Lane and Lane

[2018] FCCA 1436

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANE & LANE [2018] FCCA 1436

Catchwords:
FAMILY LAW – Property adjustment orders– non-compliance by Respondent - application for contravention – non-attendance at contravention hearing despite notice of application and prior correspondence – warrant for issue of arrest of the Respondent.

Legislation:

Family Law Rules 2004, r.21.02

Federal Circuit Court Rules 2000, rr.6.14, 25B.03

Applicant: MS LANE

Respondent: MR LANE

File Number: BRC 972 of 2016

Judgment of: Judge Egan

Hearing date: 31 May 2018

Date of Last Submission: 31 May 2018

Delivered at: Brisbane

Delivered on: 31 May 2018

REPRESENTATION

Counsel for the Applicant: Mr Waterman

Solicitors for the Applicant: Davey Law

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

Arrest Warrant

1. That pursuant to Rule 25B.03 of the Federal Circuit Court Rules 2001, a Warrant shall issue to the Marshal and to all members of the Australian Federal Police and of all State and Territory police forces to arrest MR LANE born on 1971 and to bring him before this Court on the first day on which the Court shall sit next after the arrest of MR LANE or as soon thereafter as practicable.

Service

1. That, pursuant to Rule 6.14 of the Federal Circuit Court Rules 2001, the lawyer for the Applicant shall forthwith serve upon the Respondent by way of substituted service via email:

   (a)A copy of this Order;

   (b)The reasons for the making of these Orders.

General Orders

1. That costs of and incidental to this application be reserved.

2. That the matter be adjourned to Judge’s Chambers.

3. That each party have liberty to apply on the giving of 3 days’ notice, each to the other.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 972 of 2016

MS LANE

Applicant

And

MR LANE

Respondent

REASONS FOR JUDGMENT

1. I have before me an application for contravention filed pursuant to Rule 21.01 of the Family Law Rules 2004. The Applicant is the wife in the proceedings. The Respondent husband is a (occupation omitted) in the (employer omitted).  On 21 September 2016, a consent order was made by His Honour Judge Vasta in Chambers concerning property matters between the two parties.

2. On 20 September 2016, a letter had been sent by the wife’s lawyers to the associate to His Honour Judge Vasta, such letter confirming that Davey Law acted on behalf of the Applicant wife, and that Certus Legal Group acted on behalf of the Respondent husband. The letter was jointly signed by Justine Dean on behalf of Davey Law and by Todd Green on behalf of Certus Legal Group.

3. By that letter, a proposed draft order was sent to the Chambers of His Honour Judge Vasta. The proposed draft orders, once submitted, became the orders as made by His Honour Judge Vasta on 21 September 2016. I am accordingly satisfied that the orders as made were made with the knowledge and consent of the Respondent in circumstances where his retained lawyer consented, on his behalf, to the submission of a draft consent order to the associate of His Honour Judge Vasta. It must be inferred that such solicitor did so with authority, and accordingly, I so infer that Mr Todd Green of the Certus Legal Group signed the letter dated 20 September 2016 with the authority of the Respondent.

4. Paragraph 9(b) of the Order of Judge Vasta provided as follows:

   “The Respondent shall do all such acts and things and sign all such documents as may be required to obtain and deliver a discharge of and indemnify the Applicant against Bank 1 loan account number”

5. Mr Waterman of Counsel, on behalf of the wife, today tendered to me two interim statements of account in the joint names of the Applicant and Respondent, being in respect of a loan account numbered, namely the same account as is the subject of Order 9(b) of the Order of Judge Vasta made on 21 September 2016. Helpfully, Mr Waterman was able to tender one statement which recorded transactions on the account between 27 May 2017 and 28 November 2017. That statement records that as at 28 November 2017, there was a debit balance on the account in the amount of $33,541.24. 

6. The second interim statement of account handed to me by Mr Waterman was in respect of the same supplementary loan account in the joint names of the Applicant and Respondent for the period from 29 May 2018 to 30 May 2018.  The debit balance showing on such account as at 30 May 2018 was in the amount of $32,030.12. I admitted those two statements into evidence and marked them as Exhibit 1. 

7. When looking at such statements, it is clear that in respect of loan account number there has been no discharge of such loan. The most recent statement still records each of the Applicant and the Respondent as borrowers next to the words “Account Names” on such statement.

8. The wording of Order 9(b) of the Order of Judge Vasta made on 21 September 2016 is, to my mind, clear and unambiguous, and can only convey to the mind of a reasonable person that the order required the Respondent to discharge the loan by whatever means so as to enable it to be recorded that there was a nil balance in respect of such loan. Had that been done by the Respondent then in the normal course of events, the Bank 1 would have released at least the Applicant from further liability under the loan. That clearly is not the case.

9. The Applicant, in her material, asserts that she wants a clear title to the property situated at Property A in the State of Queensland (as provided for in Paragraph 9 and, in particular, 9(a), of the Order of Judge Vasta made on 21 September 2016).  But, she states that because Loan Account Number has not been paid out, she is unable to obtain such clear title to her property.

10. She also complains that she has met with no response from the Respondent, notwithstanding that the Respondent has been served with the Application for Contravention filed on 20 April 2018 together with her Affidavit filed on 20 April 2018.  As to her Affidavit, Annexure L-1 is a copy of the Order of Judge Vasta made on 21 September 2016.  Annexures L-2, L-3 and L-4 constitute letters and emails sent by the Applicant’s lawyers to the Respondent encouraging him to sign and return discharge authority forms in respect of Loan Account Number. 

11. The Applicant deposes that the Respondent has not replied to any of the correspondence directed to him. There is evidence that both the Application for Contravention and the Affidavit of the Applicant each filed on 20 April 2018 have been served upon the Respondent. In that regard, I refer to the Affidavit o Service of Mr P sworn 30 May 2018.  I have been provided with a copy of such Affidavit on the undertaking that the original of such Affidavit of Service will be filed in due course, and on the basis of such undertaking, I grant to the Applicant leave to read and file such affidavit of Mr P.

12. The Affidavit deposes to the Respondent having been served with such documents on 29 May 2018 at 3.00pm.  Had it been the case that attempts to require the Respondent to comply with the Order of His Honour Judge Vasta had not been made from as far back as 28 August 2017 on a number of different occasions up until 11 March 2018, I would have considered that service upon the Respondent of the documents in question on 29 May 2018 at 3.00pm would have been short-service.  However, because of the history of the matter and the protracted period of time over which the Respondent has failed to either reply to the Applicant’s solicitors or otherwise comply with the terms of the Order made by Judge Vasta, I am not inclined to grant to the Respondent any further indulgence by way of an adjournment of the subject application.  Such course would only further increase the cost burden imposed upon the Applicant by reason of the Respondent’s inaction.

13. Rule 25B.03 of the Federal Circuit Court Rules 2001, provides as follows:

    “If a Respondent fails to attend a hearing of the application in person or by a lawyer, the Court may:

    
    

    (a) determine the proceeding; or

    
    

    (b) issue a warrant for the respondent’s arrest to bring the respondent before a court; or

    
    

    (c) adjourn the application”

14. By sub-paragraph (b) of such rule, I have power to issue a Warrant for the Respondent’s arrest to bring the Respondent before the Court in circumstances where he has failed to attend the hearing of the Application for Contravention. This is one such case where the Respondent has failed to attend the hearing and where, in all of the circumstances, I consider it appropriate that the Respondent be the subject of the issue of a warrant for his arrest so as to bring the Respondent before the Court.  One can only hope that if the warrant is executed, that the Respondent will have something positive to contribute to the finalisation of the proceedings, though that is not the sole reason for my having made an order for the issue of such warrant.  It seems that the Respondent will only take action to respond to the present application if a warrant for his arrest is issued.. 

15. Accordingly, I order that pursuant to 25B.03 of the Federal Circuit Court Rules 2001, a warrant shall issue to the Marshal and to all members of the Australian Federal Police and all State and Territory police forces to arrest MR LANE born on 1971 and to bring him before this Court on the first day of which the Court shall sit next after the arrest of MR LANE or as soon thereafter as is practicable. 

16. That the lawyers for the Applicant forthwith serve upon the Respondent by way of substituted service via email:

    a)A copy of this Order; and

    b)The reasons for the making of these Orders.

17. I order that the costs of and incidental to this application be reserved. 

18. I further order that each party have liberty to apply on the giving of three (3) days’ notice, each to the other.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 7 June 2018