Langer & Langer
[2021] FedCFamC1F 49
•15 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Langer & Langer [2021] FedCFamC1F 49
File number(s): BRC 12799 of 2020 Judgment of: CAREW J Date of judgment: 15 September 2021 Catchwords: FAMILY LAW – PROPERTY – Enforcement – Where the wife seeks a declaration of the total amount owing under the obligation as created by an order of the court – Where it is not in dispute that the husband has not met his obligations and a declaration is made as sought by the wife.
1 FAMILY LAW – PROPERTY – Where the wife argues that the husband should not be heard on his application to sell the former matrimonial home in circumstances where the husband has not complied with an order to pay the mortgage repayments – Where the husband argues he has done his best to comply with the order – Where the husband has made no attempt to comply and provides no explanation for the delay in making mortgage repayments – Where the husband will not be heard on his application – Where the application to sell the home is dismissed.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Cases cited: Kachmarik v Gebel (2019) FLC 93-927
Watson v Watson (2013) FLC 93-530
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 10 September 2021 Applicant: In person Counsel for the Respondent: Mr Linklater-Steele Solicitor for the Respondent: Michael Lynch Family Lawyers Solicitor for the Independent Children's Lawyer: No appearance ORDER
BRC12799 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LANGER
Applicant Husband
AND: MS LANGER
Respondent Wife
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
15 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The wife be granted leave to further amend her further amended Application in a Case filed 11 June 2021 by substituting the order sought therein with the order sought in her Outline of Case Document (Interim Hearing) filed on 3 September 2021.
2.Paragraphs 3, 6 and 11 of the order sought by wife in her Outline of Case Document (Interim Hearing) filed on 3 September 2021 be adjourned for determination at the final hearing.
3.Within 14 days of the date of this Order, at a time and date to be agreed between the parties in writing, a third party nominated by the husband (with the name of the third party to be told to the wife via email from the husband at least three (3) days prior to the date for collection) collect from the former matrimonial home located at B Street, Suburb C in the State of Queensland (“Suburb C property”) the items set out in the following paragraph/sub-paragraph of the husband's Initiating Application filed 16 September 2020: 52(f), 52(g), 52(i), 52(j), 52(k), 52(m)(i) - (iii) and 52(m)(viii).
4.It is declared that the husband is in default of paragraph 18 of the order made by his Honour Judge Jarrett in the Federal Circuit Court of Australia on 27 November 2020 and that the arrears owing to the Commonwealth Bank of Australia pursuant to that order and secured by way of mortgage on the Suburb C property as at 10 September 2021 is the sum of $15,931.71.
5.The wife’s costs of and incidental to her application for enforcement of the order made on 27 November 2020 be reserved to the trial Judge.
6.All interim applications be otherwise dismissed.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Langer & Langer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Mr Langer (“the husband”) and Ms Langer (“the wife”) are in dispute about financial matters regarding their property. There are competing interim applications before me for determination. The husband is seeking the sale of the former matrimonial home situated at B Street, Suburb C in the State of Queensland (“Suburb C property”) and the wife is seeking to enforce an order made on 27 November 2020 that the husband pay the mortgage.
On 9 July 2021 the order sought by the wife (in relation to financial matters) set out in her further amended Application in a Case filed 11 June 2021 and paragraphs 51 and 52 of the interim order sought in the Initiating Application filed by the husband on 16 September 2020 were adjourned for hearing in the Judicial Duty List before me on 10 September 2021.
A preliminary issue arose at the commencement of the hearing, namely, whether or not the husband should be heard on his application, in circumstances where he has failed to comply with the order made on 27 November 2020. I refused to hear the husband on his application and indicated my intention to provide reasons at a later time. My reasons are incorporated below.
The husband’s application for a sale of the Suburb C property (paragraph 51 of the interim order sought by him) will be dismissed. There was some agreement between the parties in relation to paragraph 52 of the interim order sought by the husband and an order will be made in those terms but otherwise dismissed.
The wife was granted leave to further amend her further amended Application in a Case filed 11 June 2021 by substituting the order sought therein with the order sought in her Case Outline filed 3 September 2021. Ultimately, the wife did not press paragraphs 1, 4, 8, 9 and 10 and agreed that paragraphs 3, 6 and 11 should be adjourned to the final hearing.
In relation to the enforcement application in paragraph 5 of the order sought in her Case Outline, the wife presses only for an order declaring the arrears to be $15,931.72, whereupon she will later seek the issue of a Third Party Debt Notice to the husband’s employer, D Company, seeking to recover the arrears from the husband’s wages. The parties agree that the current mortgage arrears are $15,931.72.
BRIEF BACKGROUND
The husband is 42 years of age and employed full time as a professional for the D Company.
The wife is 41 years of age and engaged full time in home duties.
The husband and wife were married in 2008 having commenced cohabitation in 2004. They separated in December 2019.
There are three children of the marriage. X is 11 years of age, Y is 8 years of age and Z is 6 years of age. The children live with the wife in the Suburb C property, and spend time with the husband who lives with his parents.
The wife wishes to relocate to New Zealand with the children and it is for this reason that the matter was transferred to this Court.
The property of the parties or either of them is said by the wife to comprise net property (including superannuation) of about $409,512, including the Suburb C property which the parties estimate to be worth $650,000 to $670,000. The Suburb C property is subject to a mortgage of about $416,000 and the mortgage repayments are about $660 per week.
On 27 November 2020 his Honour Judge Jarrett found that the wife had a need for spousal maintenance and that the husband had the capacity to pay in circumstances where the husband’s rent of $400 paid to his parents was disregarded as not being a payment that should take priority over the wife’s need for maintenance. The husband’s income was found to exceed his expenditure by at least $650 and accordingly an order was made that the husband make the mortgage repayments.
It is common ground that the husband made no repayments on the mortgage from the date of the order until 18 June 2021 when the husband commenced to pay $400 per week. It is also common ground that the husband has continued to pay rent to his parents of $400 per week.
Further, the husband has recently disclosed in the proceedings, a loan agreement purportedly entered into between himself and his father dated 1 February 2020 recording a promise by the husband’s father to lend $50,000 to the husband “for the sole purpose of payment for legal bills” and that when the $50,000 limit has been reached the husband may request an increase. The loan is said to be required to be paid on an unspecified date in January 2023. The wife contends that the husband has provided no disclosure evidencing the payment of any funds despite the husband’s Financial Statement filed 21 May 2021 recording a loan owing to his parents (as opposed to his father) of $35,000. The husband is currently self-represented in the proceedings.
DISCUSSION
An order for the payment of money is an enforceable obligation that can be enforced pursuant to r 11.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
An obligation to pay money may be enforced by an order for the attachment of earnings and debts, including a Third Party Debt Notice (r 11.05). The wife does not seek anything other than a declaration of the total amount owing under the obligation and it is her intention to then apply to the Court for the issue of a Third Party Debt Notice against the husband’s employer, D Company. According to the husband’s pay slip for the period 19 April 2021 to 25 April 2021, his net weekly income is $1,493.33.
Pursuant to r 11.07 the general powers of the Court include the power to make an order declaring the total amount owing.
Conclusion – declaration
In circumstances where it is not in dispute that the husband has not met his obligations under the order made on 27 November 2020 and that the current mortgage arrears are $15,931.72, I have no difficulty making the declaration as sought by the wife.
APPLICATION TO SELL THE SUBURB C PROPERTY
The wife argued that the husband should not be heard on his application to sell the Suburb C property (an application which was not pressed by the husband before Judge Jarrett on 27 November 2020 but for some reason not dismissed), in circumstances where the husband has not complied with the order to pay the mortgage repayments. As to the applicable principles, reliance was placed upon Kachmarik v Gebel[1] where the Full Court of the Family Court of Australia (“the Full Court”) (Ainslie-Wallace, Tree and Forrest JJ) quoted with approval, the Full Court decision of Watson v Watson[2] as follows from 86,964:
[1] (2019) FLC 93-927.
[2] (2013) FLC 93-530.
36. From the detailed discussion by the Full Court in Fahmi of the various authorities referred to, and the express or implicit acceptance of particular statements of principle or approach, the following propositions emerge as to the discretionary rule that a party in a contempt may not be heard when a court is exercising jurisdiction under the Act:
(a) Procedural justice dictates that the fact that a party has disobeyed an order of the Court is not of itself a bar to the party being heard on a subsequent application brought by that party;
(b)In courts exercising jurisdiction under the Act, the rule, when it operates, gives rise to a discretion not to permit a party being heard. That is, unlike other jurisdictions such as New South Wales and South Australia where the rule is to be applied as a strict rule subject to limited exceptions, in this jurisdiction the discretionary approach applies (as to New South Wales see Young J in Young v Jackman (1986) 7 NSWLR 97 at 102; 11 Fam LR 331 at 335 referring to the Court of Appeal decision in Permewan Wright Consolidated Pty Ltd vAttorney-General (1978) 35 NSWLR 365; and as to South Australia see per Bray CJ (with whom Mitchell and Jacobs JJ agreed) in Shortv Short (1973) 7 SASR 1 at 11);
(c) The rule applies where facts establish disobedience of an order, even though there has been no application for the party to be dealt with for contravention or contempt, and no determination has been made that the party is guilty of a contravention or contempt;
(d) The Court may, in its discretion, refuse to hear a party in breach of an order only if that party makes an application in the same proceedings or in the same cause in which the disobedience of an order has occurred. If the application by that party is not in the same proceedings or in the same cause of action in which the contempt has been committed, no question as to the party in alleged contempt being heard arises;
(e) The question of whether the application is in the same proceeding or in the same cause is crucial and is determined by reference to the structure and content of the definition of “matrimonial cause” in the Act, the relevant parts of the Act and the Family Law Rules 2004 (Cth) that apply and, ultimately whether the proceedings may be identified as distinct because the nature of the relief claimed in them respectively is determinative;
(f) No question as to a party being heard arises:
(i) if that party is defending, rather than bringing, an application;
(ii) on an appeal by the party to set aside the order on which the alleged contempt is founded;
(iii) where a party applies for the purpose of purging the party’s contempt;
(iv) where a party against whom contempt is alleged seeks to be heard on a submission that, having regard to the true meaning and intent of the order which the party is said to have disobeyed, the party’s actions did not constitute a breach of it, or having regard to all the circumstances, the party ought not to be treated as being in contempt.
(g) Where the discretion arises its exercise depends upon the balance between that party’s right to procedural justice, including the right to be heard, and public policy considerations. Those public policy considerations include that if the party’s disobedience is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth, or to enforce the orders which it may make, or the party’s further application constitutes an abuse of process in the circumstances, then the Court is unlikely to exercise its discretion in favour of hearing the party or entertaining the application of the party.
In support of the submission that the Court should exercise its discretion to refuse to hear the husband, it was argued as follows:
(a)There was no appeal from the order made on 27 November 2020 requiring the husband to pay the mortgage;
(b)The husband agrees that the current arrears under the order are $15,931.72;
(c)The husband was put on notice that he was in default and the particular paragraphs of the judgment brought to his attention i.e. that the rent paid to his parents could not take priority;
(d)The husband made no repayments from the date of the order until 18 June 2021 and since then has elected to make payments of only $400 per week;
(e)The husband is not a person who is doing his best to comply with the order;
(f)The husband has continued to make rental payments of $400 per week to his parents despite the findings made by Judge Jarrett;
(g)The husband has also continued to make voluntary superannuation payments of $128.96 per week despite those sums being disallowed by the Judge in the calculation of the husband’s capacity to pay;
(h)The husband has not used funds available to him to meet other joint debts e.g. the rates (which are now in arrears) or the costs associated with the children’s psychologist;
(i)The husband has only recently disclosed the availability of further funds from his father, although no evidence has been produced as to the receipt of the $35,000 the husband alleges he owes to his father/parents;
(j)The bank has been pressing for payment yet the husband has not utilised his available income and capital resources to meet his obligations; and
(k)The husband elected not to proceed with his application to sell the house when represented by counsel on 27 November 2020 and provides no evidence to establish any change in his circumstances to justify his failure to comply with an order of the court.
The husband submits that he has done his best to comply with the order by making payments of $400 per week since 18 June 2021, selling his car for $800 and contributing that sum to the mortgage debt.
It is further argued by the husband that he is obliged to pay rent to his parents and if he did not he would have to pay rent elsewhere. There is no evidence from the husband’s parents.
Conclusion – refusal to hear the husband on his application to sell the Suburb C property
There is no dispute that the husband has disobeyed the order made on 27 November 2020. The application for the sale of the Suburb C property is the same application that was before the court on 27 November 2020 which he elected not to press at that time. The husband made no attempt to comply with the order until 18 June 2021. He provides no explanation for the delay in making any payments at all prior to 18 June 2021. The husband’s rental payments to his parents were specifically disallowed as not being payments which should take priority over housing the wife and three young children.
In the circumstances, this is a case where the husband should not be heard on his application. Accordingly, his application to sell the Suburb C property will be dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 15 September 2021
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