Kent and Kent

[2008] FMCAfam 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENT & KENT [2008] FMCAfam 127

FAMILY LAW – Property – enforcement of consent orders – whether payment made in accordance with agreement made subsequent to consent orders – non-compliance not established – whether application for summary dismissal should be granted – application for security for costs – application to re-open applicant’s case at conclusion of respondent’s case – all applications dismissed – leave to make written submissions as to costs.

Family Law Act 1975, s.4(1)(ca)

Bourke & Bourke (No. 2) (1994) FLC 92-479
IC & WP [2006] FamCA 941
Kerr & Kerr (1983) FLC 91-329
Limousin & Limousin (Security for Costs) [2007] FamCA 1179
Ramsey (1981) FLC 91-301
Smith v New South Wales Bar Association (1992) 176 CLR 256
Thwaitev Thwaite (1981) 2 All ER 789

Applicant: MR KENT

Respondent: MS KENT

File number: WOC 640 of 2007

Judgment of: Altobelli FM

Hearing date: 29 January 2008

Date of last submission: 29 January 2008

Delivered at: Sydney

Delivered on: 22 February 2008

REPRESENTATION

Solicitor – Advocate for the Applicant: Mr Fernie

Solicitors for the Applicant: Rita Thakur and Associates

Counsel for the Respondent: Mr Levy

Solicitors for the Respondent: Dignan and Hanrahan

ORDERS

1. The husband's application filed 30 May 2007 is dismissed.

2. The Respondent’s written submissions as to costs must be filed and served within 14 days, such submissions not to exceed 500 words in length.

3. If the Applicant opposes the Application for Costs he must file and serve any written submissions in reply within 28 days, such submissions not to exceed 500 words in length.

IT IS NOTED that publication of this judgment under the pseudonym Kent & Kent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

WOC 640 of 2007

MR KENT

Applicant

And

MS KENT

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in this case was Mr Kent, and the respondent his wife Ms Kent.  The husband's application was to enforce orders for property settlement that were made by consent in the Local Court at Bxxx on 7 May 2003.  In effect, the husband asserts that there is a payment outstanding to him pursuant to those orders and that he should receive interest on the amount outstanding.  In the wife's response she asks for an order that the husband's application be dismissed, and that he pay her costs.  She says, in effect, that all monies payable by her to the husband have been paid.  The amounts in question were relatively small, having regard to the cost of this litigation.  The husband alleged that $4,779 was outstanding, and the amount of interest that had accrued on that amount under the Family Law Rules was $2,718.80.  Hence, the total amount claimed by the husband was $7,497.80.  In addition, the husband sought an order that the wife pay his costs which he was able to quantify at $7,590.  In other words, this is an example of a case where the…