Mitford and Cilea

[2018] FamCA 485

FAMILY COURT OF AUSTRALIA

MITFORD & CILEA [2018] FamCA 485

FAMILY LAW – ENFORCEMENT – Application to set aside enforcement warrant – Where husband has discharged his obligation under orders to pay the wife a sum of money – Where wife seeks to withdraw enforcement warrant – Where the enforcement warrant is permanently stayed.

Family Law Rules 2004 (Cth)

APPLICANT: Mr Mitford

RESPONDENT: Ms Cilea

FILE NUMBER: TVC 986 of 2016

DATE DELIVERED: 22 June 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 22 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Pack

SOLICITORS FOR THE APPLICANT: P D Law

THE RESPONDENT: No appearance

Orders

1. The Enforcement Warrant filed 13 October 2017 be permanently stayed.

AND NOTING the husband’s oral application for an indemnity costs order against the wife, IT IS FURTHER ORDERED THAT:

1. No later than 4:00pm on Friday 29 June 2018, the husband is to make file and serve any material, including written submissions, upon which he relies in support of that application for costs.

2. No later than 4:00pm on Friday 13 July 2018, the wife is to make file and serve any material, including written submissions, upon which she relies in opposition to the husband’s application for costs.

3. No later than 4:00pm on Friday 20 July 2018, the husband is to make file and serve any written submissions upon which he relies strictly in response to any submissions made by the wife under order 3 hereof.

4. The decision in relation to the husband’s application for costs stands reserved on 20 July 2018

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitford & Cilea has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVC 986 of 2016

Mr Mitford

Applicant

And

Ms Cilea

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The husband, by application in a case filed 6 November 2017, seeks the setting aside of an enforcement warrant issued 13 October 2017.  When the matter was called on before me today, there was no appearance on behalf of the wife, at whose behest the execution warrant was issued.  However, there was email communication from someone purporting to be the wife, to the Court earlier this morning, in which she said she wished to “withdraw my claim for a enforcement warrant”.  She then did not appear when the matter was called on this morning, notwithstanding my order made on 21 November 2017 that she personally appear today.

2. However, it is not altogether clear as to the authenticity of that email, given that the email address from which it was sent is different to that with which the wife had previously advised the Court email communication could be made with her.  Therefore, out of an abundance of caution, Mr Pack, who appears as counsel for the husband, sought to persuade me that nonetheless, even if I was not satisfied that the wife did no longer wish to pursue execution of the enforcement warrant, that I should nonetheless permanently stay it on the grounds that the monies which were due under the consent judgment made on 23 September 2016 have been paid in full.

3. I am satisfied that indeed the moneys that were due to be paid by the husband to the wife, being a sum of $20,000, pursuant to the consent judgment of 23 September 2016, have been entirely discharged. 

4. Particularly I am satisfied, based upon the evidence contained within the wife’s affidavit, the husband’s affidavits, and exhibit 1 in the proceedings tendered before me today, that the sum of $20,000 has been entirely paid.  I am satisfied that on that basis the enforcement warrant should no longer remain in force.  As to the precise form of the order disposing of the enforcement warrant, it is not altogether clear under rule 20.07 and 20.09 what the appropriate order is in relation to an enforcement warrant, as distinct from an enforcement order.  However, I am satisfied that the Court must at least have an inherent jurisdiction to control the execution of its own processes, and that the appropriate order in these circumstances is for there to be a permanent stay of the enforcement warrant issued on 13 October 2017.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 22 June 2018.

Associate: 

Date: 22 June 2018