PAINTER-WARD & WARD

[2013] FCCA 1841

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAINTER-WARD & WARD [2013] FCCA 1841

Catchwords:
FAMILY LAW – Application to discharge order restraining release of monies held in trust by wife’s solicitor – cost order against husband outstanding – monies released to wife’s solicitors for payment of costs order.

Applicant: MS PAINTER-WARD

Respondent: MR WARD

File Number: MLC 2470 of 2011

Judgment of: Judge Hartnett

Hearing date: 29 October 2013

Delivered at: Melbourne

Delivered on: 29 October 2013

REPRESENTATION

Counsel for the Applicant: Ms Fielding

Solicitors for the Applicant: Lewis Holdway Lawyers

The Respondent: No Appearance

THE COURT ORDERS THAT:

1. Leave is granted to the Applicant wife to make an oral application seeking the discharge of order 7 of the Orders of this Court dated 26 October 2012.

2. Order 7 of the Orders of this Court dated 26 October 2012 is discharged.

3. The monies held on trust on behalf of the parties in the trust account of the solicitors for the wife be paid out to the wife’s solicitors in partial satisfaction of the costs order made on 27 November 2012 which remains unsatisfied.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Hartnett delivered this day will for all publication and reporting purposes be referred to as Painter-Ward & Ward.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2470 of 2011

MS PAINTER-WARD

Applicant

And

MR WARD

Respondent

REASONS FOR JUDGMENT

1. This matter proceeded at trial in March 2012 and Orders were made and Reasons delivered by the Court on 30 March 2012. The husband appealed those Orders and the appeal was heard by the Full Court of the Family Court of Australia on 29 November 2012 with judgment delivered on 8 October 2013. The appeal was dismissed. Between the making of Orders on 30 March 2012 and the hearing of the appeal on 20 November 2012 various further applications were made to this Court by way of stay and cost applications. I will not restate here those matters contained in the various judgments delivered by me previously. On 27 November 2012 the Court ordered that the husband pay the wife’s costs on an indemnity basis and less any amounts already paid by him pursuant to earlier orders of the Court made after 14 September 2011, fixed in the sum of $160,536.40. I refer to but do not restate here the reasons for judgment in that matter.

2. On 26 October 2012 this Court made a restraining order as follows:-

   “7. Lewis Holdway Lawyers be restrained from releasing any trust monies held in the name of the parties pending further order of this Court or the Family Court of Australia.”

3. The restraining order referred to in the preceding paragraph was not dismissed by the Full Court of the Family Court of Australia. The solicitor acting for the wife, Ms Fielding, told the Court on the hearing of this matter that the Full Court of the Family Court of Australia had determined such discharge of the earlier order was a matter to be brought back before this Court. Pursuant to that restraining order there is an amount held on behalf of the Applicant wife and the Respondent husband in the proceedings in the wife’s solicitors controlled monies account still to be dispensed. That sum is $26,934.62. It is the wife’s application that the totality of that sum be released to her for payment of her costs and pursuant to the Order dated 27 November 2012. The costs order made on 27 October 2012 remains partially unsatisfied. The husband has paid only $48,681.51 of the total sum ordered. A further amount of $84,920.27 will remain unpaid after the release of the funds to the wife’s solicitors following the discharge of the earlier restraining order.

4. The husband has been sent emails concerning this foreshadowed application by the solicitors for the wife to his last known address for service. The husband has provided no other address. The email address is that provided by the husband throughout the appeal process. No contact with the wife’s solicitors has emanated from him since the conclusion of the appeal hearing.

5. I am satisfied the husband was given notice of the reason for the listing of the matter and the date of hearing. He has failed to respond. The monies should be released to the wife’s solicitors for payment of the wife’s costs ordered to be paid by the husband. There are no other funds available as currently known to the wife from which the husband will satisfy the debt owing by him. That order however remains an operative costs order.

1. The Court heard oral testimony from Ms Fielding on the day of this hearing and a transcript of proceedings has been placed upon the Court file.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 13 November 2013