Spence and Spence (No. 2)

[2008] FamCA 609

FAMILY COURT OF AUSTRALIA

SPENCE & SPENCE (NO. 2) [2008] FamCA 609

FAMILY LAW – PROPERTY – Orders for husband to collect chattels from the matrimonial home

APPLICANT: Mr Spence

RESPONDENT: Ms Spence

FILE NUMBER: ADF 3013 of 1999

DATE DELIVERED: 31 July 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 31 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That in order to ensure that paragraph 9 of the order made on 26 March 2008 is carried out:

   (a)The husband attend at the former matrimonial home at R at 9:00am on 12 August 2008 together with his brother;

   (b)between 9:00am and 5:00pm the husband collect and remove as many of the items in Annexures A and B to the said order as he is physically able to;

   (c)The wife be at liberty to have an adult person of her choosing attend at the former matrimonial home during the time that the husband and his brother are there;

   (d)once the husband has collected and removed all of the items that he can he prepare a written list of the remaining items and on that document set out his proposal for removing the remaining items with such document to be left at the former matrimonial home for the wife.

2. That in the event that there are further items to be removed and in the event that the parties are unable to agree how that is to occur paragraph 7 of the Application in a Case filed by the husband on 1 July 2008 be listed before the Honourable Justice Strickland at 9:30am on 28 August 2008.

3. That the parties have leave to attend the adjourned hearing by way of telephone.

4. That paragraphs 1 to 6 of the Application in a Case filed by the husband on 1 July 2008 be dismissed and removed from the active pending cases list.

5. That the Response filed by the wife on 31 July 2008 be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Spence & Spence is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3013 of 1999

MR SPENCE

Applicant

And

MS SPENCE

Respondent

EX TEMPORE REASONS

1. In this matter I have before me an Application in a Case filed by the husband on 1 July 2008.  The wife has attended in person today and she has tendered a Response to that application, together with a supporting affidavit.

2. This is a matter that is extremely frustrating for this Court.  It is a matter that has continued for some time.  I thought that by delivering a judgment and making final orders earlier this year that that would conclude this matter for these parties.  Unfortunately, that confidence has been misplaced. 

3. Frankly I should have realised that given the issues that these parties have been raising over the years, inevitably there would be something else that would arise which would allow the parties to come back to this Court.  I am not going to repeat the comments that I made in my reasons for judgment earlier this year about why this case seems to have continued for so long, but this just highlights those comments.

4. I have spent now well over an hour off and on attempting to deal with the issues in dispute.  As far as I am concerned it has been a total and absolute waste of this Court's valuable time.  I made the comment, which seems to have fallen on deaf ears, that I cannot imagine why the parties want to be here, why they want to be in dispute, why they want to file documents, but it seems that that is the inevitable consequence of interaction between these two parties.

5. I have carefully taken the parties through the application filed by the husband and the response tendered by the wife.  At the end of the day there is only one matter that I am prepared to deal with.  In terms of paragraphs 1, 2, 4 and 5 of the husband’s application, what he is raising are matters of enforcement of the orders that I have made previously.  As I have explained to him, there are enforcement procedures available in this Court, but one of them is not to simply file an Application in a Case raising concerns about non-compliance with the order.  If the husband wishes to pursue enforcement of the order he will need to do it in the appropriate manner.  Thus I propose to dismiss paragraphs 1, 2, 4 and 5 of his application.

6. In relation to paragraph 3, the wife has agreed that the husband can make the payments of maintenance by electronic transfer.  In her response she has provided the relevant details to enable him to do that.  However, I do not propose to make any order about that.  My order stands, that the husband is obliged to pay $100 per week by way of maintenance.  He is now able to pay it by way of electronic transfer because he has the information to allow him to do that.  The wife seems comfortable with that.  Thus, I will dismiss paragraph 3 of the husband’s application.

7. In relation to paragraphs 6 and 7, they relate to an order that I made providing for the husband to attend at the former matrimonial home and collect a number of items situated on that property.  That is the matter that I am prepared and able to deal with today on the basis of treating the husband’s application as an application pursuant to the liberty to apply which I gave in relation to consequential orders as part of my order earlier this year.

8. The relevant order is paragraph 9 of my order of 26 March 2008, which provided, in summary, that the husband attend at the former matrimonial home at a time to be nominated by the wife within 28 days, in the presence of an adult person nominated by the wife, and, at the option of the husband, an adult person nominated by the husband.  At that time the wife was to make available for the husband to collect and remove the items set out in Annexures A and B to the order.

9. There is a dispute between the parties as to whether the wife has complied with that order.  She says she has, the husband says she has not.  I do not intend to get to the bottom of that and I do not need to.  The fact of the matter is, my order, the effect of which is for the husband to have the items in Annexures A and B, simply has to be carried out, and I propose to make consequential orders to ensure that it is.

10. In paragraph 6 of the husband’s application he seeks an order that an officer of the law be present when he collects the items.  Coincidentally, the wife in effect seeks the same order in her response.  However, I have indicated to both parties that I am not prepared to make such an order.  I am not prepared to put the South Australia Police to the time, trouble and effort of attending at a private home when there is no basis whatsoever, or any need whatsoever, for that to occur.

11. In paragraph 7 the husband in effect seeks an order that he have more time than one day to remove the items.  He says there are more items there than can be removed in one day.  The wife disputes that.  Again, I am not going to get to the bottom of that and I do not propose to waste this Court's time in attempting to do so.

12. I propose to set up a day when the husband can attend.  If he cannot remove all the items then, he is to make a list of what is left, and an assessment of how much more time is required and what would be involved.

13. I indicated to both parties that I would try and set up an order which allowed for that process to occur without having to come back to court.  On reflection, that is pie in the sky.  Therefore, extremely reluctantly, I am going to have to have this matter back before me in the event that the husband cannot remove all the items on that one day.

14. Before I turn to that order, the wife in her response has not only responded to the orders sought by the husband.  As far as I am concerned, in terms of those matters which I am not prepared to deal with in the husband’s application I of course do not need to deal with anything in the wife’s response.  The wife has raised, though, separate matters.  She has sought orders going over old ground.  She has sought orders resurrecting old issues.  She is seeking orders attempting to go behind the final orders I made in March this year.  As far as I am concerned her response in that regard is totally ill-founded and again is another waste of this Court's valuable time. 

15. I propose to dismiss entirely the response filed by the wife.  However, as I say, and to her credit, she has agreed with the husband's application in relation to him being able to make electronic transfers of the maintenance payments. 

16. The wife also raises the issue of the collection of the items but I will deal with that in the way that I have set out already.  Equally, as I am treating that as the husband taking advantage of the liberty to apply, I treat that as the wife doing the same.  That is the only issue that I am prepared to deal with in either party's application or response.

I certify that the preceding 16 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 31 July 2008.

Associate