Pillai and Doshi (No 5)

[2011] FamCA 594

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO 5) [2011] FamCA 594

FAMILY LAW - ORDERS – Stay – Application for a stay of final parenting and property orders – Application and Amended Application for a stay pending appeal dismissed 
FAMILY LAW - PRACTICE AND PROCEDURE – Institution of proceedings – Application for re-instatement of stay application – Application dismissed due to non-appearance of the applicant husband with leave to re-institute the application – Where the respondent wife consented to reinstatement – Reinstatement allowed
FAMILY LAW - ORDERS – Where the applicant husband sought an order for the partial payment of his property and financial entitlement pursuant to the final orders of 8 March 2011

FAMILY LAW - COSTS - Circumstances justifying order – Where the hearing was required due to the husband’s conduct and the wife was not unsuccessful – Order for costs made in favour of the respondent wife

Child Support (Registration and Collection) Act 1989 (Cth), s 72A
Family Law Act 1975 (Cth), s 117

APPLICANT: Mr Pillai

RESPONDENT: Ms Doshi

FILE NUMBER: DGC 664 OF 2007

DATE DELIVERED: 26 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 26 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms McCreadie

SOLICITOR FOR THE RESPONDENT: Perry Weston

ORDERS

IT IS ORDERED BY CONSENT:

1. THAT the husband’s Application filed 1 June 2011 be reinstated.

IT IS FURTHER ORDERED NOT BY CONSENT:

1. THAT the husband and wife give all necessary instructions and do all acts and things to effect a payment of $11,000 to the husband from the joint account held in the names of the parties with the Commonwealth Bank at …, BSB … … within three (3) working days and that such monies are received by him as a partial payment of his final property and financial entitlements as ordered on 8 March 2011.

2. THAT the husband pay the wife’s costs of and incidental to the appearance of her Counsel at Court this day such costs being fixed in the sum of $1,000 and to be paid prior to any distribution of monies to be made to the husband pursuant to Order 1(iv) and Order 2 of the Orders pronounced 8 March 2011.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

4. THAT the husband’s Application filed 1 June 2011 and the amended Application filed 13 July 2011 be otherwise dismissed.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Counsel appearing for the wife.

IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi (No 5) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 664 of 2007

Mr Pillai

Applicant

And

Ms Doshi

Respondent

REASONS FOR JUDGMENT

1. This matter is again listed before me on the husband’s application for a stay of orders and other orders pending his appeal to the Full Court on both the children’s issues and property and financial matters.  Mr Pillai appears in person and Ms McCreadie of counsel represents the wife.  This matter was last before me on 6 July 2011.  That was the return date listed for the hearing of the husband’s application in a case.  On that day he failed to appear, and his non-appearance is now explained in his further affidavits filed with the Court.  I accept that it was an oversight by him, and that he always intended to appear to prosecute his various applications before the Court.

2. On 6 July 2011 I made various orders, the effect of which was to have $2,900 paid to the husband’s Westpac MasterCard account and that was in accordance with earlier orders that I had made in the s 79 property proceedings.  That payment has now been made.  I also ordered a payment of $5,000 to the wife, pursuant to my earlier orders of 8 March 2011 and that payment has also been now made.  Both payments have come from the Commonwealth Bank account at …, registered in the joint names of the husband and wife holding the balance of proceeds of sale of the former matrimonial home.  I am advised at Court this day that a balance of approximately $110,600 remains in that account.

3. The husband’s application in a case is date stamped 1 June 2011, though he strongly asserts that it was filed on or about 27 May 2011 and an incorrect date stamp has been placed on the document.  Nothing turns on that fact and no issue is made as to the previous timetable within which he had to file that application.  In any event, that is the application that was dismissed on the husband’s non-appearance before me on 6 July 2011, although that was done with a right of reinstatement.  Accordingly, the husband filed an Amended Application in a Case on 13 July 2011 and therefore both his original Application and now his Amended Application are before me.

4. On behalf of the wife, Ms McCreadie has consented to the reinstatement of the Application, and accordingly I have permitted the original Application of 1 June 2011 and the Amended Application of 13 July 2011 to be properly heard this day.  In support of each of those Applications the husband has filed two affidavits with various annexures, the affidavits being respectively filed on 1 June 2011 and 13 July 2011.  I have read each of the affidavits and their various annexures. The wife has filed a Response seeking the dismissal of the outstanding matters given that some of the orders sought by her were pronounced on 6 July 2011.  Otherwise she has taken a reasonably proactive response today to the further requested distribution of moneys to the husband from the Commonwealth Bank investment account.

5. The wife has not filed any cross appeal and thus the moneys to be paid to the husband pursuant to my original orders were in the sum of 35 per cent, but always subject to the deduction of $7,000 as identified in order 2 of those orders. I note paragraph 9 of the affidavit of the wife’s solicitor, Ms Johns, filed 22 July 2011, in which she states that the wife, by letter, agreed to no withdrawals or disbursements from the joint account, subject to the wife’s indication that she would seek a partial stay of the distribution to the husband pursuant to the orders of 8 March 2011 on the basis of a foreshadowed security for costs application on appeal. The matter of financial relevance now of concern to the Court are the questions of costs, the additional question of security for costs pending the Full Court Appeal and the Notice issued by the Child Support Agency pursuant to s 72A of the Child Support (Registration and Collection) Act1988 (Cth).

6. Pursuant to s 72A of that Act, the wife’s solicitors are required to hold a sum of $7,521 plus interest to satisfy the financial obligations of the husband. I will not make orders or any findings on those matters, but I intend to preserve the majority of the available moneys pending the Full Court appeal and the determination of all other financial issues that are of relevance in this matter.

7. As to the husband’s Application and Amended Application, there are orders sought therein which are not properly before this Court which are said to be inappropriate or scandalous in nature.  Some of the orders sought are by way of a rehearing or by way of introducing other fresh matters and I will not venture into any of those issues today.  In summary, what the husband seeks is a payment of approximately $10, 500, to him this day from the joint investment account.

8. The wife’s solicitor tendered as an exhibit marked “W1”, a letter that was written and sent to the husband on or about 21 July 2011.  The husband acknowledged receipt of the letter.  That letter effectively proposed a payment out of some money to the husband.  At the time the letter was written it was on the basis that $10,000 would be withheld pending costs and security for costs.  Ms McCreadie addressed the Court on the basis of the additional child support issue now being of primary concern to her client and of importance to the Court.  I have had regard to all of those matters.

9. In the husband’s most recent affidavit he annexed the account from Auscript to provide the transcript of the hearing that occurred in December 2010 and January 2011.  The costs equate to a total of approximately $10,500, including GST.  Separately, the husband stated during the hearing that he made submissions before Strickland J to have the Court obtain and provide the transcript, but without success.  That matter has therefore been dealt with by the Court and I will not order any transcript to be provided by the Court and will not otherwise consider the matters that his Honour then had before him.

10. It is not for the Court to tell the husband how to spend the money released to him.  If he wishes to spend the money on a transcript of past proceedings, that is his choice.  It may well be that the transcript is necessary for the Full Court appeal.  The husband has advised the Court today that the appeal will be listed for October 2011, subject to his compliance with the court timetable and the filing of all documents by 24 August 2011.  I take that disclosure of the husband on face value and will deal with the issue of the cost of the transcript in the context of the concessions made on behalf of the wife by Ms McCreadie.  I will release a sum of $11,000 to the husband, but only as a partial release of his property settlement entitlement pursuant to my orders of 8 March 2011.  I very carefully say to the husband in his presence, and with his understanding, that these are not additional monies paid to him, they are part of the final property settlement and how he spends the sum is his choice, and he will no doubt bring due care and thought to those issues.

11. There are various other orders that the husband sought in his Amended Application that do not fall within the ambit of a stay application and that should not have had time abridged to be listed today.  They were certainly not within the scope of a reinstatement application.  I emphasise that what I permitted the husband to reinstate was his Application of 1 June 2011, in which ten separate orders were sought.  Some of those orders were extraneous and/or not properly then before the Court.  He now seeks effectively 18 separate orders, and I will not permit the extension of the Amended Application to incorporate those orders that are not properly before the Court and are not the subject of any reinstatement application.  I emphasise again that I will not rehear any of the matters that were the subject of my orders and judgments in February and March 2011.

12. The children’s matters and the property and financial matters are all the subject of an appeal and it is strictly now before the Full Court.  Insofar as the husband has foreshadowed orders sought in respect of children’s matters and the alleged non-disclosure of information as to the children and the like, I accept the response of the wife in her affidavit filed 30 June 2011, and in particular paragraph 13 thereof.  In any event, the husband has confirmed that he has not complied with any of the preliminary requirements that were in place in the orders to be undertaken by him, and completed before any time with the children commenced, or which provided the basis for him to spend time with his children.  Under my orders, unless and until those actions are taken by the husband, then the orders for time to be spent with his children do not apply.  That remains the current circumstances and the husband should well and truly understand each and every one of those matters.

13. I will not otherwise order the payment of any further money to the husband.  That is appropriate having regard to the financial need to preserve some moneys that may be available for costs if and when ordered, or for security for costs or for child support arrears or otherwise as the Full Court may direct.  To pay out any other money to the husband over and above the $11,000 would be to bring about a situation which may cause loss to the respondent wife or deprive her of the benefit of the final orders particularly if the husband’s appeal is unsuccessful and he is unable to meet any successful application for security for costs brought by the wife on appeal.  These are matters that I have considered in these brief ex tempore reasons, delivered without rising from the bench.

14. In summary, then, I will order that the husband’s application be reinstated.  I will permit a payment of $11,000 to the husband as a part payment of his property and financial entitlement pursuant to the orders of 8 March 2011, and will authorise those moneys to be paid from the Commonwealth Bank joint account at … .  I will not make any payment for arrears in child support.  That was foreshadowed by Ms McCreadie on a saving of interest charges to the husband, but he is opposed to that course of action. The husband challenged the payment and quantum of child support and I do not have sufficient evidence before me, and in any event it has arisen only in the submissions of counsel this day, and they are not matters that I would act upon in these proceedings.

15. I ordered costs against the husband last time in a modest sum of $475.  That sum was to be paid out prior to any distribution of money to him, as I provided for in order 6 of the orders of 6 July 2011.  It is clear the only reason that this hearing was required today is because the husband was not here, in court, present on the previous hearing date because of his own inadvertent mistake.  The wife should not pay or be responsible for her costs of that mistake, however innocent it may have been. 

16. The principle enshrined within s 117 of the Family Law Act1975 (Cth) is that each party should bear their own costs of, and related to litigation in this Court. That however is subject to s 117(2) which provides that a court may make an order for the payment of costs if it considers that it is just to do so. The factors to be considered are clearly identified in s 117(2A) and I have had regard to each of those matters. I am acutely aware of the financial circumstances of each of the parties. I have assessed the conduct of the parties, and particularly that of the husband in the proceedings and his non-appearance when his Application was first listed before the court on 6 July 2011. I balance those considerations with the fact that I have determined that a sum of $11,000 is to be paid out to the husband in part payment of the husband’s property and financial entitlement pursuant to the orders of 8 March 2011. The wife has not been unsuccessful in these proceedings as the husband’s application for a stay has not been ordered by the Court.

17. I intend to make an order for costs fixed in the sum of $1,000 today, which are less than the amount claimed by Ms McCreadie of $1,320, as this matter has occupied only seventy minutes of the Court’s time.  Likewise, the order for those costs will be made on the basis of that sum being paid out prior to any distribution of money to the husband pursuant to the orders of 8 March 2011.  I will have these reasons transcribed, placed upon the court file and forwarded to the parties.

I certify that the preceding Seventeen
(17) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
as revised by His Honour delivered on 26 July 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………