law Act 1975, s.105 Family Law Rules2004, Schedule 3 Part 4 |
| Humane Society International Inc v Kyodo Senpaku Kaisha [2004] FCA 1510 Ramsey & Ramsey (1983) FLC ¶91-301 |
| Applicant: | MS JESSEP |
| Respondent: | MR PHELP |
| File Number: | CAC 977 of 2010 |
| Judgment of: | Judge Neville |
| Hearing date: | On the papers |
| Date of Last Submission: | 20 November 2013 |
| Delivered at: | Canberra |
| Delivered on: | 11 July 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Solicitors for the Respondent: | Self represented |
ORDERS
The Court grants leave to the Mother to file an Amended Third Party Debt Notice within 14 days of the date of these orders (and thereupon signed by the Registrar upon filing). That Notice shall be for the following amounts: amount owed: $1,115.00; interest $59.29; costs of the application $250.00;
The Court dispenses with the requirement that an affidavit be filed at the same time as the Amended Third Party Debt Notice referred to in Order 1 of these Orders;
Absent the filing of an Amended Third Party Debt Notice within 14 days, all outstanding applications will be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Jessep & Phelp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 977 of 2010
| MS JESSEP |
Applicant
And
| MR PHELP |
Respondent
REASONS FOR JUDGMENT
Introduction & Background
This matter has a lengthy history. The following is little more than a potted summary.
Final parenting orders were made by consent on 13th September 2012 in relation to the child X (as he was then known).
Those orders provided that both parties would do all things and sign all documents required to change the name of the child to include the surname of the Mother, whereby the child would become registered (with the Registrar of Births, Deaths and Marriages) as X.
I note here that at the time the final parenting orders were made by consent, both parties were legally represented; the Applicant Father by Legal Aid ACT; the Mother by a private firm.
The matter was revived by an Application filed by the Mother on 28th November 2012 which related to the change of the child’s name. The Father resisted this Application.
The matter came before the Court on 11th February 2013 at which time the Mother was still represented, though the Father was now self-represented.
The Father submitted that he did not wish the child’s name to be changed as it was the only remaining connection he had to/with the child, and the child to/with him.
At this point I note the following:
a)The parenting orders of September 2012 provided that the Father could spend supervised time with the child should he be able to provide urinalysis results for THCCOOH less than 400ug/L and that this supervised time would take place at the (omitted) Contact Centre;
b)The parties confirmed that in accordance with the conditions of the September 2012 orders the Father was not currently spending any time with the child; and
c)It was clearly indicated to the Father in February 2013 that his surname would not be removed from the child’s name, it was simply a matter of including the Mother’s surname.
Despite the further clarification and discussion of the proposed change to the child’s name the Father did not change his position and indicated that if an order was made to authorise the Registrar to sign relevant papers on his behalf he would consider “suing for fraudery [sic]”.
Orders were pronounced at this time which provided that the Registrar of Births Deaths and Marriages be requested to accept the change of name application in circumstances where only the Mother had signed the form, or otherwise that the Registrar of this Court be appointed to sign the application in the name of the Father.
There was a further order that the Respondent pay the Applicant’s costs of and incidental to the November 2012 Application.
The Mother subsequently filed a further Application in a Case, received in the Registry on 20th June 2013, bearing the filing date of 25th June 2013 and supported by an affidavit sworn by the Mother’s solicitor (also sworn 20th June 2013 and filed 25th June 2013). The affidavit sets out the steps taken to recoup the costs in accordance with the orders of 11th February 2013 and the lack of response from the Father.
At the time of filing the Application in a Case the amount owed, as submitted by the Mother, through her solicitor, totalled $1,150.19 (including interest).
The Application in a Case sought the following orders;
1)That the Respondent complete, file and serve a Financial Statement in accordance with the approved form within 14 days.
2)That the Respondent provide to the solicitors for the Applicant a copy of all his bank statements, including credit card statements, for the period 1 January 2012 to present within 14 days.
3)That the Respondent pay the Applicant’s costs of this Application.
4)That in the event the Respondent does not comply with Orders 1 and 2 then an Enforcement Warrant be issued.
The Application came before the Court on 12th August 2013. The Father once again represented himself. The Father submitted he did not have the financial capacity to meet the costs as sought but agreed to file a financial statement and provide bank statements to the Mother’s solicitor.
Orders were made in accordance with orders 1) and 2) as sought by the Mother (noted above), with costs being reserved.
The matter returned to Court on 10th September 2013. In the interim, the Father had failed to comply with the orders to provide the financial disclosure as sought by the Mother. He failed to attend Court on this occasion.
The solicitor for the Mother confirmed that a bank statement had been provided by the Father but that further requests had not garnered a response.
At this stage there was a frank exchange between the Bench and the Mother’s solicitor (a solicitor who did not usually attend Court in this particular matter) about the utility (or futility) of prolonging the litigation. The Mother’s solicitor confirmed she would seek instructions, within a 21 day timeframe, as to whether the Application in a Case would be pressed.
Seemingly in response to the Orders of 10th September 2013 (and the discussion in Court on 10th September 2013), on 23rd September 2013 the Mother’s solicitors filed a Third Party Debt Notice. Obviously, the answer to the Court’s question, on a cost-benefit analysis, was in the negative – that is, the Mother and her solicitor clearly believe that it was/is an appropriate use of resources (theirs and the Court’s) to pursue outstanding costs of $1150.19 from the Father who patently relies upon social security benefits. All the while, of course, very large numbers of other matters scream out for judicial attention and other curial resources.
All of this is also to say that, on a cost-benefit analysis and/or from a case management perspective, this matter has consumed a disproportionately large amount of the Court’s resources over a significant period of time, particularly when compared to (a) the large number of other [pressing] matters that command/demand the Court’s attention, and (b) the amount of money being pursued. Perhaps it is also a case of the Mother’s solicitors, who are otherwise very well known for their “energetic” pursuit of matters, in this instance being particularly “public spirited” in acting for a Mother who presumably has little or no income, against a Father who, over the years, clearly has evidenced having issues in relation to drugs and violence, and perhaps some mental health issues, and who also patently has little prospect (at least any time soon) of having any relevant income, other than in the form of Centrelink benefits.[1]
[1] En passant the Court might also be forgiven at [metaphorically] quaking at the thought not only of how many judicial and curial resources this matter has consumed but also, from the perspective of a private firm, the time and resources spent on the matter compared to the likely commercial “return” to the firm.
Further, on 14th November 2013 an affidavit affirmed by the Mother was also filed. This affidavit outlined the further attempts made to engage the Father to provide his financial information to the Mother and to the Court. Annexed to this affidavit is the single (omitted) bank statement previously provided by the Father.
The Mother stated in her affidavit that, with the accrued interest, as well as costs sought for the most recent Application, the Father now owed the Mother the [prodigal] sum of $1,736.95. I should not, of course, be taken to make light of the importance of parties complying with Court orders.
On 18th November 2013 the Court wrote to the solicitor for the Mother to seek comment on the apparent disjuncture between their Application in a Case and the Third Party Debt Notice.
The solicitor for the Mother responded, submitting that the disjuncture between the Application in a Case and the Third Party Debt Notice was “only apparent; not real.” Perhaps this was/is an ontological distinction that needs further exploration, given that, according to the Mother, the distinction was only “apparent”.
In any event, the solicitor suggested that the Court was able to make orders in Chambers in relation to the debt notice on the evidence provided, thus (a) the costs of the initial Application in a Case (“the Change of Name Application”) to be recouped via the Third Party Debt Notice and (b) an order for costs in favour of the Applicant for the [further] Application in a Case (“the Enforcement Application”) which will/would also be recouped via the same Third Party Debt Notice.
Finally, the solicitor for the Mother submitted that (a) order 1 as sought in the Application in a Case (seeking the filing of a financial statement) was not [now] pressed, (b) order 2 had been complied with (the production of a bank statement), (c) order 3 was pressed (which sought that the Father pay the other’s costs of the Application in a Case), and (d) order 4 was not pressed (which sought that an enforcement warrant issue in the event that orders 1 & 2 were not complied with).
I should also mention that the Mother submitted that the costs of the Application in a Case can and should be dealt with by the Court, in Chambers, on the “evidence currently filed.” It was also submitted that the “enforcement of that Order is respectfully sought and pressed via the Third Party Debt Notice.”
As earlier noted, the Third Party Debt Notice was filed on 23rd September 2013. Among other things, it claimed costs of $558.07, pursuant to Schedule 3, Part 4 of the Family Law Rules. It is apposite to record here that there is a separate Schedule of fees that applies in this Court, pursuant to the Rules of this Court (Schedule 1, Part 1). Given that the proceedings have been conducted exclusively in this Court, one would have thought that the Rules of this Court ought apply. That being so, the figure claimed for costs under the Family Law Rules is both inapt and inaccurate, vis-à-vis this Court’s Rules. The Schedule of fees is different in each Court’s Rules; not by much admittedly, but different nonetheless.
Somewhat curiously, in the Mother’s affidavit filed on 14th November 2013, she deposed, at par.10, that the costs she claimed were pursuant to the Federal Circuit Court Rules, but the amount is in fact that which is contained, not in the Rules of this Court, but in the Family Law Rules.
Finally, I note that s.109B Family Law Act1975 refers specifically to the power of this Court to make rules which relate to enforcement. It is time to refer to the regime of enforcement provided for by the Rules of this Court.
Disposition
First, I should note that, although in a slightly different statutory context, matters of enforcement are, in the end, essentially discretionary exercises of power by the Court.[2] For example, courts will usually not make orders that are considered futile.
[2] Generally, see Ramsey & Ramsey (1983) FLC ¶91-301.
Indeed, (accepting the repetition of the point) is not the first time that the Court has noted the following case and principle enunciated in it to the solicitors who act for the Mother in this matter. In other proceedings in which they were involved I noted that it has long been the practice of Courts not to make orders where to do so would be utterly futile. Allsop J (as his Honour once, and then, was) discussed this judicial principle or practice in Humane Society International Inc v Kyodo Senpaku Kaisha.[3] At [70], his Honour said: “The Court will not make futile orders. Whether or not they are futile may depend upon many matters, including but far from limited to the attitude of persons who are not present before the Court.”
[3] [2004] FCA 1510.
Notwithstanding that clear statement of principle, some solicitors (as is their prerogative) continue regularly to press for orders for costs (where most other firms do not), and/or to seek to enforce costs orders even in circumstances where the evidence clearly suggests that the prospect of securing any funds must be considered to be extremely remote.
Secondly, because the Rules of this Court were either not relevantly referred to in submissions (apart from a passing reference in an affidavit of the Mother’s to which I have referred), or because there was apparent reliance on the Family Law Rules, it is appropriate that I set out the proper process in accordance with the Rules of this Court.[4]
[4] Unless otherwise required, all references hereafter should be taken to be to the Federal Circuit Court Rules 2001.
Rule 25B.11 details the general means by which an obligation to pay money may be enforced. A Third party Debt Notice is part of that armoury. The general enforcement powers of the Court are then set out in r.25B.13. I need not detail or otherwise set out either of these Rules.
Rule 25B.40 provides as follows (emphasis added):
25B.40 Request for Third Party Debt Notice
(1) A payee may, without notice to the payer or third party, ask the Court to issue a Third Party Debt Notice requiring the payment to the payee of any money to which this Subdivision applies by filing:
(a) 3 copies of the Third Party Debt Notice; and
(b) an affidavit.
(2) The affidavit must:
(a) comply with rule 25B.12; and
(b) include the following information:
(i) the name and address of the third party;
(ii) details of the debt to be attached to satisfy the obligation, including its nature and amount;
(iii) the information relied on to show that the debt is payable by the third party to the payer;
(iv) if it is sought to attach the payer’s earnings:
(A) details of the payer’s earnings; and
(B) details of the payer’s living arrangements, including dependants; and
(C) the protected earnings rate; and
(D) the amount sought to be deducted from the earnings each payday; and
(E) any information that should be included in the Third Party Debt Notice to enable the employer to identify the payer.
In terms, this Rule clearly requires the filing of an affidavit at the same time as the filing of the Third Party Debt Notice.
On the facts of this matter, the Third Party Debt Notice was filed on 23rd September 2013. No affidavit was filed with it in accordance with the Rules. The Mother filed an Affidavit on 14th November 2013, and earlier on 2nd August 2013.
As already noted, there has not been strict or complete compliance with Rule 25B.40. In such circumstances, the Third Party Debt Notice as filed is defective.
There is, of course, in r.1.06, a general power of the Court to dispense with compliance with the Rules of Court either in part or in full.
Leaving to one side that the orders proposed by the Court may ultimately be futile in their practical effect, a matter to which I have adverted earlier in these reasons, nonetheless, in all of the circumstances, I propose firstly to dispense with the requirement that an affidavit be filed at the same time as the Third Party Debt Notice.
I also propose to dispense with the requirement that the relevant Schedule to this Court’s Rules be used as the measure of costs, as opposed to the Family Law Rules, which have been the [incorrect] point of reference for the Mother. More generally, I note that r.21.02 gives a wide discretion to the Court to fix an amount for costs, which course I propose to follow.
Having regard to the fact that the Father is on Centrelink benefits, in my view, the Court should fix an amount of costs, in accordance with r.21.02(2)(a). That sum shall be in the amount of $250.00.
Accordingly, because the current Notice is defective for the reasons given, the Court grants leave to the Mother whereby she be permitted to file an Amended Third Party Debt Notice within 14 days of the date of these orders (and thereupon signed by the Registrar upon filing). That Notice shall be for the following amounts: amount owed: $1,115.00; interest $59.29; costs of the application $250.00. No further affidavit need be filed with that Notice.
Absent the filing of the said Notice within 14 days, all outstanding applications will be dismissed.
The Court so orders.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 4 September 2014
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