MULROY & PERCELL

[2017] FamCA 875

FAMILY COURT OF AUSTRALIA

MULROY & PERCELL [2017] FamCA 875

FAMILY LAW – COSTS – ENFORCEMENT - Where an application was filed to enforce a costs order which formed part of substantive orders in a property dispute –Where the enforcement warrant was issued by the applicant’s legal representatives without the applicant’s instructions– Where the enforcement warrant is not valid and is therefore dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where an application was filed by the respondent to review a costs assessment order which formed part of substantive orders in a property dispute– Where the respondent objects to the quantum of costs – Where the applicant argues that the respondent has had more than enough time to pursue his rights – Where the respondent was not aware of the costs assessment notice until he received an enforcement warrant – Where time is extended for the respondent to review the costs assessment order.

APPLICANT: Ms Mulroy

RESPONDENT: Mr Percell

FILE NUMBER: SYC 1379 of 2013

DATE DELIVERED: 13 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 13 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Central Coast Family Law
FOR THE RESPONDENT:	Mr Percell in person

Orders

1. That these proceedings be adjourned for mention at 10.00 am on 22 August 2017.

2. That Mr Percell have leave to file an application for review of the costs assessment order made on 2 March 2017 and the Court deems his Application in a Case filed on 4 April 2017 to have effect as from 13 July 2017.

3. That the Enforcement Warrant filed on 10 April 2017 be dismissed.

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 Mulroy & Percell 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 SYDNEY

FILE NUMBER: SYC 1379 of 2013

Ms Mulroy

Applicant

And

Mr Percell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. One of the matters which is before the Court today is an enforcement warrant which purports to have been filed on 10 April 2017 by Ms Mulroy.  That enforcement warrant is supported by an affidavit by Malcolm Bruce Cameron, Ms Mulroy’s solicitor, sworn on 7 April 2017.  I note the enforcement warrant bears no signature by Ms Mulroy. 

2. This comes during the course of a long period of litigation between these parties.  I have given numerous sets of reasons for judgment in respect of various aspects of the proceedings.  The matters which are before the Court today relate to:

   ·firstly, a costs order in respect of which this enforcement warrant has been issued;  and

   ·outstanding matters concerning child support.

3. Without giving the details of the child support matter, I had primarily listed the proceedings today because I had made a declaration on an earlier occasion to the effect that Ms Mulroy was not a person who was eligible to make an application for child support assessment and Mr Percell was not a person against whom a child support assessment of liability for child support could properly be made.  I stood the matter over to today to enable Mr Percell and Ms Mulroy to have an opportunity to prepare some further material in respect of that matter, because what has occurred is that various assessments of child support in respect of the parties’ child, J, have been made, going back as far as 2001, in respect of which I have now found that there is no liability by Mr Percell to pay. 

4. Mr Percell has indicated that he wants a refund from Ms Mulroy of all the money which he says he has paid child support.  That matter is clearly in dispute between the parties.  I have made it very clear to Mr Percell that the evidence he will need to put before the Court to enable the Court to form a judgment about what he has paid in child support will be the actual account records from the Registrar of Child Support.  Mr Percell has indicated that his enquiries of the Child Support Agency have informed him that he would need to make what I might refer to as a Freedom of Information request for that material.  He also said that he has been informed that such a request would take some months to process and be able to be responded to properly by the Registrar of Child Support. 

5. Between the time of hearing the child support application and the time when I gave judgment in respect of that matter, there were further applications filed.  The first of such applications was an enforcement warrant.  This was filed on 10 April 2017 purporting to be on behalf of Ms Mulroy.  That seeks to enforce a costs order which followed the substantive orders which were made to resolve the property dispute between the parties. 

6. There is another application being an application in a case filed by Mr Percell. This seeks a review of the costs assessment order, which was made by the Registrar in early March this year in respect of a costs order, to the effect that Mr Percell was required to pay Ms Mulroy’s costs on a party/party basis as agreed or as assessed.  The costs assessment order was in the vicinity of $70,000.  Mr Percell clearly objects to the quantum. 

7. The Court was being urged by Ms Mulroy’s solicitor to deal with the matter on the basis that Mr Percell has had more than enough time to have been able to pursue his rights in respect of that and that, in fact, the Registrar had given him an indulgence.  It was submitted that, in all those circumstances, the Court ought to deal with that matter. 

8. There are difficulties about doing so.  Firstly, Mr Percell said that he did not receive service of the costs assessment notice.  It is not clear to me what the situation is in relation to that.  He said that he changed his address.  It may be technically the case that he has been served with that costs assessment notice.  But, in any event, there is always a discretion in the Court to extend time in respect of such matters.

9. Mr Percell said that he was not aware of that costs assessment notice having issued until he received a copy of the enforcement warrant through his former wife.  He said that he wanted to do something about that and was informed at the time by a registry officer that, in fact, the whole matter was before me and that he could not take things further.  That was clearly the case because I had been approached by a registry officer, informing me, firstly, that the enforcement warrant had been filed and, secondly, that there was an application in a case by Mr Percell. 

10. I had informed the registry officer that in circumstances where I had reserved judgment in the child support proceedings, where I thought it was essential for me firstly to determine what was going to happen about the child support proceedings, that those applications ought not be provided with return dates until I was in a position to complete the judgment.  In those circumstances, it was quite reasonable for Mr Percell to respond to the registry’s directions in the way that he did, that is, to await judgment and orders.

11. Accordingly, in those circumstances, I propose to permit the time for the review of the costs assessment order which Mr Percell is seeking in his application in a case to be extended.  I shall deem the time for his application to review the costs assessment order to be extended to today. 

12. That matter can remain pending.  If it becomes necessary to do something about that, then all parties will have appropriate leave and an opportunity to prepare and present something in respect of that matter. 

13. Turning to the enforcement warrant, as I have said, this was filed on 10 April 2017.  As things turned out, I made that application returnable today.  What is worrying is that during the course of discussions about these proceedings, it has emerged from Ms Mulroy that she did not give any instructions to Central Coast Family Law to issue this enforcement warrant. 

14. I am unaware of any basis upon which an enforcement warrant could be issued in the name of one of the parties to current proceedings without that party having instructed the solicitors to do so.  So the view that I have about this is that it has been improperly issued and improperly filed.  In those circumstances, in my view, it is invalid and it should be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 July 2017.

Associate:     

Date:  7 November 2017