STEVENS & STEVENS

[2013] FamCA 90

FAMILY COURT OF AUSTRALIA

STEVENS & STEVENS [2013] FamCA 90

FAMILY LAW – ORDERS – Enforcement of orders – costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Stevens

RESPONDENT: Ms Stevens

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8717 of 2011

DATE DELIVERED: 24 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gillard

SOLICITOR FOR THE APPLICANT: Lander & Rogers

THE RESPONDENT: In person

Orders

1. That by 4.00pm on 31 January 2013, the wife execute all documents prepared by B Accountants to give effect to a resignation by the wife of all directorships and/or positions held by her in H Pty Ltd.

2. That by 4.00pm on 31 January 2013, the wife repay into the Stevens Superannuation Fund, the sum of $24,927 being monies withdrawn by the wife.

3. That subject to the wife’s compliance with orders 1 and 2 above, the application in a case filed 12 November 2012 and the response thereto filed by the wife on 17 January 2013 are dismissed. However, in the event that the wife does not comply with those orders within the timeframes set out, the husband have permission to relist the application on short notice to seek an order under s 106A of the Family Law Act 1975 (Cth).

4. That the reasons this day be transcribed.

5. That the wife pay the husband’s costs of this application by agreement and in default of agreement as assessed by a registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stevens & Stevens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8717 of 2011

Mr Stevens

Applicant

And

Ms Stevens

Respondent

REASONS FOR JUDGMENT

1. I am dealing with an application in a case filed on 12 November 2012 by the husband, to which the wife has responded by a response filed 17 January 2013. There are three issues only that I need to deal with. One relates to the question of ordering the wife to sign documents which effectively act as a resignation by her of all positions within a corporate entity known as H Proprietary Limited. The second relates to questions of her returning money, from whatever source, into a superannuation fund, she having taken those funds subsequent to the orders being made. And the third is because the husband has no confidence that the wife will comply, the powers in s 106A of the Family Law Act 1975 (Cth) (“the Act”) should be exercised and a registrar sign the documents in the name of the wife.

2. In respect of the first point, the orders made by the Court were, in fact, consent orders.  They were made on 3 August 2012 at a time when both parties were represented by lawyers, and indeed they were made by me and as is my usual practice, I was satisfied that they were just and equitable in the circumstances that I was provided.  The order that the first of the three issues applies to is paragraph 6 and it says:

   The wife resign all directorships and/or positions and/or offices in [H] Proprietary Limited. 

   That order goes on to refer to what needs to be done in the event that a resolution of the company needs to be made, but otherwise the order seems very clear.  There was no time limit, no date mentioned in the order and as such, the order must be complied with forthwith.  The evidence is that the wife was sent documents through her lawyers and she has not signed them.  Her position was, until discussions occurred today, that she was not satisfied about the whole resolution of the proceedings because she did not have access to documents and she did not want to sign those documents until those issues were sorted out.  She is now contemplating an application to set aside or vary those orders and I have indicated to her that she needs to get some advice about that because it is a very serious application to make.  On any view of the evidence however, there can be no justification for the documents not being signed, having regard to the wording of paragraph 6 of the orders.

3. The second order relates to the money taken from the superannuation account.  The wife’s position was that it was taken because she was doing it as a part distribution across to her superannuation fund.  It seems common ground that no proper documents were signed to do it and therefore there would be a problem if the Taxation Office examined the books.  The wife concedes that she probably should not have done that and has agreed that she will put the money back today.

4. The third point relates to the provisions of s 106A of the Act. Section 106A requires the Court to be satisfied that there is a default or likely to be a default before that power is or should be exercised. In this case the wife has told me that she will comply with the orders that I now make but in the event that she does not, she acknowledges that the husband can immediately bring a further application and the orders would almost certainly then follow. That would be a most unpleasant exercise because she would then be facing a costs order.

ORDERS DELIVERED

1. I now have an application for costs by the husband who has incurred, he says, $3000 by being here today. He has been successful in respect of most of what he has sought. Section 117 of the Act provides that in proceedings in this Court each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court is contemplating a departure from that principle, it has to take into account the matters in s 117(2A). This is an enforcement application. The wife has conceded that she did not get advice about what she was doing and she was doing the right thing. Sadly, that means that if I was to excuse her the husband has come to Court at his expense, to get what he was entitled to in the first place. I find a justifiable circumstance because the husband was simply doing what he was entitled to do under the order. Had the wife had some advice about it, this case probably would not be here. That is a reason to find a justifiable circumstance to depart from the principle that each party pays their own costs.

2. When I look at the financial circumstances, it seems that there is a disparity between the parties’ incomes but there is also something of a vague unknown about just what the capital position is.  On any view however, the wife concedes that she has got some superannuation coming to her and over $200,000.  It would be hard for me to find, in these circumstances, that she is impecunious.  There are no legal aid considerations here and there is the non-compliance with a Court order which is one of the considerations. 

3. This is a case where I should make an order for costs and I propose to do so. 

ORDERS DELIVERED

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 January 2013.

Associate: 

Date:  5 February 2013