Richmond & Dwyer
[2005] FMCAfam 126
•17 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICHMOND & DWYER | [2005] FMCAfam 126 |
| FAMILY LAW – Property – whether an application is a further application for a property settlement – whether the Federal Magistrates Court has jurisdiction to entertain application – whether an application should have been made under s. 79A of the Family Law Act 1975 (Cth) – whether contravention proceedings should have been commenced. |
| Family Law Act 1975 (Cth), ss.79, 79A, 112AD |
| Nol & Nol [2002] FamCA 688 Ravasini & Ravasini (1982) 8 Fam LR 903; FLC 91-312 In the Marriage of Bray (1988) 12 Fam LR 563; FLC 91-568 Taylor & Taylor (1979) FLC 90-674 Monticone & Monticone (1989) 13 Fam LR 592; (1990) FLC 92-114 Simpson & Hamlin (1984) 9 Fam LR 1040; FLC 91-576 |
| Applicant: | CORALIE ANNE RICHMOND |
| Respondent: | MICHAEL CLAUDE DWYER |
| File Number: | PAM 2162 of 2002 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 September 2002 |
| Date of Last Submission: | 23 June 2003 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bartush-Peek |
| Solicitors for the Applicant: | Robert Tinsey Pty Ltd |
| Counsel for the Respondent: | Mr Heazlewood |
| Solicitors for the Respondent: | Campbell Paton & Taylor |
ORDERS
That the Application is dismissed.
That all other applications save as to costs are dismissed and the matter is removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 2162 of 2002
| CORALIE ANNE RICHMOND |
Applicant
And
| MICHAEL CLAUDE DWYER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife for property orders. The husband, who is the respondent, opposes the orders and seeks a dismissal of the application.
The orders that the applicant seeks are these:
·That the husband deliver to the wife at her mother’s residence at 7 Wilson Street Lawson the wife’s personalty set out in Schedule A annexed to the wife’s Form 8 filed (blank) between 11.00 a.m. and 1.00 p.m. on the second Friday following the date of this order.
·That should the husband fail to comply with order 1 for whatever reason the husband shall pay to the wife the sum of $40,205.50 within 28 days from the date of this order.
·That the husband shall pay the wife’s costs
·Such other orders as this Honourable Court deems meet.
By his Response, filed on 12th July 2002, the husband seeks these orders:
·Orders sought by the applicant be hereby dismissed.
·That the applicant wife pay the respondent husband the costs of and incidental to these proceedings.
Background
The parties were divorced on 26th May 1998. On 29th November 2001 they entered into consent orders in the Family Court of Australia at Parramatta, finalising property issues between them. They were each represented by counsel.
The orders say as follows:
i)That each party be granted leave to commence property proceedings pursuant to s. 44(3) of the Family Law Act 1975.
ii)That the husband take all actions and do all things necessary to permit the wife to collect that personalty set out in schedule A annexed to the wife’s form 7A response filed 6th June 2000 subject to order 3.
iii)That for the purpose of the implementation of order 2 hereof the husband shall make available to the wife all such items in his possession or control and the husband does not warrant that each and every item is in his possession or control.
iv)That for the further implementation of order 2 hereof the husband shall on 6th December 2001 place all the wife’s personalty under the awning at the rear of 10 Obley Street Cumnock, provided that the husband shall not be required to move large heavy items and the wife shall attend at 10 Obley Street Cumnock on 7th and 8th December 2001 at approximately 7.00 am to remove such items.
v)That the wife shall sign such documents and do all things necessary to transfer to the husband all her right title and interest in all that property situate at and known as 10 Obley Street Cumnock being the whole of the land in Folio Identifier No. (left blank).
vi)That in the event that the wife fails or refuses to sign any deed or instrument or do any act then the Registrar of this Court be empowered to sign such deed or instrument or do such act in the name of the wife.
vii)That otherwise than is provided for in these orders and as between the parties each party be declared to be the sole and beneficial owner of all that realty and personalty in that party’s possession or control.
viii)
That the wife hand to the husband at 7.00 a.m. on
7th December 2001 one brass cork screw belonging to the husband’s grandfather.
ix)That on or before 6th December 2001 the wife shall execute a transfer of the Obley Street property in registrable form to be held in escrow by the wife’s solicitor.
x)That the said transfer shall be forwarded to the husband’s solicitor by the wife’s solicitor forthwith upon collection of the personalty described in order 2, 3 and 4.
The wife complains in her affidavit of 3rd May 2002 that she attended at the premises at 10 Obley Street Cumnock on 7th December 2001 to collect her items of personalty. She deposes that a number of items were missing and she estimated that the missing items represented about half the total value of the items.
She deposes that she relied on an inspection of the items on
18th November 2001 and relied on this, as well as not being told by the husband that any of the items were missing, when she entered into the consent orders on 29th November 2001.
The wife also claims that the effect of the husband not giving any warranty, as set out in order 3, was not explained to her by her legal representative when she entered into the consent orders on
29th November 2001.
The husband deposes in his affidavit sworn 10th July 2002 that the wife arrived at the premises at Cumnock at about 7.00 am on
7th December 2001. He said that she was accompanied by four other people. He stated that they loaded a number of items into the vehicles and left about 3.00 pm. He denied that he disposed of any of the property.
Threshold Issue
The issue that needed to be resolved is what sort of application is actually before the Court. On 2nd September 2002, Mr Heazlewood of counsel, who appeared for the respondent husband, submitted that the application was in fact a further property application, or an application to vary a final property order. In either case, he submitted, the matter could not proceed. His submission that a proper action might be a contravention application, an enforcement application, or even an application under s. 79A of the Family Law Act 1975. Mr Heazlewood said that he doubted that a s.79A application would get very far.
Mr Clarke, who was briefed at that stage, submitted that if the application was in fact an enforcement application but not in the right form, then that was only a minor defect that could be cured.
He submitted, however, that it was not necessarily an enforcement application per se. It was an application that the Court make an order that an order be obeyed in its entirety, and fixing a date for that to happen.
He went on to submit that there had been an order, it had been partly obeyed, and the applicant was saying that she could prove that the items were in the respondent’s possession up to a fortnight before.
She was then saying, in effect, that she sought an order that the respondent provide those extra items of personalty at a different time. The time, he submitted, was purely a machinery matter.
Mr Clarke conceded that he could not, on the application currently before the Court, point to an authority where the Court had the power to order a payment of money in lieu of provision of the items. He did submit, however, that if the evidence pointed to certain items being missing and the subsequent order not being complied with, the Court would then be able to fix an amount of damages and order that amount to be paid, pursuant to an undertaking as to damages given by the respondent to the Local Court of New South Wales in June 2000.
Mr Clarke submitted that the application was for an order seeking an order to be obeyed.
At that stage I indicated I was satisfied on what was a threshold issue and ordered that the matter should proceed. Orders were made for made for the supply of particulars of photographs upon which the applicant sought to rely and for the filing of further affidavits.
Final hearing and submissions
The matter came back to court on 23rd June 2003, after a number of adjournments. Mr Heazlewood raised the question of the Court’s jurisdiction to hear the application as it stood. He pointed out that when the threshold question was argued, he did not have the benefit of the unreported decision of the Full Court of the Family Court in Nol & Nol [2000] FamCA 688, which, he submitted, was a case right on point.
He submitted that there was a clearly a jurisdictional question, and that the proper procedure for the wife to adopt was to bring a s.79A application.
Mr Heazlewood submitted that the Court did have power to reconsider the matter. The submission was that the wife’s application was a variation of a property order, not just a mechanical matter to enable an order to be complied with.
I considered it appropriate to hear argument on the issue.
Ms Bartush-Peek, who was then briefed for the applicant, submitted that the application was within jurisdiction. She told the Court that the applicant had prepared her own application and filed it on
7th May 2002. She had withdrawn instructions from her previous solicitors.
This case could be distinguished from the situation in Nol because there was no undertaking as to damages in that case. In the case before this Court, the applicant collected certain chattels and she complained that she had not received some of the items. The undertaking as to damages was freely given. It was a consent order. The applicant was not seeking anything more than she was entitled to out of the initial settlement.
As to what is sought, the application was deficient, she conceded, but she referred the court to the applicant’s affidavit sworn on
3rd May 2002. The schedule in Annexure A sets out the missing items that are sought in these proceedings.
The Court has jurisdiction to hear the application, she submitted. Section 112AD of the Family Law Act empowers the Court to enforce property orders.
Ms Bartush-Peek submitted that the matter needed to be heard on its own merits. She urged the Court to dismiss the respondent’s application as to jurisdiction and set the matter down for final hearing on its merits.
For the respondent, Mr Heazlewood submitted that the reference to
s.112AD was irrelevant. This is not an application to deal with a breach of an undertaking. A court can deal with a breach of an undertaking, and punish the breach by a fine, but it cannot make an order for damages.
Mr Heazlewood had prepared a written submission on the question of jurisdiction. His submission, put briefly, is this:
a)The orders sought by the applicant are in fact a further application for a property settlement.
b)As there has already been a property settlement, the court has no jurisdiction to deal with the application.
c)What the applicant is seeking is not a mechanical variation of orders, but rather a variation of property orders.
d)The variation sought is a procedural variation and the correct application is therefore under s. 79A of the Family Law Act.
The argument is that the order made on 2nd September 2002 to allow the application to proceed was an interlocutory order. The Court has power to set that order aside under Part 16, R. 16.05(2) (c) of the Federal Magistrates Court Rules 2001.
The respondent contends that the orders made by consent in the Family Court on 29th November 2001 were final property orders. The Court has no power to vary a final property order. In Ravasini & Ravasini (1982) 8 Fam LR 903; (1983) FLC 91-312, the Full Court of the Family Court held:
Whether what is done is termed a consequential order or a machinery order the result is the same. The court has no power to vary the original order. It has power to enforce the order and to modify the machinery provisions of the order to effect enforcement provided that by so doing it does not affect the substantive rights of the parties.[1]
[1] (1982) 8 Fam LR 903 at 906.
The Full Court went on to say:
In determining whether or not an order may be varied as a machinery order, the enquiry must be firstly as to what part of the order is the substantive order and what part or parts of it merely follow as a necessary consequence…
The appropriate test in determining whether or not a provision in an order is one of substance or one of machinery must depend on the nature and context of the order itself, and not on the nature or extent of the variation sought. The test is an enquiry as to whether the order vests a right in a party. See Nygh J, In the Marriage of Bray (1988) 12 Fam LR 563; FLC 91-568.[2]
[2] (1982) 8 Fam LR 903 AT 907
Mr Heazlewood went to submit that there was no provision in the orders of 29th November 2001 that the applicant was to receive a cash sum in the event that the respondent failed to provide the items covered by the orders. The orders for settlement of property deprived the respondent of any entitlement of any of the chattels referred to in Annexure A and gave the sole entitlement to the applicant. The effect of the orders was to determine the substantive rights of the parties in respect of those particular items (see Nol & Nol [2000] FamCA 688 at [34]).
The intention was that the applicant would receive an agreed inventory of chattels, he submitted. What was intended if the applicant did not receive those items cannot be gleaned from the orders (see Nol at [39]). The orders were silent as to what would happen in the event that the respondent did not comply.
Mr Heazlewood submitted that if the Court were to make an order for the payment of money by the respondent to the applicant it would be a fresh order for settlement of property. The Court has no power to make a second order for settlement of property, whether under the guise of an order implementing an earlier order or otherwise (see Nol at [40] and [41]).
Conclusions
The facts in Nol (supra) are similar to those in the present case. At all material times it was common ground that the husband in that case had not complied with the terms of an order that obliged to make an identified quantity of chattels available to the wife. The wife filed an application seeking a variety of orders in the alternative.
A Judicial Registrar made the orders sought by the wife. The husband sought a review of those orders. The trial Judge dismissed the review, holding that the decision in Taylor v Taylor (1979) FLC 90-674 was authority for the inherent power in the Family Court of Australia to amend or discharge substantive orders to enable it do justice within the limits of the jurisdiction which the Act confers on it.
The trial Judge held that the order that specified chattels be transferred was a by its nature a substantive order, not a machinery order. His Honour concluded that the Court had no inherent power to make an order by way of implementation of the substantive order that, on one view, changes the basic nature of the substantive order, except as may be necessary to do justice within the limits of the jurisdiction conferred on the Court.
The Full Court held that the orders made by the trial judge fundamentally changed the substantive rights of the parties. It was not a procedural order or an order implementing the earlier consent order but merely a substantive order. The intention of the orders was that the wife receive an agreed inventory of chattels. The orders were silent as to what would happen in the event of the husband not complying with the order in relation to the chattels. The orders constituted a fresh order for settlement of property. The Full Court was not persuaded that the inherent jurisdiction of the Family Court was sufficiently broad to justify making the orders made by the trial Judge, given that those orders were orders that altered the substantive rights of the parties.
The Full Court went to say that, whilst the orders made by the trial Judge may have been just and equitable, that, unfortunately was insufficient to regard those orders as valid in circumstances where, regrettably, the Court lacked jurisdiction to make the orders. The Full Court allowed the appeal.
In my view, the decision in Nol is on point, and binding on this Court. To my mind, the existence of the undertaking as to damages does not alter the situation.
It seems clear to me that the current application is one seeking the enforcement of orders already made, combined with a provision for liquidated damages. I note that the applicant herself, on the cover sheet of her affidavit, describes the proceedings as “enforcement of property”. If that is what the proceedings are about, then the application is clearly misconceived, irretrievably so, in my opinion.
As it seems that that what is sought is not a machinery order, but a substantive order, it may be that the applicant should resort to the provisions of s. 79A of the Family Law Act to obtain the relief that she seeks (see Monticone & Monticone (1989) 13 Fam LR 592; (1990) FLC 92-114; Simpson & Hamlin (1984) 9 Fam LR 1040; FLC 91-576).
If, on the other hand, the proceedings are proceedings to enforce an existing order, then the applicant may wish to seek relief by means of
s.112AD of the Act. That procedure, of course, requires a different application and follows a somewhat different procedure. It is more than a minor modification.
In either case, the application currently before the Court is one that is not competent, that is, it is an application for orders that the Court has no jurisdiction to make. It is, on the authority of Nol, an application for a fresh property order.
As the parties were divorced on 26th May 1998, the decree became absolute on 27th June 1998. The application is therefore out of time
(s. 44(3)). The application is misconceived, and should be dismissed.
It is quite clear, however, that in this decision I have not considered the merits of the applicant’s claim that the respondent has not complied with the property orders made in the Family Court. It is open to the applicant to recommence proceedings in the proper form, either seeking enforcement of the property orders, or setting them aside.
She may well have a cause of action.
These are the reasons why I am dismissing the current application.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 March 2005
0
0
1