Mitty and Mitty and Ors (No. 2)
[2008] FamCA 973
•6 November 2008
FAMILY COURT OF AUSTRALIA
| MITTY & MITTY AND ORS (NO. 2) | [2008] FamCA 973 |
| FAMILY LAW – PRACTICE AND PROCEDURE – orders supporting enforcement – procedural orders |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Mitty |
| 1st RESPONDENT: | Mr Mitty |
| 3rd RESPONDENT: | Mitty Pty Ltd |
| 4th RESPONDENT: | Ms N |
| 5th RESPONDENT: | Ms S |
| 6th RESPONDENT: | Mr B |
| FILE NUMBER: | SYC | 8326 | of | 2007 |
| DATE DELIVERED: | 6 November 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| ORDERS MADE: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 24 October 2008 |
| ORDERS MADE: | 6 November 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton |
| 1ST RESPONDENT: | In person |
| COUNSEL FOR THE 3RD, 4TH AND 5TH RESPONDENTS: | Mr Brzostowski SC |
| 6TH RESPONDENT: | Excused from attendance |
Orders
Within 14 days of the date of these Orders the husband cause to be delivered to the wife at an address nominated by the wife the horses referred to in the Order made on 24 July 2008 deposed to by him in his Financial Statements sworn in these proceedings as owned either by him or H Capital Pty Limited, together with any relevant registration papers, and such delivery shall be at the husband’s expense.
The husband sign the authority to the National Australia Bank and E Business in the form of the authorities attached to these Orders forthwith.
That the husband do all things to, on or before 4.00 pm on 20 November 2008, to provide in writing to the solicitors for the wife:
(a)an authority duly executed and dated by the husband pursuant to the Freedom of Information Act 1982 (Cth) authorising and directing Centrelink to provide a copy of his file with that institution to the solicitors for the wife and
(b)an affidavit setting out the nature and purpose of each application of funds made from the trust account of E Business in T operated on behalf of the husband and/or H Capital Pty Limited, for the period 1 February 2008 to date, as identified in Exhibit “T” tendered 24 October 2008 in these proceedings together with any document verifying the quantum of funds paid, and otherwise set out the factual foundations contended by the husband as to the nature of such payment or its application as part of his reasonable living expenses.
IT IS NOTED that publication of this judgment under the pseudonym Mitty & Mitty and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8326 of 2007
| MS MITTY |
Applicant
And
| MR MITTY |
1st Respondent
And
| MITTY PTY LTD |
3rd Respondent
And
| MS N |
4th Respondent
And
| MS S |
5th Respondent
And
| MR M |
6th Respondent
REASONS FOR JUDGMENT
Background Facts
These are proceedings which arise between the parties to the marriage in which, inter alia, the parties seek orders for the alteration of interests in property.
There is a clear issue between the parties as to the nature and location of the property of the parties or either of them and there are proceedings seeking to bring back property said to have been disposed of pursuant to the provisions of section 106B of the Family Law Act 1975 (“the Act”).
Orders to aid enforcement
The wife, in an application, brought proceedings for orders for the sale of property on an interim basis and in those proceedings I made, inter alia, the following orders:
“12.Leave is granted to the husband to make an oral application for an adjournment.
13.The husband’s application is granted conditionally.
14.Consequently, as a condition of the adjournment, Orders are made in accordance with paragraphs 1, 3 and 4 of a document titled “Draft Minutes of Order as sought by the wife”, filed herein, amended as set out hereunder:
“That Pending Further Order:
1.That the wife forthwith do all things as are necessary to take possession of and seize:
1.1all livestock, horses
1.2(deleted)
1.3(deleted)
owned by either the husband and/or [H Capital] Pty Ltd whether beneficially or otherwise and thereafter be appointed trustee for sale of the said items and be entitled to retain the proceeds of sale of the said items and apply the same in the following priority:
a. arrears of spouse maintenance pursuant to the orders made 12 March 2008;
b. in respect of interim costs payable pursuant to the dollar for dollar costs order made 12 March 2008 up to $12,500; and
c. the balance to be paid into the wife’s lawyer’s trust account with the wife having the capacity to draw such amounts as have accrued in respect of the spouse maintenance order made 12 March 2008 on the last day of each month.
[2.No order]
3.The husband do all acts and things as may be necessary to assist the wife to take possession of the items referred to in Order 1 and otherwise be restrained from doing any act or thing to transfer, dispose of, deal with, encumber, adversely affect or physically move from its current location or otherwise prevent the wife from obtaining access to any of the items referred to in Order 1.
4.The husband do [all] acts and things to transfer to the wife the registration of Audi motor vehicle registered number AM96RA presently in the wife’s possession.”
Proceedings on these orders have not been stayed.
The husband admits non-compliance with the orders as to the wife taking possession of the horses referred to but produced a letter received from solicitors acting for a company on whose property the horses are said to be agisted.
It is a letter which there is a refusal, notwithstanding the orders made by this Court, to permit the removal of the horses until the owner of the property is satisfied as to ownership. No application has been made to this Court by that company for any relief nor has any claim been made by it of entitlement to the horses. An order having been made against the husband, however, it is for the husband to procure compliance with it and it is he who placed these horses on the property referred to.
Accordingly, to assist carrying the Court’s intention into effect I propose to make the further order referred to above.
I draw to the attention of anyone claiming an entitlement to the horses that there is no evidence before me which would suggest that they are other than the property of the husband or entities within his control.
Any attempted interference with giving effect to the order I have made as to the delivery of the horses could potentially render those doing so liable to sanctions.
I inform the husband that a failure to secure compliance with an order of the Court is a matter which, on further application, can attract the sanctions referred to in Rule 11.02 of the Family Law Rules 2004 (“the Rules”) and set out hereunder of any of them:
“RULE 11.02 FAILURE TO COMPLY WITH A LEGISLATIVE PROVISION OR ORDER
11.02(1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.
Note A defaulter may apply to the court for relief from this rule (see rule 11.03)
11.02(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a) dismiss all or part of the case;
(b) set aside a step taken or an order made;
(c) determine the case as if it were undefended;
(d) make any of the orders mentioned in rule 11.01;
(e) order costs;
(f)prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g)make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).
Note This list does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.”
Orders as to further disclosure
In the proceedings before me, Mr Campton of Counsel for the wife pointed to the continued difficulties he had with procuring a full and frank disclosure from the husband.
Certainly the husband failed to disclose material which, even on the most rudimentary knowledge of obligations under the Act as to disclosure, should have been disclosed and were not.
The husband’s entitlement to monies paid pursuant to a verdict were one such example.
Another, the history of the husband utilising a hitherto unknown account with E Business and passing substantial sums of money through it.
Having regard to the husband’s attitude to the non-disclosure is that he “spent the money on living expenses anyway” and demonstrated attitude of insouciance in relation to compliance with obligations of disclosure.
His reference to certain domestic violence proceedings as having been dismissed, without reference to the fact that they were dismissed on his undertakings as to behaviour, was a “supressio veri” which together with other aspects of his behaviour makes one begin to doubt whether in this what he says can be regarded as reliable.
The husband points to a failure on the part of the wife and her father to fully inform him of arrangements with respect to the property of which the wife’s father was the registered proprietor, and in particular the redefinition of the boundaries of that property and whether or not any monies have been paid to the wife, or at her direction as a result of the redefinition.
That issue has not been fully ventilated and it may be that he has an arguable case to allege non-disclosure, but that does not mean that he is excused himself from his obligations under the terms of the orders made and his general level of disclosure.
I, in order to promote disclosure and encourage a more level field of knowledge held by the parties, make the orders set out above.
I decline at this stage to make self-executing orders as to the hearing of the matter on an undefended basis but note that that is a sanction permitted by the Rules and that the husband has been fully and fairly warned by these Reasons of that possibility.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 6 November 2008
2
0
1