Woolly & Woolly

[2022] FedCFamC2F 620

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Woolly & Woolly [2022] FedCFamC2F 620

File number(s):	MLC 12173 of 2018
Judgment of:	JUDGE HARLAND
Date of judgment:	3 May 2022
Catchwords:	FAMILY LAW – property proceedings – wife’s application in a proceeding – enforcement of previous orders – where husband provided undertaking to comply with orders –  husband’s non-compliance
Division:	Division 2 Family Law
Number of paragraphs:	14
Date of last submission/s:	3 May 2022
Date of hearing:	3 May 2022
Counsel for the Applicant:	Mr McIvor
Solicitor for the Applicant:	Sayer Jones
Counsel for the Respondent:	In person

ORDERS

MLC 12173 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS WOOLLY

Applicant

AND:

MR WOOLLY

Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	3 MAY 2022

THE COURT ORDERS THAT:

1.Within 48 hours, the Husband do all acts and things and sign all documents as required to deposit the sum of $200,000 into the Wife’s solicitors’ trust account to be held on behalf of the parties pending further order on the written agreement of the parties.

2.In the event the Husband fails to comply with the above Order, the Wife have liberty to apply on 7 days’ notice.

3.The subpoena objection filed by the Husband on 28 February 2022 is dismissed.

4.Leave is granted to the parties and their legal representatives to copy and inspect documents produced on subpoena by the Commonwealth Bank of Australia.

5.The costs of the Wife of and incidental to the Interim Defended Hearing on 3 May 2022 be reserved.

6.The matter remains listed on 9 February 2023 for Final Hearing before Judge Harland.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE HARLAND:

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is the wife’s application in a proceeding which seeks, in effect, to enforce previous orders made in this matter with respect to the husband’s undertaking to put $200,000 from an amount he received as part of a WorkCover claim into an interest earning account, and to not deal with those funds pending further order or written agreement.

3. The husband appears today unrepresented and has been unrepresented throughout the proceedings. He has briefly spoken to a Duty Lawyer. The husband sought an adjournment of today’s application saying that he had material ready to be filed, but it needed to be sworn. I declined to grant an adjournment in circumstances where the original orders were made in October 2021, some six months ago. The Application in a Proceeding was filed on 28 March 2022, it is now 3 May 2022. The husband has not filed any material in response and has not provided any documents with respect to the $200,000. I have concerns that granting an adjournment may in fact further prejudice the wife’s position.

4. It also needs to be noted that in the context of this Application, prior to filing the Application in a Proceeding the wife issued a subpoena to the Commonwealth Bank of Australia for the husband’s bank statements from 1 January 2021 to date. The husband filed an objection to that subpoena, though it is difficult to follow his reasons for doing so as he does not object to producing documents between August and October 2021, but otherwise objects to statements being produced. Both parties in proceedings of this nature have ongoing positive obligations to make full and frank disclosure. 

5. I note that the husband in this matter raises an issue with respect to the wife’s application being out of time. It is important to refer to the chronology of this matter to put that in context. The wife brought parenting proceedings on 4 April 2020. The husband did not participate in those proceedings and in December 2020, final parenting orders were made on an undefended basis. 

6. The wife filed her initiating application with respect to property on 21 September 2021 and the matter came before his Honour Alstergren CJ initially on 19 October 2021. There was no appearance by the husband. Various orders were made with respect to the service and filing of documents. Notations were made on that date that the husband’s mobile had been called, but there had been no response. At that stage the Court was not satisfied as to whether or not he had been served with those documents. The matter came back before his Honour on 26 October 2021. On that occasion the husband appeared in person and Mr McIvor of counsel appeared for the Wife. His Honour made several orders including an order for the husband to pay costs of $321 which the husband has recently complied with. Further, that he pay the sum of $50,000 into the trust account of the wife’s solicitors in full and final settlement of lump sum child support of which the husband has complied. Orders 5 and 6 are clear. They direct for the husband to file an affidavit which includes information that the husband has undertaken to preserve the sum of $200,000 out of his Workcover settlement, and that he was required to provide details as to where he has secured those funds. Further, he was restrained from dealing with those funds. Notation A is also significant as it notes that the husband provided an oral undertaking to the Court that he would preserve that fund. These are serious obligations. 

7. Throughout the proceedings this morning the husband sought to deflect from the issue that is before the Court today, which is his non-compliance with those orders and various other complaints that he wishes to make. I accept that the husband is self-represented. As I explained earlier this morning, the listing today was purely with respect to the wife’s Application in a Proceeding. Many of the issues that the husband seeks to raise are issues that are quite properly raised at trial. As I also indicated earlier, there is a distinction between compliance with the Interim Orders that were made by his Honour which clearly were designed to protect the processes of the Court pending determination of this matter, and whether or not at trial when the evidence is tested there should be any further property adjustment between the parties. It is clear that that is an issue in dispute to be determined at trial.

8. In his response filed in November 2021 the husband did not raise an objection to jurisdiction, but sought to make a payment to the wife of $40,000 in addition to the $50,000 lump sum child support payment. The husband also filed an affidavit in November which addressed issues of financial and non-financial contributions, but did not address the issue with respect to the sum of $200,000. It is quite clear that the parties had very different versions of events with respect to their relationship and their respective contributions, both financial and non-financial, as well as contributions by other family members. These are matters that need to be tested at trial. 

9. The matter then went before a Registrar for a Conciliation Conference on 22 November 2021, which did not succeed in resolving the matter. It then went before a Judicial Registrar on 8 December 2021, who noted that the parties had come to an in-principle agreement. However, when the matter was next before her on 15 December 2021, she noted that the agreement had fallen apart and listed the matter for trial before me for two days commencing 9 February 2023.

10. From indications that the husband gave after speaking to the Duty Lawyer today, it appears that the husband may, in fact, no longer have preserved the $200,000 as ordered. I urged the husband to seek independent legal advice after today with respect to his obligations under the orders of 26 October 2021 and the proceedings generally. The indications the husband made raises real concerns with respect to breaches of the orders and whether or not the husband has taken actions to defeat the wife’s claims which she is entitled to pursue and have determined on its merits. As I indicated, it may well be that she is not successful, but that does not detract from the fact that there are orders in place that put very clear obligations on the husband that he is well aware of.

11. With respect to the objection to the subpoena the wife issued, I disallow the objection. The documents are clearly relevant to the issues in dispute between the parties, particularly the circumstances where the husband has not been able to produce financial documents today and now gives an indication that he has spent some of that fund on what he said is necessary expenses. It is appropriate that leave be granted to the parties to inspect those documents.

12. The husband expressed concerns about the documents being provided to other non-parties. I want to make it clear that neither party is permitted to provide Court documents to other parties not involved in the proceedings apart from their legal advisers and financial advisers as is the usual course. I grant leave for the parties to inspect and copy the financial documents produced by the Commonwealth Bank of Australia. With respect to the orders sought in the Application in a Proceeding, Order 1 seeks that the husband deposit $200,000 into the wife’s solicitor’s trust account pending further order, and that this be done within 48 hours. Further orders are sought requiring the husband to comply with Orders 4 and 5 or the orders made by the Registrar on 22 November 2021 noting that the husband has now complied with Order 2 or the Orders made on 26 October 2021.

13. Compliance with orders is not optional. The orders that were made on 26 October 2021 are serious. This application is, in essence, an enforcement of orders that have already been made by the Court, orders that were not appealed in all the months since they have been made. I am satisfied that if the orders are not made as sought by the wife in the application, her claim may well be defeated. I will grant the orders with respect to the Application in Proceeding Orders 1, 3, and 4, order 4 being liberty to have the matter re-listed on seven days’ notice if the Husband does not comply with these orders.

14. At this stage I will reserve the wife’s costs in the Application in a Proceeding as I do not have time to hear that application and I do not know what the costs are at this stage. The matter may be further listed with respect to this application as well as any other issues. Otherwise, the matter remains listed for trial. If the husband seeks to raise issues with respect to the wife’s compliance with orders, with obligations of disclosure and other issues, then he should being an Application in a Proceeding with the supporting evidence.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.

Associate:

Dated:       3 May 2022