Snapiri and Cresswell

[2012] FamCA 359

FAMILY COURT OF AUSTRALIA

SNAPIRI & CRESSWELL [2012] FamCA 359

FAMILY LAW – ENFORCEMENT OF ORDERS – Claim that wife has failed to comply with orders

APPLICANT: Ms Snapiri

RESPONDENT: Mr Creswell

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1535 of 2010

DATE DELIVERED: 18 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 18 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr A Strum

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent

Orders

IT IS ORDERED THAT:

1. This matter remain listed before me on Tuesday 1 May 2012 at 10.00 am NOTING THAT before the Court is the wife’s application in a case filed 14 December 2011 and the husband’s amended response to an application in a case filed on 4 February 2012.

2. Leave is granted to the husband to apply on 1 May 2012 for the matter to be dealt with on an unopposed basis.

3. The reasons for decision this day be transcribed and when settled a copy be placed on the Court file and two copies be sent to the solicitors for the husband.

4. IT IS DIRECTED that the solicitors for the husband write to the parties’ adult son, Mr Snapiri, at … F Street, Suburb B, Victoria, 3204 enclosing a copy of this Order and my reasons for decision and state that the matter is next before the Court on 1 May 2012 when it is anticipated that all pending applications will be dealt with finally and requesting that Mr Snapiri bring the enclosed Order and reasons for decision to the attention of his mother as soon as practicable.

5. There be liberty to apply on notice to the other party.

6. For the avoidance of doubt, this Order and the reasons for decision are to be sent to the wife at her address for service which is … F Street, Suburb B, Victoria, 3204 by prepaid post and also be emailed to her at the email address shown in Mr Conquest’s Notice of Ceasing to Act filed on 3 April 2012.

7. The costs of the husband of this day be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Snapiri & Cresswell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1535 of 2010

Ms Snapiri

Applicant

And

Mr Creswell

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me for mention in proceedings in which it is alleged by the husband that the wife has failed to comply with orders made on 9 March 2012 which required her to file documents with the court, including evidence, and to exchange information with the solicitors for the husband. 

2. These reasons explain why and how the pending enforcement proceedings will be determined on 1 May 2012 and why I have granted leave to the husband to apply on that date that the matter be determined, if necessary, without any further input by the wife.

3. The orders made on 9 March 2012 were as follows:

   (2)      By not later than 12.00 noon on 30 March 2012 the wife comply with paragraph 2(a) of the Order made on 12 January 2012.

   […]

   (5)      By not later than 12.00 noon on Friday 16 March 2012 the wife provide to the husband, through their respective solicitors, a copy of all correspondence or things passing between the wife and the State Revenue Office to date and continue to provide copies of any future documents to the husband.

4. It is apparent that paragraph 2 of the Order extended the time for compliance by the wife with an earlier order made on 12 January 2002, where she had failed to comply with that order. 

5. The property proceedings between the parties were finally resolved by orders sought by consent on 25 August 2011.  I am satisfied that it was a difficult matter to resolve, and it appears, not surprisingly, that there have been difficulties in implementation of the terms to which the parties ultimately agreed. In that respect, the wife filed an application in a case on 14 December 2011 in which she sought a raft of orders which she deposed were directed at non-compliance by the husband with various obligations he had under the final property orders. 

RECORDED:  NOT TRANSCRIBED

1. In that application, the wife sought various orders, including in paragraph 4D (sic) of the application, that the husband pay damages for breach of orders.  It was clarified on a subsequent occasion that she, in fact, sought costs incurred by her as a consequence of what she claims is the husband’s default.  The husband responded to that application by a response filed on 12 January 2012 seeking a dismissal of the application.  On 24 February 2012, he filed an amended response to the application in a case seeking that the wife pay one half of all outstanding amounts owed to the State Revenue Office by an entity called T Pty Ltd, which totalled some $33,706.03, to which would now need to be added penalties and interest since certain dates. 

2. The matter was last before me on 9 March 2012.  The husband attended court, as did his solicitor, and Mr Strum of counsel.  The wife was represented by Mr Hall of counsel, who was instructed by John Conquest Lawyers.  The wife did not attend court.  She had recently undergone a mastectomy for treatment of breast cancer.  The matter was, and is, adjourned to 1 May 2012. 

3. In relation to the husband’s amended response seeking payment by the wife of one half of the State Revenue Office debt, the wife conceded that she was liable for half, but disputed the quantum and, through Mr Hall, said that she had been in correspondence with the State Revenue Office and expected that the liability would decrease.  The wife did not wish to pay the moneys owing to the State Revenue Office and then seek a refund.  The wife was required by paragraph 5 of Order made on 9 March to provide the husband’s practitioners with a copy of the correspondence and communications between herself and the State Revenue Office.

4. Today, the matter is listed before me at the request of the husband’s practitioners who assert that the wife has failed or neglected to comply with orders 2 and 5, which are extracted above.  Mr Strum for the husband says that the husband can prosecute his amended response to an application in a case and address the issues raised by the wife in her original application filed on 14 December 2011 without any further documentation.  Mr Strum seeks that I make some interim orders now on his client’s application, but I decline to do so in the absence of the wife, and more particularly, because that matter has already been adjourned for a specific hearing on 1 May 2012. 

5. Today the wife does not attend court.  My chambers notified the parties, being the husband through Marshalls & Dent and the wife through John Conquest Lawyers by letter dated 3 April 2012 that the matter would be listed today at 9.30 am.  On the same day, the wife’s then solicitor, Mr Conquest, filed a notice of ceasing to act and specified F Street, Suburb B, in Victoria, and certain telephone numbers and an email address as the last known residential details for the wife.  I note that the part of the form at which Mr Conquest was supposed to insert when the matter was next listed before the court was left blank. 

6. This morning, and consequent upon the non-appearance of the wife at court, my court officer attempted to call the two telephone numbers set out in the notice of ceasing to act.  I accept that both numbers went to a message facility.  I then caused a call to be placed to Mr Conquest to enquire about what he had told his client in relation to when the matter was next before the court.  Mr Conquest was present, and a discussion ensued.  He was not sworn to give evidence. 

7. Mr Conquest said that on the last occasion that the matter was before the court, being 9 March 2012, he had been confident of being able to obtain instructions, but in fact, has not been able to obtain instructions since that time.  He said that he had emailed, faxed and telephoned the wife to no avail.  A few days prior to 3 April 2012, he went to her home at F Street, Suburb B, and knocked on the door, but the door was not answered.  He said that the house appeared to be untidy on the outside but recollects that was pretty much how the house had been during the property proceedings, and in particular, described in a valuation.  He observed there to be a cat in the front yard, which he cannot say is a cat belonging to the wife, but he also was aware of a dog in the backyard. 

8. Mr Conquest did not form any view that the wife no longer lives at the address.  He said that he would, over the next week or so, consider going back to the address to see if he can contact her in that sense, but at the moment, he has no instructions to act on behalf of the wife and cannot take the matter any further.

9. Mr Strum, for the husband, tendered correspondence in which his instructors wrote to the wife directly (after Mr Conquest ceased to act) notifying her of this mention before me today. 

10. Mr Strum for the husband says that the parties’ son Mr Snapiri is residing with the mother, and it would be open to the father today to contact him to ask where the mother is and whether she knows about the proceedings.  I have not stood the matter down for that purpose.  It is for litigants to come to court when their matter is listed.  In any event, all that will occur today is that the matter will remain listed for 1 May, but I wish to make clear by these reasons what is likely to happen on that date, particularly if the wife is not represented.

11. The husband through his counsel says that he can deal with all applications as currently filed without there being any further documents produced by the wife.  The wife is, in any event, out of time in which to produce any documents between now and the next hearing. 

12. I will hear the matter on 1 May.  I will have regard to the evidence which is now before the court.  The husband is clearly entitled to know any material upon which the wife would seek to rely, but she has not filed any further material. 

13. In the event that the wife fails or neglects to attend court on 1 May, I would expect that the matter would be dealt with finally and without any further input by the wife.  In the event that the wife does attend court on 1 May and seeks leave to rely on some material which is not currently before the court, I would expect that there would be consequences in relation to costs, particularly in the event that an adjournment is necessary. 

RECORDED  :  NOT TRANSCRIBED

1. I am reminded by Mr Strum that on the last occasion, I impressed upon the practitioners for the wife the importance of the wife complying with her obligations to file and exchange documents.  He referred me to the following extract from page 35 of transcript on that day, which is as follows:-

   HER HONOUR:   Now, Mr Hall, your client must comply with these timelines.  Right.  There won’t be any further indulgences.  Right.  She has had serious surgery and it’s upsetting and it should be obvious that she has my concern and sympathy, but the proceedings have to go on.  Right.  And as far as I’m aware, this is all that she’s doing at the moment, getting better and doing these proceedings.  She doesn’t work, doesn’t have the care of children, doesn’t have anything else on her plate ‑ ‑ ‑ 

   MR HALL:   Yes, your Honour.

   HER HONOUR:   ‑ ‑ ‑ so it has to happen.

   MR HALL:   I will make that clear, thank you.

2. In anticipation of the hearing on 1 May 2012, I am also prepared to direct that a copy of this order and these reasons for judgment be sent to the parties’ adult son, Mr Snapiri, at F Street, Suburb B, under cover of a letter from the practitioners for the husband, requesting that he draw the documents to the attention of his mother and in particular, that the proceedings will be back before the court on 1 May 2012 to be dealt with finally regardless of whether or not the wife attends. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 18 April 2012.

Associate: 

Date:  23 April 2012