PATEY & MALLOCH

[2019] FamCA 559

FAMILY COURT OF AUSTRALIA

PATEY & MALLOCH [2019] FamCA 559

FAMILY LAW – ENFORCEMENT – where husband required to withdraw caveat and failed or neglected to do so – where Registrar directed to sign documents in place of husband.

FAMILY LAW – ENFORCEMENT – procedural fairness where husband leaves court prematurely.

FAMILY LAW – COSTS – husband to pay costs in proceedings necessitated by his default and in which he was wholly unsuccessful.

APPLICANT: Mr Patey

RESPONDENT: Ms Malloch

FILE NUMBER: MLC 7214 of 2008

DATE DELIVERED: 14 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Heinz & Partners

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1.Pursuant to s 106A of the Family Law Act 1975 a Registrar of this Court sign the withdrawal Caveat No. … in the place of the husband.

2.The husband pay the costs of and incidental to the enforcement proceedings this day in the sum of $1991.00 and payment be made within 30 days.

3.Otherwise the Application in a Case of the wife filed on 30 July 2019 be and is hereby dismissed.

4.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

AND IT IS NOTED that the husband left the precincts of the Court during the course of the hearing and was warned that the matter would proceed in his absence if he left the Court.

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 Patey & Malloch 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 MELBOURNE

FILE NUMBER:  MLC 7214 of 2008

MR PATEY

Applicant

And

MS MALLOCH

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the judicial duty list, and it is the second application issued by the applicant seeking to perfect the final orders which were made on 3 September 2018 in relation to financial matters.  The parties cohabitated but did not marry. I will refer to the applicant as the wife and the respondent as the husband.

2. The final orders deal predominantly with parenting matters concerning the twins X and Y.  Notably, paragraph 1 of the Order made on 3 September 2018 records the girls’ date of birth incorrectly. They are 14 years old.

3. Paragraph 13 of the Order provides for each party to retain, to the exclusion of the other, all property and items in their respective name or possession as at the date of the Order (3 September 2018).  A real property at B Street, Suburb C which stands in the name of the wife (“the property”). 

4. Paragraph 12 of the final order provides:

   The applicant father at his sole expense not later than 28 September 2018 provide the respondent mother evidence of a withdrawal of caveat lodged by him or on his behalf over [the property].

5. The husband did not comply with paragraph 12 of the Order of 28 September 2018.  The wife seeks that the Registrar sign a withdrawal of caveat and that the husband pay the wife’s costs of her enforcement proceedings.

6. Today, Mr Dean, solicitor, appears on behalf of the wife who attends Court, and the husband initially attended Court in person.  The matter was called shortly after 10 o’clock, and following the callover, I heard an outline of the matters in issue.  I directed that the husband file a Notice of Address for Service[1] and he said he would do so. My court officer handed him a blank form.

   [1] Rule 8.05 of the Family Law Rules 2004 provides, inter alia, that a party must file a Notice of Address for Service if that party seeks to be heard by the court. The address for service must be an address in Australia where documents can be left or received by post and include a telephone number. The address may also include a facsimile number and an address for service by electronic communication (email).

7. The husband agreed that he had not signed the withdrawal of caveat and said that he was disinclined to do so whilst items personal to him and recorded in Notation A to the final orders had not been made available for collection by him or delivered to him. The notation to the orders reads as follows:

   That the father intends to notify the mother, with not less than seven days written notice of his intention to attend the real property, in the company of Victoria Police officers, for the purpose of collecting his personal items, such as tools, cupboards, parts (and the like), from the sheds at the property, without the need to enter into the residence of the real property.

8. The husband appeared to be under the misapprehension that his obligation to provide proof of a withdrawal of caveat having been lodged by him in respect of the property was conditional upon him receiving or having access to the personalty referred to in the notation. 

9. There are a few things to note with respect to the husband’s position.  The description of the husband’s belongings is merely in a notation. It is not an order. The items are incorporated by reference into paragraph 13 of the Order; however, there is no obligation placed on the wife in paragraph 12, 13 or by the notation to make those items available to the husband at any particular date or time. It is merely that, as between the husband and the wife, the wife did not become entitled to the items described in the notation by virtue of the standard provision that each party retain absolutely what the property in his/her possession custody or control as at the date of the order.

10. The husband said that the wife had told him that some of the items he expected to recover, in particular, a hoist, was in the possession of somebody else.  On this basis the husband said that he would not sign a withdrawal of caveat, became obstreperous and then left Court abruptly.  Prior to him leaving the Court, I made clear to the husband that the matter would proceed in his absence, and he left nonetheless.

11. Subsequent to the husband leaving, the wife informed me that the hoist to which the husband made reference earlier in the day was a hoist that was in her possession when the Order was made and which she knew belonged to the husband. However, when she did not receive notice from the husband about him wanting to attend the property for an extended period, which she estimated at two years, she allowed a creditor of the husband to have the hoist on the basis that he would stop bothering her for repayment by the husband of a debt of $400.  Accordingly, the hoist is no longer in her possession. She doesn’t think that the creditor has the hoist either and she was subsequently told it was worthless. Of course, the husband may not regard it as worthless. The wife’s estimate of two years appears to be somewhat of an exaggeration because the Order was made a little less than a year ago. Anyway, the hoist has gone and delivery of the hoist to the husband was not a condition precedent to the husband’s specific obligation to provide proof of a withdrawal of caveat having been lodged in respect of the wife’s property.

12. The other order sought by the wife which I have granted is that pursuant to section 106A of the Act, the registrar of the Court be directed to sign the withdrawal of a caveat on the basis that he has refused to do so. Paragraph 12 does not expressly articulate that the husband has to sign a withdrawal or caveat and lodge same but the obligation to provide proof that he has done so by 28 September 2018 compels him to take those steps.

13. Before me, the husband advanced no reason as to why he should not withdraw the caveat other than the fact that he wanted his goods back. 

14. It is appropriate that the caveat be withdrawn and that the registrar sign the document which I am satisfied the husband is obliged to sign and has refused to sign. Hopefully the matter can be conclude today. I will stand the matter down whilst the wife’s practitioner sees the Registrar and puts in order the application for costs that he has foreshadowed he is instructed to make.

Costs

1. The matter which remains for determination is the issue of costs.  That falls in two categories.  The first is the professional costs and disbursements incurred by the wife in making the applications to obtain the order that she obtained today, and, second the cost to lodge the withdrawal of caveat which should have been lodged by the husband but which will now be lodged for registration by the wife’s practitioners.

2. The solicitor for the wife originally drew the application or professional costs and disbursements to seek indemnity costs. Notwithstanding that there has been non-compliance by the husband with the final orders, the circumstances of this case do not stile me as exceptional nor impel me to make an indemnity costs order. I have directed that the wife’s solicitor prepare a list of costs drawn in accordance with schedule 3 of the Family Law Rules 2004.  And he has done so.

3. The professional costs are in two parts, one from 17 May 2019 to 26 June 2019 in relation to an application which was made and ultimately not granted.  Then there are the costs from 21 June 2019 to today. 

4. I have taken into account the legislative provisions set out in the Family Law Act, that is, starting with paragraph 117(1) which provides that each party to proceedings under this Act is to bear his or her own costs except where there are circumstances which in the opinion of the Court justify an order being made for on party to bear the costs (or part of the costs) of another party. In this case, I am satisfied that the father has failed to comply with the orders made on 3 September 2008 and has unreasonably not signed the withdrawal of caveat.  I am therefore satisfied that there should be a costs order in favour of the wife.

5. In considering what order, if any, ought to be made, I have regard to the matters set out in section 117(2A). 

6. The wife is in a modest form of employment.  She’s a cook and earns a gross salary of $1100 per fortnight.  She has the property referred to in the orders which is worth approximately $100,000. There is no registered security interest such as a mortgage over the property, but there are apparently a number of caveats of which the husband’s is only one.

7. The husband, I am told from the bar table, is a tow bar mechanic.  The last statement of financial circumstances that I can see filed by him was filed on 18 April 2016 at which time he was represented by solicitors and deposed to a total average weekly income of $290 from being unemployed.  He did not indicate what his employment was prior to leaving Court today although there was some discussion about tools that he needed to use for his work.

8. Although the wife’s position, prima facie, may appear to be somewhat better than the husband’s, neither party can be said to be in such financial circumstances that they can readily afford to meet orders for costs in these proceedings or even less to pay for costs unnecessarily incurred. There is ample authority in this Court that impecuniosity, is not a bar to an order for costs being made where there are circumstances otherwise that justify an order, and that is the position here.

9. I’m informed that neither party is in receipt of legal aid. 

10. In relation to the conduct of the parties to the proceedings for such matters as pleadings, particulars, discovery, inspection, directions to answer questions and the like, this is not a matter of particular importance as it’s a fairly simple application.  I note, however, that the husband did not file and serve any material in response which is entirely appropriate if he deposed not to oppose the appropriate, but it does appear that he attended Court with the intention of opposing the application before he left abruptly.  This was not a matter which the practitioners for the wife could approach thinking they would not have to make out their case today, that is, they did not think that – there was no indication that the husband would concede or fail to – concede to the application.

11. I’m satisfied that the proceedings were necessitated by the failure of the husband to comply with the final orders within the meaning of section 117(2A)(d). This is the most compelling factor supporting an order for costs being made in the wife’s favour.

12. I am also satisfied that the husband has been wholly unsuccessful in these enforcement proceedings. Paragraph 117(2A)(e) refers to a situation where proceedings as a whole have been unsuccessful. I am not referring to the parenting and property proceedings but to this last discrete enforcement proceeding. The fact that the husband did not file a response nor any supporting affidavit material impacts upon the quantum of costs. His opposition has put the wife to further expense.

13. I am informed and take into account that the wife and her solicitor have a costs agreement pursuant to which the wife will be billed more than is recoverable under this application calculated in accordance with Schedule 3 to the Rules.

14. As indicated, I am satisfied that there are circumstances which justify an order that the husband pay the wife’s costs of the proceedings. I turn to quantum or the amount for which the husband ought to be liable.

15. The first lot of costs are $1311.89, and the second lot of costs are $1391.02.  My perusal of the itemised list of costs indicates that both are reasonable and within the range.  I’m not prepared to allow the costs of the first set of proceedings save to the extent that they were foundational to the current proceedings and constituted attendances upon the client which were not repeated in this most recent application.

16. The costs claimed total $2703. I propose to fix costs so as to save the parties and the Court the time, trouble and expense of a costs assessment. I consider it reasonable and proper to allow the amount of $1991. I will grant a stay of 30 days.

ORDERS DELIVERED

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 August 2019.

Associate: 

Date:  19 August 2019