SYKES & SYKES

[2015] FCCA 1495

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYKES & SYKES [2015] FCCA 1495

Catchwords:
FAMILY LAW – Property – application in a case – application to enforce property orders – where respondent has applied to set aside property orders under Family Law Act 1975 (Cth), s.79A – where orders remain in force – where no stay in force – where respondent previously applied to set aside property orders – res judicata.

COSTS – Security for costs – application for security for costs – insufficient evidence – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.79A, 117

Applicant: MS SYKES

Respondent: MR SYKES

File Number: SYC 950 of 2009

Judgment of: Judge Scarlett

Hearing date: 15 December 2014

Date of Last Submission: 15 December 2014

Delivered at: Sydney

Delivered on: 3 June 2015

REPRESENTATION

Solicitor for the Applicant: Ms McMahon

Solicitors for the Applicant: Turner Freeman

Respondent: In person

ORDERS

1. The Application for an Order for the provision of the sum of $15,000.00 as security for costs in respect of an Initiating Application filed on 1 July 2014 is dismissed.

2. Within seven (7) days of these Orders the Applicant and the Respondent must do all acts and things to direct and cause (omitted) to release funds held in their Trust Account to the Applicant and Respondent in accordance with Orders 6(d) and (e) made on 25 August 2010 save for the sum equivalent to the closing trade price of 1000 (omitted) shares (omitted) on the Australian Stock Exchange as at the day prior to this payment being made be deducted from the Respondent husband’s share of the Trust monies and added to the Applicant wife’s share of the Trust monies.

3. The substantive Application filed on 1 July 2014 is adjourned to 7 September 2015 for call-over at 10:00 am for the purpose of allocating a date for final hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 950 of 2009

MS SYKES

Applicant

And

MR SYKES

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case seeking enforcement of property Orders made by this Court on 25^th August 2010. The Orders have not been set aside. The Applicant also seeks an order for security for costs in the sum of $15,000.00 in respect of the Application filed by the Respondent to this Application on 1^st July 2014.

Background

1. Final Orders were made by Sexton FM[1] on 25^th August 2010 in proceedings between the parties. The Applicant Wife, who is the Respondent in the substantive proceedings, complains that Orders 6 and 9 have not been complied with by the Husband. The former matrimonial home was sold and the sale proceeds were placed in a solicitor’s trust account, where they remain.

   [1] As her Honour then was

2. The Orders which the wife says have not been complied with are 6(d) and (e), which say that upon the completion of the sale of the home the proceeds are to be distributed:

   (d)In payment to the Husband of 9% of the balance then remaining;

   (e)     In payment to the Wife of the balance.

3. The Wife also complains that the husband has not complied with Order 9, which says:

   The Husband transfer to the Wife within 14 days of Order, the whole of his interest in the (omitted) shares.

4. The difficulty arises because the husband has commenced proceedings by bringing an Application to set aside the property orders and:

   2. The $11,000 transferred from (omitted) Super account (omitted) in a super split, be returned to same account.

   3. The $108,555.30 sitting in the trust account of “(omitted)” be distributed as follows: 91% to Mr Sykes, 9% to Ms Sykes.

5. The basis for his application is that the orders should be set aside under s.79A of the Family Law Act 1975 (Cth), as the parties’ daughter now lives with him. He told the Court at the hearing that he has a very strong case to set the Orders aside.

6. The Wife disagrees, and seeks in her Response to the substantive Application an order for summary dismissal of the Husband’s application. In the Application in a Case she seeks an order for security for costs. She points out in her affidavit that in previous proceedings between the parties in the Family Court Rees J found that neither party sought an order under s.79A of the Act. Further, a reading of the affidavit material in support of their applications did not reveal any ground on which s.79A could have been invoked. The parties’ financial applications were both dismissed.

7. The Wife seeks an order that unless the Husband provides the sum of $15,000.00 by way of security for costs his substantive application should be dismissed.

Conclusions

1. The evidence is insufficient to justify the making of an order for security for costs, especially one with such draconian consequences.

2. It will not avail the Husband to rely on his application to set aside the property orders as a defence to the Wife’s claim. He has already made one application to vary the Orders, which has been dismissed, making it likely that the Wife will make a claim of res judicata when the issue is argued before the Court.

3. The Orders of 25^th August 2010 remain in force. They have not been stayed. I propose to grant the application for Order 2 in the Application in a Case.

4. The substantive Application will be placed in a call-over for the allocation of a final hearing date later in the year.  

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  3 June 2015