Percy & Percy

[2025] FedCFamC2F 699

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Percy & Percy [2025] FedCFamC2F 699

File number(s):	MLC 6086 of 2014
Judgment of:	JUDGE MURDOCH
Date of judgment:	27 May 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Substantive review – where a declaration is made that the husband owes the wife $22,200 pursuant to final orders – where the husband by way of Review Application seeks that such declaration be discharged – where the wife seeks the Review Application be dismissed, but does not seek orders for enforcement – where the Review Application appears to have arisen on a misunderstanding as to the effect of the declaration – where a declaration as to a sum of money due and payable is not an order as to enforcement – where submission of husband not to exercise discretion is wholly misconceived - where the husband is represented by a litigation guardian – Review Application dismissed.
Legislation:	Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rule 11.05
Division:	Division 2 Family Law
Number of paragraphs:	10
Date of hearing:	27 May 2025
Place:	Sydney
Solicitor for the Applicant:	Litigant in person
Solicitor for the Respondent:	Ms B Percy acting as Litigation Guardian

ORDERS

MLC 6086 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS PERCY

Applicant

AND:

MR PERCY

Respondent

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	27 MAY 2025

THE COURT ORDERS THAT:

1.The Application for Review filed by the Husband on 14 May 2025 is dismissed.

2.The declaration as contained in paragraph 4 of the orders made on 13 May 2025 is confirmed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE MURDOCH

1. These are proceedings commenced by Ms Percy (“the wife”) on 1 October 2024 seeking to enforce property orders. Ms Percy appears for herself in the proceedings. The husband is Mr Percy. He was appointed a litigation guardian on 13 May 2025. His litigation guardian, Ms B Percy, also appears in person.

2. The wife’s enforcement application proceeded to a defended interim hearing on 13 May 2025 before a Senior Judicial Registrar. On this day a declaration was made, pursuant r 11.07(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) that the husband owes the wife a total of $22,200 in accordance with Order 17 of the final orders made on 11 December 2014 (“the final orders”).

3. Listed before me today is the Application for Review filed by the husband on 14 May 2025. Such Application seeks that the declaration made on 13 May 2025 be discharged and the Application - Enforcement thus filed on 1 October 2024 be dismissed. The husband, via his litigation guardian today, has conceded that the sum of $22,200 has not been paid pursuant to the final orders, and that such sum remains due and payable. It is the husband’s case that the court, in its discretion, should not enforce the order.

4. The wife opposes the Review Application and seeks that it be dismissed. She does not seek any further orders or declarations, advising the court that she is content with the declaration made by the Senior Judicial Registrar.

5. The wife relies on the following documents:

   ·The Amended Application – Enforcement filed 17 April 2025;

   ·Her Affidavit filed 17 April 2025; and

   ·The Outline of Case filed 5 May 2025.

6. The husband relies on the following documents:

   ·The Application for Review filed 14 May 2025;

   ·His Affidavit filed 13 May 2025 and

   ·Paragraphs 1 – 17, 22 – 28, 29 – 30 and 36 – 37 of the written submissions filed 27 May 2025.

7. Neither party sought to cross-examine the other party and the matter proceeded by way of submissions only.

8. The court has declared what is owing pursuant to the final orders. No enforcement orders have been made, noting that Rule 11.05 states that an obligation to pay money may be enforced by:

   (a)an order for seizure and sale of real or personal property, including under an Enforcement Warrant;

   (b)an order for the attachment of earnings and debts, including under a Third Party Debt Notice;

   (c)an order for sequestration of property;

   (d)an order appointing a receiver (or a receiver and manager).

9. The application before me today appears to have arisen on a misunderstanding as to the effect of the declaration made by the Senior Judicial Registrar. The husband concedes that the amount is due and payable. The Wife does not seek any orders as to enforcement, merely that the declaration remain. A declaration as to a sum of money due and payable is not an order as to enforcement. The husband’s application seeking that the court not exercise its discretion to enforce when it has not done so is therefore wholly misconceived.

10. In those circumstances the application for Review will be dismissed and the declaration made by the Senior Judicial Registrar affirmed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.

Associate:

Dated:       27 May 2025