Worth and Worth (No 2)

[2016] FamCA 173

FAMILY COURT OF AUSTRALIA

WORTH & WORTH (NO 2) [2016] FamCA 173

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the mother makes an oral application for the review of a Registrar’s decision to list a case application filed by the mother to a future date – Where the mother seeks to have the Registrar’s decision overturned and for the case application to be listed for determination at this hearing – Application granted.

FAMILY LAW – ORDERS – Variation – Application to vary an order made by a Registrar by consent – Application granted.  

Family Law Act 1975 (Cth)

APPLICANT: Ms Worth

RESPONDENT: Mr Worth

FILE NUMBER: BRC 1771 of 2014

DATE DELIVERED: 12 January 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hanlon

SOLICITOR FOR THE APPLICANT: Rosen Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Laws

David R.L. Laws Solicitor

Orders

1. The Registrar’s decision to list the mother’s Application in a Case filed 15 December 2015 for hearing on 14 March 2016 is overturned, and the listing before Justice Hogan of that Application in a Case on 14 March 2016 is vacated, the Application in a Case filed 15 December 2015 being heard today by Justice Forrest.

1. Order 6 made 15 September 2015 by Principal Registrar Filippello with the consent of the parties be varied by deleting the words “The Applicant and the Respondent do all things and sign all documents necessary to draw down from the mortgage offset account” and by the insertion in lieu thereof of the following words:

   That JC Lawyers are authorised and directed to pay from their Trust Account so as to pay to the Trust Account of ROSEN LAWYERS the sum of $50,000; and to pay to a Trust Account nominated by DAVID R.L. LAWS SOLICITORS the sum of $50,000; with such funds to be held by those respective solicitors on trust for their respective clients, and to be applied by them in payment of their respective client’s legal costs and outlays.

   with the categorisation of such payments to be a matter for the Trial Judge in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Worth & Worth (No 2) 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 BRISBANE

FILE NUMBER: BRC 1771 of 2014

Ms Worth

Applicant

And

Mr Worth

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, at the outset of the hearing of other applications, counsel who appears today for the mother made an application for the Court to hear an Application in a Case that was filed on behalf of the mother on 15 December 2015. On the date of filing, the Application in a Case was given a return date in a judicial duty list before my judicial colleague, her Honour Justice Hogan, at 10.00 am on Monday, 14 March 2016.  In essence, as Mr Hanlon for the mother agrees, his application today is an oral application to review the decision of the Registrar who listed the matter for hearing on 14 March 2016 so that a fresh decision listing it to be heard today could be made.

2. I am informed by Mr Hanlon that on the day the said Application in a Case was filed, namely 15 December 2015, the Registrar was asked to list it for hearing and determination by me today and the decision to refuse the request and list it instead for hearing on 14 March 2016 was taken. Clearly, Mr Hanlon’s application today is truly an oral application to review the Registrar’s decision. Such applications, of course, are hearings de novo. However, the only material that is put before the Court in respect of it is the Application in a Case itself and the supporting affidavit of Mr Rosen that was filed along with the Application in a Case on 15 December 2015.

3. Handed to the Court and admitted into evidence and marked as “Exhibit 1” in this oral application is a copy of a letter from Mr Hanlon’s instructing solicitors, Rosen Lawyers, to the father’s solicitor, Mr David Laws, who appears for the father today, in which was enclosed the Application in a Case and the affidavit of Mr Rosen, that I have referred to above, filed on 15 December 2015. At the bottom of the letter is said:

   We note the return date for the Application is 14^th March 2016 however we will be seeking to have his Honour Justice Forrest deal with the matter on the 12^th January 2016. 

4. The hearing of the oral application for a review of the Registrar’s decision and the hearing today of the Application in a Case filed 15 December 2015 currently listed for 14 March 2016, is opposed by the solicitor for the father.  The opposition in itself, on the face of the material before me, raises some interesting questions.  I say that in this context. The Application in a Case filed 15 December 2015 is an application to vary an order made by Principal Registrar Filippello on 15 September 2015 with the consent of both the father and the mother.  That order reads:

   The Applicant and the Respondent do all things and sign all documents necessary to draw down from the mortgage offset account so as to pay to the Trust Account of ROSEN LAWYERS the sum of $50,000; and to pay to a Trust Account nominated by DAVID R.L. LAWS SOLICITORS the sum of $50,000; with such funds to be held on trust for the respective parties, and to be applied to the respective parties legal costs and outlays.

5. The affidavit of Mr Rosen deposes to a few short facts.  Relevantly, and I do not understand this evidence to be in any way in dispute, Mr Rosen says that prior to the order that I have just quoted being able to be implemented, the parties entered into a contract for sale of their former matrimonial home situated at B Street, Suburb C. Although it does not refer to a particular property in paragraph 6 of the orders of Principal Registrar Filippello, that is, the property over which the mortgage was registered that was referred to in that paragraph 6. 

6. Mr Rosen says that the parties appointed a firm of solicitors, namely JC Lawyers, to act on their behalf in respect of the sale. It seems, although it is not deposed to by Mr Rosen, settlement of the sale of the property occurred sometime post 15 September 2015 and prior to 20 November 2015 as Mr Rosen then prepared a letter that he describes as a joint letter going to JC Lawyers for signature of both him and Mr Laws authorising them to pay out the $50,000 to each of the sets of solicitors reflected by the agreement that was given effect to in the consent order at paragraph 6 made on 15 September 2015. 

7. It seems that a dispute then occurred between Mr Laws and Mr Rosen about whether or not JC Lawyers ought to be authorised to pay out $50,000 to each of their clients and, by the nature of the Application in a Case that I am asked to hear today, it seems it has not happened. 

8. Considering the fact that paragraph 6, that is sought to be varied by the Application in a Case, clearly evinces a common intention by the parties at the time Principal Registrar Filippello made the order for them each to get $50,000 out of the equity in their former matrimonial home to use towards funding their respective lawyers, I asked the question of the father’s solicitor today as to why the father now opposes not only the hearing of this application today, but more importantly, the actual application for a variation of the order so that each of the parties can get that $50,000 to use to pay their solicitors.  I cannot precisely quote the solicitor’s response, but I do not consider I am being unfair, or doing an injustice to the father’s solicitor, to simply describe his answer to me as attributing that opposition to a desire for the mother to no longer be able to fund solicitors to represent her in these proceedings.  That is an answer, which with all due respect to the solicitor who made it, I can only describe as extraordinary. 

9. Mr Laws, when asked, did tell me that he wanted to leave the application until March and did say that he wanted to put on material on behalf of his client to answer it.  However, he has not told me the nature of that material and what it would go to, if anything, other than that which I have described, which is the father’s desire for the mother to no longer be able to fund her legal representation because of what was described by Mr Laws as an elevation of conflict between the parties.  In fairness again, I also must mention that when answering my questions, Mr Laws did assert that the mother had taken much from the property pool already, suggesting some sort of concern or fear on the part of the father that the receipt of $50,000, for the purpose of funding the mother’s solicitors, would adversely impact upon the capacity to effect a just and equitable property adjustment with respect to the property of the parties, or either of them, having regard to what property would be left to divide up.

10. Relevantly thought, that submission had prompted a further question from me as to whether concern had emerged before or after the consent to the order made 15 September 2015. Curiously, I was told that it had emerged before that order was consented to. 

11. In the circumstances, I am mindful of my duty to ensure that litigation in this court is conducted in an efficient manner, particularly in an efficient matter in respect to the time that the Court has available to hear the many, many matters that it is required to determine for members of the Australian public, but also in terms of the efficiency of the time of the legal representatives who appear for the parties before the Court, and, very importantly, also in respect of the costs incurred by each of the parties that litigate matters in this Court.  Mindful of these matters, I am of the view that it is appropriate to hear the Application in a Case today and to effectively overturn the Registrar’s decision to list that application for hearing  on 14 March 2016. Further, I am of the view that it is appropriate and indeed just and equitable in the circumstances to order in terms of the order that is sought in the Application in a Case that I hear today, namely the variation of paragraph 6 of the order of Principal Registrar Filippello of 15 September 2015 in terms sought by the mother. 

12. I am most particularly moved to consider it appropriate having heard that the reason for opposing such an order is to try to starve the mother of funds so that she cannot continue to have legal representation of her choice, be it Mr Rosen or some other lawyer who she may wish to retain.  Parties are entitled to have legal representation in this Court. They are entitled in the normal course of events to have the legal representation of their choice and they are entitled to use their resources to fund those legal representatives if they consider it necessary and appropriate. 

13. Accordingly, I order as set out at the commencement of these reasons.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 January 2016.

Associate:

Date:  22 January 2016