PALMERE & WALBANK
[2020] FCCA 765
•3 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PALMERE & WALBANK | [2020] FCCA 765 |
| Catchwords: FAMILY LAW – Enforcement application – where parties compromise property proceedings – where terms of settlement embodied in consent order – where order made by a Registrar – where respondent allowed sixty days to pay settlement sum – where respondent then brings Contravention Application – where summary judgement given against respondent with costs – where applicant suffers hardship – where respondent raises multiple issues against the enforcement – relief granted – order for payment – order for seizure and sale suspended for two months. |
| Legislation: Family Court Rules 2004 (Cth), Rule.17.03 |
| Cases cited: Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll LR 359 In the Marriage of Kelly (No.2) (1981) FLC 91-108 Meehan v Jones (1981) 149 CLR 571 Monticone & Monticone (1990) FLC 92-114 |
| Applicant: | MS PALMERE |
| Respondent: | MR WALBANK |
| File Number: | MLC 6501 of 2019 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 24 March 2020 |
| Date of Last Submission: | 24 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 3 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. McLeod |
| Solicitors for the Applicant: | J S Law |
| The Respondent: | In Person |
ORDERS
By consent, pursuant to ss.67-68 of the Federal Circuit Court of Australia Act1999 (Cth), the Court directs that the parties be allowed to appear and to make submissions before the Court by audio link.
Pursuant to rule.25B.14(1)(a) of the Federal Circuit Court Rules2001 (Cth) (Rules), declare that the kind of enforcement orders being made are declarations and orders made pursuant to rules.25B13(a), (b), (c), (d), (f), (g) and (m) of the Rules, being a declaration of the total amount owing under obligations embodied in the parties’ consent order made on 9 October 2019 (Order), an order for payment of the total amount owing in full and when it must be paid, orders in aid of enforcement, an order for enforcement, an order for costs and interest and an order suspending the enforcement of certain obligations on the terms set out in this order.
Pursuant to rule.25B.14(1)(b) of the Rules, the address of the payee, Ms Palmere, is c/ JS Law, 72 Queen Street, Bendigo, in the State of Victoria.
Pursuant to rule.25B.14(1)(c) of the Rules, the address of the payer, Mr Walbank, is A Street, Suburb B, in the State of Victoria.
Pursuant to rule.25B.13(f) of the Rules, order that the respondent pay the applicant’s costs of and incidental to this enforcement application fixed in the sum of $8,000.
Pursuant to rule.25B.14(1)(d) and 25B.14(2) of the Rules, declare the total amount owing by the respondent to the applicant is $27,558 being the sum of the amounts owing pursuant to:
(a)paragraph (1) of the Order; namely, $17,000;
(b)paragraph 3(c) of the Order in respect of interest for the period 10 December 2019 to 3 April 2020; namely, $358;
(c)paragraph (2) of the order made on 9 December 2019; namely, $2,200;
(d)paragraph (5) of this Order; namely, the sum of $8,000;
together with $3.14 per day being a daily amount of interest for the period from and including 4 April 2020 until payment.
Pursuant to rule.25B.13(d) of the Rules, order that by 4:00pm on Friday, 29 May 2020, the respondent must pay the applicant in full the said sum of $27,558 together with the daily amount of interest of $3.14 per day from 4 April 2020 until payment.
Order that the respondent must pay the applicant in full the sum stipulated in paragraph (7) of this Order by paying the same to the applicant’s solicitor, JS Law, 72 Queen Street, Bendigo, Victoria.
In default of compliance with paragraphs (6) to (8) hereof, pursuant to s.105 of the Family Law Act1975 (Cth) and rules.25B.13(c), (d) and (g) of the Rules, an enforcement order is made by way of seizure and sale of the property situate at and known as A Street, Suburb B, in the State of Victoria, being the land more particularly described in Certificate of Title, Volume … Folio … (the property) be sold forthwith (the sale) with such sale to be conducted as follows:
(a)pursuant to rule.25B.06(1)(b) of the Rules, the Applicant is appointed Enforcement Officer under the Rules with full authority to have the carriage of the sale, and she shall be at liberty in her sole discretion to:
(i)determine the agent, the means of sale, the price of sale and settlement period for the sale of the property;
(ii)execute on behalf, and in the name, of the respondent all such document and instruments as may be necessary to effect to the sale including, without limitation: an auction authority; a statement given pursuant to s.32 of the Sale of Land Act1962 (Vic); a contract of sale; a statement of adjustments; and, a settlement statement;
(b)the proceeds from such sale be distributed as follows:
(i)first, to pay the costs and commissions of the sale;
(ii)secondly, to discharge the mortgage registered over the property, namely ANZ Mortgage no. …;
(iii)thirdly, in payment of the following to the applicant:
A.the said sum of $27,558;
B.the daily sum of $3.14 by way of interest from 4 April 2020 until payment; and
C.the applicant’s costs of and incidental to the sale of the property;
(iv)fourthly, the balance then remaining (if any,) to the respondent.
Pursuant to rule.25B.13(m) of the Rules, paragraph (9) of this Order, being an order for enforcement by way of seizure and sale of the property, be suspended until Friday, 29 May 2020.
Liberty be reserved to the parties to apply on short notice in respect of the sale of the property.
Certify for advocacy.
IT IS NOTED that publication of this judgment under the pseudonym Palmere & Walbank is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6501 of 2019
| MS PALMERE |
Applicant
And
| MR WALBANK |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why orders have been made in an application for enforcement of a final order which was made by consent on 9 October 2019. That Order adjusted property interests between parties to a de facto relationship of some eight years duration. In short compass, by this Order, the respondent secured the result which he pursued from the date of filing his response, save that, by consent, he assumed an obligation to pay the applicant the sum of $17,000.
Had the consent Order been observed, that payment would have been made by 9 December 2019. It was not paid. Instead, the respondent now identifies a raft of contentions which, as he contends, provides him a proper basis not to obey those orders. For the reasons which follow, I reject that submission. In substance, I am satisfied that the parties entered into a compromise to settle all issues in dispute in the proceeding and intended to enter a legally binding and concluded agreement. Their agreement is now embodied in consent orders which have been made. Risk was allocated according to the parties’ agreement. It was allocated when their agreement was made.
Background
The parties are aged in their forties. The applicant is unemployed while the respondent is a tradesman.
The parties’ relationship began in 2010 and they separated in September 2018. There are no children of their union.
It is unnecessary to recount the history of the matter in particular detail save as to note that, the applicant secured a family violence intervention order against the respondent, including as a result of his erratic behaviour due, it was alleged, to an ICE addiction. The respondent denies those allegations.
Following the parties’ separation, the applicant’s solicitors made a proposal for a final adjustment of the parties’ property interests. At that time, the respondent was legally represented. There is ample evidence that the respondent has a practice of engaging in extensive and belated communications, including that he threatens the applicant’s lawyers.
Procedural history
On 14 June 2019, the applicant commenced this proceeding seeking an adjustment of property interests. Commendably, whereas it is the not uncommon experience in this jurisdiction that parties will commence a proceeding and indicate merely that they be permitted to particularise their claim at a later date, in this proceeding that did not occur. Instead, the applicant sought payment by the respondent (within sixty days) of such sum as was considered just and equitable and that the respondent be permitted to retain a property in A Street, Suburb B and otherwise, if he was unable to refinance the mortgage over the property, that it be sold and that the sum to be paid to the applicant in this proceeding be paid to her, with interest, from the net proceeds of sale.
On 29 July 2019 and again on 2 September 2019, the respondent filed a Response. By his first Response, the respondent sought final orders that he retain the A Street, Suburb B property and refinance the mortgage into his sole name, indemnifying the applicant for any liability thereunder. He sought like orders in respect of an ANZ offset account. Otherwise, he sought that each party retain the personal property in their possession and orders for the severance of their joint tenancy in any real or personal estate. The respondent also sought an order for the removal of a caveat which had been lodged by the applicant over the property.
By his second Response, the respondent reiterated his claim for relief; however, he added “Submissions” whereby he contended the applicant was required to substantiate her claim to an equitable interest in the property so as to support a caveat. Further, he submitted that such matters were best addressed by a trial.
It is convenient to observe that in all relevant respects, the orders which have been made throughout the proceeding were made by consent.
On 31 July 2019, the matter was first listed for directions. On that date each of the parties was represented by counsel or a solicitor. An order was made setting the matter down for final hearing. In addition, an order was made facilitating that the Court might assist the parties in seeking to resolve the matter by way of a Conciliation Conference appointed for 9 October 2019 before a Registrar of the Court. The parties consented in orders that the matter be fixed for trial. The parties were also agreed that the respondent should have sole use and occupation of the A Street, Suburb B property and that they would hold their interests in the property on trust and that the respondent be solely responsible for the payment of all outgoings and expenses of the real property. In addition the parties were agreed in obtaining a joint valuation.
As a consequence of those orders, since 31 July 2019 (and indeed since separation), the respondent has been in sole possession of the property.
Each of the parties filed affidavits contemporaneously with their Initiating Application and Response respectively. Relevantly, it was common ground that the respondent was sole proprietor of the A Street, Suburb B property and that it was encumbered by a mortgage to ANZ Banking Group and what appears to be a caveat lodged by a legal firm (the reasons which are not immediately apparent). It is convenient to note that the respondent’s first affidavit asserted that each of the parties’ assets included certain equipment.
One of the objections that is raised by the respondent to the Enforcement Application arises from certain observations made on 31 July 2019 in the course of the mention of the proceeding in that Duty List.
In particular, the respondent has gone to the trouble of obtaining a transcript of the mention on 31 July 2019. As the respondent requests, I have examined that transcript and note that the Court was concerned to modify the parties’ proposed orders in a number of respects, including by providing for a Conciliation Conference at which they might seek to mediate and achieve an agreement for the final settlement of the property proceeding. It appears that it was necessary to move the proposed conciliation date to later in the year to accommodate the respondent’s travel commitments. A further issue was to require the parties to define with some greater precision the final orders that were to be sought. As the transcript confirms, those directions were made so that the Conciliation Conference was not rendered abortive by reason of a failure to properly define, in advance, the orders being sought.
Other issues were raised with the parties as to steps which might be taken to contain their costs in relation to any settlement including that, if necessary, consent orders could be submitted to chambers. In addition, I reminded the parties that, if orders adjusting superannuation interests were to be sought, it would be necessary to ensure that an affidavit exhibiting a letter of consent from the trustee would be required so as to demonstrate that procedural fairness had been provided to the trustee. These steps were taken to minimise the parties’ costs. In the context of discussing my disinclination to commit the parties to a further directions hearing in advance of the trial, I stated as follows:
Look, I will give you liberty to apply instead. What I want you to understand by that is, if you’re able to resolve the matter – conciliation conference and you’ve given procedural fairness and done everything else that needs to be done, just get the parties to sign the final orders, give me procedural fairness by an affidavit exhibiting the trustee’s letter, file in chambers and I will make those orders and the parties will save themselves a bit of money.
Thereupon, the directions hearing was adjourned. Having regard to other issues that have been raised by the respondent in answer to the enforcement application, it is convenient to address those issues below.
Settlement of the proceeding
On 9 October 2019, a Conciliation Conference was conducted by a Registrar of the Court at which the applicant was represented by counsel whilst the respondent was self-represented. All matters were resolved by agreement. The parties signed consent orders, each page of which is initialled. Before addressing other matters it should be noted from the respondent’s sworn evidence in this application that he acknowledges his initials were placed on the “Rough copy” of the agreement by which he agreed to pay the applicant an agreed sum of $17,000.
On that date a Registrar of the Court made orders, by consent, giving effect to the parties’ agreement.
The orders were framed in orthodox terms and provided that within sixty days, the respondent would pay the applicant the agreed sum of $17,000. The parties were further agreed that, contemporaneously with that payment, the respondent would refinance the mortgage and ANZ offset account and further, that the applicant would remove the caveat over the property. The parties expressly contemplated and agreed that, if the respondent was unable to refinance the mortgage and ANZ offset account, the property “be listed for sale forthwith (the sale) and the net proceeds of sale be applied:
(a)-(b)[to pay the costs of sale and discharge the mortgage];
(c)thirdly, a payment of $17,000 to the Applicant plus interest accrued from the payment date pursuant to the family Law rules; and
(d)the Respondent to retain the balance.”
The respondent also secured the applicant’s agreement that he should enjoy the sole use and occupancy of the property pending completion.
Contravention application
On 31 October 2019, the respondent filed a Contravention Application alleging that:
a)on 2 September 2019, “despite the orders appearing to state otherwise, the applicant was not served a statement of the precise orders being sought and any submissions as to why the respondent (sic) proposed orders were presumed just and equitable”;
b)on 2 October 2019, the applicant “failed to deliver, if not all, then many aspects of the order deliverables/items, including property/other valuations, prior to conciliation – as per order number ten of the orders”.
For the reasons set out below, it is necessary to say something further about the orders made on 31 July 2019 and the manner in which they regulated the parties in the interlocutory steps in this proceeding.
The applicant filed a detailed affidavit answering the matters complained of by the respondent.
Notwithstanding settlement of the proceeding, the respondent now seeks to vitiate the consent order, doing so in part on the basis that, as the argument ran: the applicant had failed to comply in a timely way with various orders; the applicant had prepared an affidavit in opposition to the respondent’s Contravention Application; the affidavit had been prepared by the applicant’s solicitor; these later events should be seen as having had some impact upon the conduct of the earlier Conciliation Conference and, one is to assume, the decision to enter into a final, binding and concluded agreement to compromise the issues in the proceeding. In her affidavit made in answer to the Contravention Application, the applicant deposed that that application was merely an attempt to cause the applicant further financial hardship.
Whatever might otherwise have been the relative merit or otherwise of the suggested Contravention Application, and whatever relief might have been appropriate in other circumstances, on 9 December 2019, a Registrar of the Court made an order pursuant to Rule.13.10(a) of the Federal Circuit Court Rules 2001 (Rules) dismissing the application. That Rule confers power on the Court to grant the summary dismissal of any claim for relief in a proceeding where it is satisfied that the party prosecuting the claim has no reasonable prospect of successfully doing so. A Registrar of the Court ordered that the respondent pay the applicant the sum of $2,200 for her costs of that application.
The respondent also seeks to complain of the Registrar’s conduct on the apparent basis that the application had been dismissed summarily. There has been no appeal from that order. The respondent contends that the Court now has power to reverse the order for costs made against him and asserts that his legal costs for the Contravention Application were $5,000 in total which should be paid by the applicant. The respondent was self-represented at the time of preparing the Contravention Application and in his appearance before the Registrar. There is no evidence that the respondent incurred any legal costs in relation to it and I reject the broader assertion that he incurred such costs.
A further complaint raised by the respondent in relation to the applicant’s affidavit filed in answer to the Contravention Application is that, as he contends, the matters it contains had simply been manufactured. In this connection, an attempt is also made to implicate the applicant’s solicitor in her involvement for having drafted the affidavit, with allegations of deceit and abuse of process being made. I have examined the affidavit. I reject his contentions in relation to these matters.
Performance of the agreement
The settlement monies were payable within 60 days and the respondent accepts that he has failed to pay the applicant the sum of $17,000 in accordance with the parties’ consent orders.
By his affidavit, the respondent admits that demands have been made for payment. He now seeks to suggest that “the Payment order decision” should be reversed. There has been no “decision”. To the contrary, there has been a settlement entered into by the parties. That settlement has been embodied in a consent order from which there has been no appeal. The time for any appeal is now long passed.
Enforcement application & response
On 8 January 2020, the applicant filed an Application in a Case seeking relief pursuant to s.105 of the Family Law Act 1975 (Cth) (Act) with respect to the sale of the property together with an order pursuant to s.106A of the Act and orders for the payment of interest and costs. On the face of the application, the matter was made returnable on Monday, 23 March 2020; being in a Duty List.
The application was supported by an affidavit which proved the essential elements on which the applicant relied to establish non-compliance with the final orders and the costs which she has incurred of $12,413 in relation to the present application. The applicant deposed that her relationship with the respondent had been characterised by family violence and that, following the expiry of that order, on about 28 December 2019, the respondent filed an offensive message on Facebook which, as the exhibit confirms, has engendered much unwarranted criticism of the applicant. She deposes, and I accept, the respondent has embarked upon a course of conduct that is essentially designed to increase her legal fees and/or result in the abandonment of her attempts to secure performance and observance of the respondent’s obligations to pay her. The events below serve to fortify me in the view that there may well be force in the matters deposed to by the applicant.
Shortly before the hearing, on 18 March 2020, the respondent filed a Response to the application together with an answering affidavit setting out in extensive detail the bases on which he contended the enforcement application should be dismissed. In addition, the respondent sought a number of ancillary orders which it is necessary to deal with. The further orders sought by the respondent included orders seeking:
a)dismissal of the enforcement application;
b)review of the Registrar’s decision made on 9 December 2019;
c)a costs order against the applicant’s solicitors arising from the Conciliation Conference;
d)review of the Registrar’s conduct of the Conciliation Conference;
e)orders requiring the applicant to substantiate her caveatable interest;
f)an order for removal of the caveat;
g)review of the conduct by the applicant’s solicitor;
h)adjournment of the proceeding for six months.
It is immediately apparent that the respondent sought to expand the scope of the issues arising within the enforcement application in a significant way. It is necessary to address each of these matters below.
Duty List hearing & COVID-19 Pandemic
As stated, the enforcement application was listed for hearing on Monday, 23 March 2020 in a Duty List. However, in the period between the filing of the application and that date, a global pandemic of the coronavirus was announced by the World Health Authority. Then followed announcements by the Commonwealth government as to the manner in which these events should be addressed. In due course, the Court determined the approach that would be taken to the listing of matters at this time. As explained to the parties in the course of the ultimate hearing, the Court determined to proceed with urgent abridgements and to adopt a middle course in relation to all of the matters listed in a Duty List. In particular, the Court delisted other matters but notified all parties in the Duty List that they might seek to have their proceeding relisted stating, in part, as follows:
If your matter is urgent you may request that the matter remain listed and be heard by telephone or if necessary that a face-to-face hearing occur. If a telephone or face-to-face hearing is sought you must contact the chambers of the presiding judge by email and provide a brief outline as to why the matter should remain listed for a telephone or face-to-face hearing.
If the presiding judge determines that the matter is of sufficient urgency to be allocated a Telephone hearing the parties will then be provided with a ‘not before’ time on the listing day. Parties must ensure they are available by telephone until they receive the Court call which may be subject to change due to the nature of a busy list.
As a result, matters which had been listed to the Duty List (save abridgements), were delisted with the parties being advised that if they considered the matter warranted reconsideration for urgency they should communicate with chambers and seek that their matter be relisted.
In the present case, the parties adopted diametrically opposed positions. Having regard to the continued failure by the respondent to pay the settlement sum, the applicant requested that the matter be relisted. By contrast, the respondent communicated his view that, while the resolution of the matter was, as he said, at the forefront of his priorities, it was more appropriate to adjourn the matter for some six months. As foreshadowed in the Court’s notice above, I gave consideration to the issues arising in the proceeding and determined it should be relisted.
Hearing of the application
When the matter was called on for telephone mention on Monday, 23 March 2020, counsel for the applicant appeared and consented to the matter being addressed by telephone. There was no appearance by or on behalf of the respondent. While early attempts to contact the respondent by telephone was initially successful, ultimately this communication failed by reason that the call to his telephone appeared to terminate. As I understand the position, the respondent contends that his battery was low and his phone ‘died’. When further attempts were made to contact him, it appeared the phone was turned off. As a result, I determined that it was preferable to adjourn the matter until Tuesday, 24 March 2020 at 2:15pm. Orders were made and the parties were notified accordingly.
On the morning of 24 March 2020, the respondent sent an email seeking the matter be ‘relisted’. The respondent transmitted an extensive email to chambers in which he had sought for the matter to be relisted and providing a number of explanations as to why this was sought. First, he stated that he was apparently working in country Victoria and would be unable to appear; however, his email provided no advice as to where he was in fact located. Secondly, he ascribed his inability to attend as being attributable to the need to complete urgent works prior to the inevitable lockdown that he anticipated would affect the State of Victoria as a result of the COVID-19 Pandemic. It was not explained why such services were necessary or urgent and, as the service of his extensive affidavit indicated, the respondent appreciated that the enforcement application had been listed for hearing since January 2020. Thirdly, the respondent sought to rely upon an email transmitted on 19 March 2020 in which it had been sought to emphasise to the parties that there would be no further discussion on the matter. However, the respondent’s reliance upon that email was to take it out of context. Having regard to the number of email communications which had been received, the point had been reached where an assessment was to be made in chambers whether or not to accede to the request for the matter to be relisted. The suggestion that the matter would not be addressed is untenable – the enforcement application had to be dealt with at some point. The immediate question was whether the request to relist the matter should be acceded to. Fourthly, the respondent stated that he had only been made aware of the decision to relist the matter when contacted by telephone on Monday, 23 March 2020. The statement in that email left out of account that each of the parties had been also advised by an email that the decision was made to relist the matter. In this context, the respondent omitted to state that he had also suggested to chambers he had not taken the opportunity to read any email over the weekend. Fifthly, the applicant stated that he had only been informed at 5:15pm on Monday, 23 March 2020 that the matter had been relisted for hearing on Tuesday, 24 March 2020 at 2:15pm. The respondent then requested that the matter be ‘relisted’ in order that he could have the opportunity to respond. Finally, the respondent stated that he relied upon his affidavit which answered the applicant’s affidavit in support of the enforcement application. The respondent concluded that “Once again I apologise perfusely (sic) for my absence and thank you for your time and patience in this matter.” I treated the email as a request for an adjournment.
When the matter was called on for telephone mention on Tuesday, 24 March 2020 at 2:15pm, counsel for the applicant appeared and consented to the matter being addressed by telephone. There was no appearance by or on behalf of the respondent. Further, the several attempts made to contact the respondent by telephone failed by reason that his phone was continuously engaged. It was not possible to contact the respondent by telephone. I took the opportunity to confirm my understanding of the procedural history of the matter and enquired of counsel as to the appropriateness of acceding to the respondent’s request for a relisting. Having regard to the events outlined above, I acceded to the respondent’s application for the matter to be relisted. However, as his earlier email above had acknowledged, the enforcement application was a matter of importance. The application had been on foot was some 2½ months and the steps taken by the respondent to deal with it had only occurred on 18 March 2020 by the filing of his Response, a financial statement and affidavit. In all of those circumstances, I concluded that it would be appropriate to accord to the application the evident importance which each party considered it deserved. On that basis, an order was made relisting the matter to Friday, 27 March 2020.
Procedural orders were made facilitating that the applicant would notify the respondent of the relisting and serve him with a copy of the order by attaching the same to emails to be sent to each of his email addresses. The parties were notified of the relisting and a copy of the Court order made on that date was attached to the subject emails. In the emails notifying the parties of the relisting, they were also informed that they were required to advise the Court whether they wished to appear in open Court or to proceed with the hearing by telephone. Each of them responded confirming their willingness to proceed by telephone.
When the matter was listed for hearing at 10:00am on Friday, 27 March 2020, Mr Macleod of counsel appeared, by telephone, on behalf of the applicant and consented to an order that he be permitted to appear by telephone. On this occasion, the respondent also appeared by telephone. Each party consented to appearing and making submissions by telephone. The matter proceeded by way of oral submissions.
As the respondent was self-represented, Mr Macleod of counsel agreed in a proposal that it would be appropriate to proceed with the enforcement application by adapting, in a general way, the procedure prescribed for the conduct of a Contravention Application.[1] I adopted that course and explained the nature of the application to the respondent and enquired whether he wished to admit or deny the substantive allegation. He agreed that he had not paid the applicant the settlement sum of $17,000 and that he understood the enforcement application had, as its ultimate object, an order for the seizure and sale of the A Street, Suburb B property. I further explained to the respondent the order in which submissions would be heard. In doing so, I identified for him each of the documents that were relevant to the application including the application in a case, supporting affidavits, his response, his answering affidavit and financial statements. I proceeded to hear the parties’ submissions. As explained to the parties in the course of the hearing, I determined that it would be appropriate to reserve the matter for consideration. I adopted that course, particularly in light of the respondent’s request that I examine the file (as I have now done).
[1]Compare Rule.25B.04.
Applicable principles
Part XIII of the Act concerns the subject, Enforcement of Decrees, and is comprised of ss.105 – 109B. The term Decree is defined as meaning a decree, judgement or order: Act, s.4.
By s.105(1) of the Act, subject to Pt.XIII of the Act, the regulations and applicable Rules of Court, all decrees made under the Act may be enforced by any Court having jurisdiction under the Act.
The Act authorises that Rules of Court may be made for or in relation to, or for, or in relation to anything incidental to, the enforcement by the Court of an order, relevantly, to transfer the ownership of specified property to another person or to give another person possession (including exclusive possession) of specified property.[2] The Rules of Court may also provide for the issue of a warrant for the arrest of the person, the issue of a warrant of execution against property of the person, the making of an order authorising the taking of possession of property of the person and other matters which are not presently material.[3] In this context, ‘property’ means real or personal property.[4]
[2]Act, ss.109A(2), 109B.
[3]Act, s.109A(3).
[4]Act, s.109A(5).
In the context of an enforcement application, a reference to a failure to pay an amount is a reference to any such failure irrespective of the length of the period during which the failure has continued, and includes a reference to a failure to pay part of an amount.[5]
[5]Act, s.109A(4).
Part 25B of the Federal Circuit Court Rules2001 concerns the subject, Enforcement, and is arranged in four Divisions. Relevantly, Div.25B.2 concerns the Enforcement of Financial Orders and Obligations, is arranged in eight subdivisions and comprises rr.25B.05 – 25B.68. Division 25B.2 applies to family law proceedings.[6] So far as material, the Rules in Div.25B.2 regulate the following matters: (a) general (Sub-div.25B.2.1); (b) information for aiding enforcement (Sub-div.25B.2.2); enforcement of warrants (Sub-div.25B.2.3); and, other provisions about enforcement (Sub-div.25B.8).
[6]Rule.25B.05.
Obligations which may be enforced under Div.25B.2 include an obligation to pay money pursuant to an order made under the Act[7] an obligation to pay costs (including the costs of enforcement).[8] Where the obligation to pay monies arises under an order, the party in whose favour the order has been made, may enforce that obligation.[9]
[7]Rule.25B.07(1)(a), 2(a)(i).
[8]Rule.25B.07(2)(f).
[9]Rule.25B.10(a)-(b).
An obligation to pay money may be enforced by a variety of means, including an order for the seizure and sale of real or personal property and under an Enforcement Warrant.[10] It follows that one of the means by which the Court is authorised to make an order for seizure and sale is by way of Enforcement Warrant and further, that such sale may be authorised by other, less draconian, means including that a party may be appointed as an Enforcement Officer for the purposes of effecting and completing a sale of the subject property.[11]
[10]Rule.25B.11(a).
[11] Rule.25B.06(1)(b).
Where the Rules of Court so require, certain matters must be set out in the affidavit in support; however, the applicable rules are confined to matters with which the present application is not concerned.[12] For the purposes of aiding enforcement of an order, the payee may give notice to the payer requiring the provision of a financial statement in the disclosure of relevant documents.[13] Where such a notice is given, the payer must comply.[14] Failure to comply with the notice is an offence of strict liability.[15] Ancillary powers are conferred by the Rules to require the payer to attend an enforcement hearing.[16]
[12]Rule.25B.12. Notes to the rules indicate that the type of applications which engage the obligation to file a particular form of affidavit are those where an Enforcement Warrant is sought, or Third Party Notice, or a an order for the filing and service of the Financial Statement or an order for the production of documents.
[13]Rule.25B.16.
[14]Rule.25B.18.
[15]Rule.25B.20.
[16]Rule.25B.17, 25B.19.
Wide general enforcement powers of the Court are set out in rule.25B.13 and include powers to make an order: (a) declaring the total amount owing under an obligation; (b) an order that the total amount must be paid in full or by instalments; (c) an order for enforcement including by way of seizure and sale of real property; (d) an order in aid of the enforcement of an obligation; (e) an order for costs; (f) an order staying the enforcement of an obligation (including an enforcement order); (g) an order suspending the operation of an enforcement order.
Rule.25B.14 regulates matter to be addressed by an enforcement order.
Other provisions about enforcement include that an order may be enforced against a person only if a sealed copy of the order has been served on the person or the Court is otherwise satisfied the person has received notice of the terms of the order.[17]
[17]Rule.25B.65.
As concerns the enforcement of financial obligations to pay money, Div.25B.2 permits an enforcement order to be made by way of sale and execution of real property. The Rules of Court authorise that the person so appointed to sell the property may be either a sheriff, delegate of the sheriff, officer of the court or “a person appointed by the court.” It is common practice to appoint a party for the purposes of seizure and sale. It is appropriate to do so except in circumstances where the intervention of the Sheriff or an officer of the court such as the Registrar is required. It is more cost-effective for the parties not to appoint the Sheriff or a Registrar, and the Court should not do so unless the case requires.
As stated, the Court may appoint a party as an Enforcement Officer. An Enforcement Officer may enter and search real property, enter and eject from a property any person who is not lawfully entitled to be on it, take possession of or secure against interference any property the subject of a warrant, remove any personal property the subject of a warrant from the place where it is found, place it in storage or deliver it to another person or place for a purpose authorised by the warrant.[18]
[18]Rule.25B.68(a)-(d).
Resolution
By his affidavit, the respondent made an open request for the Court to examine the Court file deposing, in part, to a belief that under the Rules and under the Act “the applicant and JS Law’s conduct throughout this matter have reached the threshold for dismissal of [the applicant’s] case, I realise these are matters for the [Court] to ultimately decide and I further accept and respect this honourable Court’s decisions.” As stated, I have reflected upon the application that I should examine the file for these purposes and determined that I should do so. In my view, the matters complained of by the respondent are without substance. My further reasons for that conclusion are set out below.
This Court has jurisdiction under the Act to make orders by way of enforcement. The parties’ consent order made on 9 October 2019 was a decree within the meaning of the Act. It was not suggested, by reason of any provision in Pt XIII of the Act, the regulations or Rules, that the order was unenforceable. I am satisfied that the respondent has had clear notice of the terms of the order (a rough copy of which he initialled).
Paragraph 1 of the parties’ consent order imposed an obligation upon the respondent to pay $17,000 by way of an adjustment of property interests under the Act. In addition, paragraph 3(c) of that order imposed an obligation upon the respondent to pay interest in default of the payment of the settlement sum within sixty days of that order; namely, 9 December 2019. The respondent accepted that despite the consent orders to pay the applicant $17,000 on or before 9 December 2019, he had not done so.
Prima facie, the applicant is entitled to enforce the Order.
Consent orders were made
The primary basis on which respondent opposed the enforcement application is that, as he contends, the consent orders are null and void because they were not made by consent. The respondent contends that “the Consent Orders on file could not have been made by “consent” of the Respondent, nor could be a fair or just settlement figure be calculated or adhered to.” Then followed in the respondent’s affidavit a series of bullet points which it is necessary to set out:
· Neither the final copy or the certification page contained any signatures of the parties, except Julian Smiths of JS Law
· I did not see, speak or negotiate with the applicant had conciliation, and cannot confirm that she was even there.
· I do not know whose signature is on the rough copy with my initials, as there is no name or date and I did not witness the signature.
· The orders offered at Conciliation Conference where (sic) Consent Orders, yet the consent orders on file have now been changed to state “final consent orders”, which would indicate all aspects of section 79 of the Family Law Act have been exhausted, which is furthest from the truth.
· The interim orders called for an adjournment of conciliation as a result of the breaches.
· The breaches by the applicant, including the suppression of documents, providing false information and misleading the Court all directly relate to section 79A of the AFLA 1979 which provide the grounds for orders to be set aside.
· Procedural fairness had not been given as per the rights of both parties, and an affidavit was not submitted to his Honours chambers confirming this, and other things, as required by the Honourable Judge Kelly as evidenced in the transcript of proceedings in Annexure W-02. (emphasis added)
The suggestion that the applicant did not consent to the terms of the Order are undermined by her attempts to enforce it and her evidence. Given the respondent’s sworn evidence that he initialled each page of the ‘Rough copy’ of the order, coupled with the fact that the order was made by a Registrar on 9 October 2019 and that the respondent’s first assertion respecting the question of consent by either party only emerged in answer to the enforcement application when the respondent filed his affidavit on 18 March 2020, I am not satisfied that the respondent had not signified his assent to the terms of the proposed consent order on 9 October 2019. I reject his evidence and submissions to the contrary. It has long been recognised that parties may agree matters of significance and do so in the most rudimentary form. [19] Certainty of agreement is of real importance and the court should strive to uphold parties’ bargains.[20]
[19] Cf Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll LR 359.
[20] Meehan v Jones (1981) 149 CLR 571, 589 (Mason J).
Another difficulty confronting the respondent's contention is that, consistently with usual practice, a copy of the orders is retained on the Court file, bearing the initials of applicant and respondent respectively. I am satisfied that the parties entered into a compromise to settle all issues in dispute in the proceeding and intended to enter a legally binding and concluded agreement.[21] It is not to the point that the respondent did not witness the applicant to initial each page of their compromise on 9 October 2019. There was no necessity for either of them to do so. Equally, on one view, there was no necessity (apart from the good sense of doing so out an abundance of caution) for the rough copy of the orders to be initialled at all – no transfer of land was involved.
[21] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, [34] (The Court).
Insofar as the question is approached by reference to whether the respondent now asserts he did not consent to final orders, it is of great importance to recognise that any question of subjective intention is irrelevant[22] – what is of decisive significance is what Final Orders provided. Those orders expressly provided that the applicant was to be paid a stipulated sum by one or other of two means – payment by 9 December 2019 or payment from the net proceeds of a sale.
[22]Compare Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
The parties’ compromise was embodied in a consent order that was made on 9 October 2019 and from which there has been no appeal.
I reject the contention that the parties did not consent to the Order.
Approval of the settlement
The respondent also contends that the order is null and void by reason that it was not submitted to a judge of the Court for approval.
Registrars of the Court have delegated authority and power to make an order, the terms of which have been agreed upon by the parties.[23] This objection is without substance.
[23]Federal Circuit Court of Australia Act1999 (Cth), s.102(2)(m); Federal Circuit Court Rules 2001, r.20.00A; Harris v Caladine (1991) 172 CLR 84.
Absence of trustees’ approval
The respondent also relies upon statements made in the course of the directions hearing on 31 July 2019 respecting the need for the consent of a trustee in respect of any adjustment of superannuation interests.
While the Court had in contemplation that the parties might save themselves the costs of a further hearing at which to seek approval of the settlement, having regard to the terms which were ultimately agreed – and which relevantly included only the payment of money – a consent order was made by the Registrar on the date of the Conciliation Conference. There was no necessity for the parties to afford a trustee of any superannuation fund procedural fairness before seeking approval of the settlement. This was not required as the settlement did not involve any adjustment of superannuation interests. Nonetheless, as will appear, the respondent now relies upon the absence of such procedural fairness as a basis for contending the settlement is void. The absence of approval by a trustee has no relevance to the present case.
Failure to comply with directions
The respondent now complains of the applicant’s failure to comply strictly with a variety of directions which were made on 31 July 2019:
a)first was that by 2 September 2019, the parties were to serve a statement of the precise orders being sought and submissions as to why the proposed orders were just and equitable. The respondent complains that the applicant failed to comply with that order and did not furnish her orders until the day before the Conciliation Conference; namely, 8 October 2019.
b)secondly, the respondent points to a further consent order contained in the parties’ engrossed minute which provided that in default of compliance with the order requiring the provision of a statement of the precise orders being sought, the Registrar conducting the Conciliation Conference would be at liberty to adjourn that conference and to make orders for costs:
The Registrar is at liberty to make orders adjourning the Conciliation Conference, including with respect to any costs of any such adjournment.
c)thirdly, complaint is now made of failure to make discovery;
d)fourthly, the respondent relies upon a further order made on 31 July 2019 that the parties provide one another, at least seven days before the Conciliation Conference, a market appraisal or valuation of any asset in issue, a copy of the actual terms of orders required to give effect to their settlement proposal;
e)fifthly, the respondent now complains that, having emailed the applicant’s lawyers on 7 October 2019 complaining of lack of disclosure, he received an email ignoring his complaint;
f)sixthly, and in a similar vein, the respondent is also critical of the applicant for what he asserts to be a delay on her part in securing a valuation of the A Street, Suburb B property. For similar reasons, it may be recognised that no attempt was made before or at the Conciliation Conference to adjourn the mediation so as to allow either party to obtain more detailed information in relation to this valuation.
The respondent seeks to rely upon the applicant’s non-compliance as constituting a breach of the 31 July orders such as would undermine the enforcement of the consent Order. The cogency of these complaints fall for evaluation in the context that the parties attended the Conciliation Conference and, as I conclude, entered into a final binding and enforceable agreement which is now embodied in a consent order.
As to this, the respondent relies upon an extract of the transcript of the hearing on 31 July 2019 in which the Court stated as follows:
I will add order 6, which is in default of compliance with paragraph 5 of this order, the Registrar is at liberty to make orders adjourning [the] Conciliation Conference including with respect to cost of any such adjournment. Now, can I say to the parties’ lawyers, it has much of the protection of the lawyers as the parties that I provide a spur to you to make sure that orders are filed by Monday 2 September? That gives you the better part of five or six weeks to stand back, look at them and say, “Right, on that supposition. That’s where the negotiation begins.” But if you don’t do that and you turn up to the Conciliation Conference, the consequences aren’t not just for you of the lawyers. Other litigants, of whom there are so many in this Court every day, who would have had that date have been denied that date. So he could make sure that all those things are done.
As the extract of the transcript above also indicates, at the directions hearing on 31 July 2019, I granted the parties liberty to apply. Neither party exercised the opportunity which was extended to them to seek such liberty in advance of the Conciliation Conference.
There is no evidence of any sustained or significant complaint being made by the respondent in relation to the applicant’s non-compliance. Nor for that matter is there any evidence whether the respondent himself complied with these orders.
All those matters aside, Order 6 was made, in effect, as a direction to the Registrar reminding him or her that it may well be appropriate to make costs orders if the Conciliation Conference was adjourned by reason of the failure of one or other of the parties, or both of them, to comply with Court orders. Instead the Registrar assisted the parties in a mediation.
At the Conciliation Conference which was afforded to them, the parties elected, and agreed, to settle the proceeding rather than pursuing any contest in relation to the adequacy of disclosure or to make any submission pressing the Registrar to adjourn the Conciliation Conference. In my view, it is clear that any of the several complaints of the kind which the respondent might have had to obtain an adjournment of the Conciliation Conference has been subsumed in the respondent’s election to agree in the making of final orders on that date. I reject each of these bases for now opposing the present application.
Duress and deceit
Further, and relying on the matters above, the respondent makes a generalised allegation that both “Juliana Smith and Registrar Russell have derived these Consent Orders from deceit, duress and breaches of the [31 July 2019] Orders and directions is (sic) clearly evidenced above. It is evidenced that there has been a premeditated plan by Juliana Smith to progress the applicant’s case without any basis or substantial grounds to support it,” and on this basis the respondent sought dismissal of the applicant’s case coupled with an order for the removal of the caveat. These were untenable allegations. To establish duress it must be demonstrated that the target of that conduct was subjected to threatened or actual unlawful conduct by which illegitimate pressure was applied such as to cause a party to capitulate and execute an agreement when it was, objectively, against better judgment to do so.[24] There was no basis for a suggestion that the orders were procured by deceit or duress.
[24]Scott & Scott (No.3) [2019] FamCA 936, [56]; Thorne v Kennedy (2017) 263 CLR 85, [26]-[29]; Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149, [66]).
Contrastingly, there was a sound basis upon which the applicant, and her solicitor, could properly contend that there was a viable basis to press a claim for an adjustment of the parties’ property interests – the parties had been in a relationship of some eight years duration and that relationship had come to an end. Accordingly, the conventional basis upon which they had enjoyed, in common, the use of their respective property had also come to an end. At the least, those matters provided a proper basis for the contention that prima facie it would be just and equitable for there to be an adjustment of the parties’ property interests.[25] Nothing was suggested by the respondent to support a contrary conclusion.
[25] Stanford & Stanford (2012) 247 CLR 108.
I reject each of the submissions as to duress and deceit as untenable.
Other matters
The respondent now deposes that in consequence of an audit by the Australian Tax Office his company has been found liable for failure to pay its superannuation obligations to employees and/or subcontractors. It appears that the total of that assessed liability exceeds $150,000.
For reasons which are not apparent, the respondent relies upon these events, which culminated in an audit result on 30 January 2020, as vitiating the parties’ consent orders. The respondent complains that in the current economic climate he is in a difficult financial position and which he contends is worse than that of the applicant. While the difficulty of the present economic climate may be accepted I do not accept that the applicant is financially better off than the respondent.
The respondent complains of a variety of matters relating to the applicant’s superannuation, her removal of monies from an offset account after separation and the sale of supposedly undisclosed assets (hobby gear). Difficulties confronting these contentions include that, objectively, each of these matters were known to the respondent when the matter was resolved on 9 October 2019. The quantum of the parties’ superannuation had been disclosed; the withdrawal of monies from the offset account had been the subject of earlier complaint and finally, in the respondent’s first affidavit, he had referred to the applicant’s sporting equipment as including hobby gear. The complaints are groundless.
The respondent also complains of the impact upon him of the COVID-19 pandemic. He does so without reflecting upon the circumstances that, by the terms of the parties consent order made on 9 October 2019, the parties agreed as to the risk which each of them would bear in consequence of those orders.[26] Had the orders been complied with in a timely way, the present application would not have arisen.
[26]Compare Monticone & Monticone (1990) FLC 92-114, [22]-[23]; Blackwell & Scott [2017] FamCAFC 77; Noetel & Quealey (2005) FLC 93-230; Trask & Westlake [2015] FamCAFC 160.
The respondent also contends that the settlement as embodied in the consent orders was simply a replication of the relief sought in the initiating application. I reject that submission. The Initiating Application sought payment of a sum as the Court considered to be just and equitable. The respondent seeks to rely upon his Response which, as he deposes, “I regard as my view still”. Again, the matters raised by his Responses have been subsumed in the parties’ consent orders. The difficulty in the proposition is that it simply ignores his other evidence that he placed his initials upon the rough copy of the orders which were agreed on 9 October 2019. No cogent evidence was adduced by the respondent to persuade me that he had not freely given his consent to the order made on that date. Certainly, nothing deposed to by the respondent raised to the level of shifting the onus of proof to the applicant on this issue.
For the avoidance of doubt, I reject the respondent’s “Submissions” as set out in his second Response and affidavit that the question whether the applicant had a caveatable interest in the party was a matter that should best be left for trial. It is not necessary to do so since the parties agreed in consent orders to settle all of the matters in dispute between them. It follows that any cause of action which the respondent might have had to obtain a judicial determination of any contest on the question whether the applicant had a caveatable interest in the property has merged in those final orders.[27] As the notations to the consent order provides the parties intended that those final orders would finally sever their financial relationship.[28]
[27]Port of Melbourne Authority v Anshun (1981) 147 CLR 589, 608-611 (Brennan J).
[28]Act, s.90ST.
Discretionary considerations
In compliance with a notice given to him by the applicant’s solicitors, the respondent filed a financial statement affirmed on 13 March 2020 from which it appears he has an average weekly income of $1,020; expenditure of $1,190; property having a total value of $703,775; superannuation of $14,440 and liabilities of $705,118. However, the respondent’s affidavit did not descend to support any of the figures in his financial statement.
Moreover, the figures contained in that financial statement stood in contrast with the data contained in his financial statement filed on 25 July 2019 from which it appears he had an average weekly income of $1,327; expenditure of $1,387; property having a total value of $697,885; superannuation of $13,642 and liabilities of $330,327.
Apart from the evidence indicating that the ATO has determined by way of audit that the corporate vehicle which he utilises to carry on his business activities has been subjected to statutory liability for non-payment of superannuation contributions, no attempt was made to explain how his liabilities had increased in the period July 2019 to March 2020 from $330,327 to $705,118.
From her financial statement, the applicant has an average weekly income of $327. There is also evidence that the applicant is suffering hardship as a result of the non-payment of the settlement sum.
Relief
The applicant is entitled to declaratory relief confirming the total sums which are owed to her by the respondent. The sum of $17,000 remains unpaid pursuant to paragraph 1 of the Order.
The parties were agreed that interest be payable on that sum pursuant to paragraph 3(c) of the Order. I am satisfied that interest should be paid from the date by which payment was due; namely, on 9 December 2019.[29] Presently, the prescribed rate at which interest is payable is the sum of 6.75%.[30] I will allow interest at the sum of $3.14 per day. As at 3 April 2020, the applicant is entitled to interest for a period of 114 days or $358 and thereafter at the daily rate indicated above.
[29]Act, s.117B(1).
[30]Family Court Rules 2004 (Cth), r.17.03(a); Reserve Bank of Australia Cash Rates.
The applicant also seeks to enforce the order for costs made by a Registrar of the Court when dismissing the respondent’s Contravention Application. Such order was made on 9 December 2019, fixing those costs in the sum of $2,200.
In addition, the applicant seeks the costs of and incidental to this enforcement application. The applicant’s solicitor filed evidence explaining the basis on which the claim for costs was made. The sums claimed for costs were as follows:
a)professional costs – contravention hearing: $ 3,613
b)counsel’s fees – contravention hearing: $ 2,200
c)professional costs – enforcement hearing: $ 6,220
d)counsel’s fees – enforcement hearings: $ 6,600
Total: $18,633
The applicable principles are settled. In general, parties to a proceeding under the Act should bear their own costs: Act, s.117(1). However, power is conferred on the Court to make such order as to costs as it considers just where it is of the opinion that circumstances justify it in doing so: s.117(2). The power is subject to a number of provisions, including s.117(2A) and the Rules of Court.
I am of the opinion that the circumstances of this case justify that I consider whether an order for costs should be made. While it is not necessary to make particular findings in relation to an order for costs,[31] I have considered the principles applicable to each paragraph of sub-s.117(2A) and each of the factors that it prescribes. In addition, it is necessary to recognise that one s.117(2A) factor alone may suffice to provide the foundation for a costs order.[32]
[31]In the Marriage of Kelly (No.2) (1981) FLC 91-108.
[32]Citing Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123, [41] (Kay, Warnick & Boland JJ).
For the reasons above, I consider that the respondent’s conduct since the making of the consent orders reflects a calculated design to delay the proper discharge of the obligations which he agreed to perform by 9 December 2019. The scale of the material which he filed, in effect, on the eve of the hearing, fortifies me in my view that the respondent wished to rely upon any point that he could identify. The Court has been required to consider each of those points and has rejected them.
I am not satisfied that the costs as claimed are reasonable. In particular, an order for costs in respect of the contravention proceeding has been made and it is not open to me to vary those costs in this application. The applicant is confined to recovery of costs of $2,200 for that Contravention Application. Similarly, I do not accept that the whole of the costs claimed in respect of this enforcement application are warranted; however, I do accept that the costs of the application have been increased as a result of the respondent’s request that the matter be relisted. An order for costs does not operate by way of penalty but is to compensate a party where the circumstances require. I am satisfied that it is appropriate to fix the applicant’s costs and disbursements of and incidental to enforcement order and application in the sum of $8,000.
Suspension of order – Rule.25B.13(m)
Following the hearing, the respondent transmitted an email to chambers to which he attached a letter dated 26 March 2020 entitled RE: Mr Walbank – Home Loan Refinance which concluded with advice that the writer anticipated “the application will be approved within the next couple of weeks.” As raised with counsel for the applicant, it is accepted that the Court has power to suspend the operation of an enforcement order. Notwithstanding that the respondent was initially allowed sixty days to pay the settlement sum and that a further period of over three months has elapsed, I am prepared to suspend the operation of the order for seizure and sale for a further period, thereby allowing the respondent until 29 May 2020 to pay the sums which are due.
Conclusion
For the reasons above, I consider there is no merit in the objections that have been raised by the respondent to the Enforcement Application. Nor can I discern any merit in relation to each of the several matters raised by the Response to the application, answering affidavit or from my review of the matter as the respondent requested. While the applicant is entitled to the substantive relief that has been sought, I have moulded the orders in a manner which is consistent with my findings in these reasons and in accordance with the Rules of Court.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 3 April 2020
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