Yeates and Thomas

[2008] FamCA 1160

FAMILY COURT OF AUSTRALIA

YEATES & TANK [2008] FamCA 1160

FAMILY LAW – ENFORCEMENT OF ORDERS – Costs orders – Orders made for payment

APPLICANT: Mr Yeates

RESPONDENT: Ms Tank

FILE NUMBER: BRC 2149 of 2007

DATE DELIVERED: 7 October 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 7 October 2008

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The Respondent, MS TANK, pay to the Applicant, MR YEATES, the sum of $12,323.90.

2. In part satisfaction of the terms of paragraph 1 hereof, the Respondent, MS TANK, forthwith take all steps necessary to have all remaining funds held by her in her own name, or held by her jointly with her daughter, with the Bendigo Bank paid to the Applicant, MR YEATES.

3. Any balance owing after such payment referred to in paragraph 2 hereof be paid within six (6) months of today’s date.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2149 of 2007

MR YEATES

Applicant

And

MS TANK

Respondent

REASONS FOR JUDGMENT

ex tempore

1. By application filed on 13 December 2007, the applicant, Mr Yeates, sought orders designed to enforce payment of a costs order against the respondent, Ms Tank, which costs order was made on 15 July 2004, which order was, in turn, the subject of a costs assessment notice in the sum of $12,323.90 issued on 8 November 2007.

2. Since the filing of that application, other proceedings between the parties in relation to children's matters have also been on foot.  The former application has been the subject of multiple mentions and directions before myself and before Registrars designed and/or necessitated so as to provide the parties several opportunities to properly prepare and present their respective cases in relation to this outstanding financial matter.  I refer, in particular, to my orders of 18 March 2008, 21 April 2008 and 30 June 2008. 

3. Despite my efforts and those of the Registrars on other occasions, much of the case has been presented in piecemeal, inadequate and incomplete ways which have served to make the Court's task all the more difficult.

4. A hearing was conducted before me on 30 June 2008, where each party was self-represented, and it was apparent that the inadequacies in the evidence remained.  In the circumstances, I adjourned the matter part-heard to today's date and gave the parties yet a further opportunity to place evidence and submissions before me.

5. As appears from notations sub-par (a) to sub-par (g) of the orders made on 30 June 2008, it was made clear to the parties, both in those notations and during the course of the proceedings, that no further indulgences or extensions would be provided.  In accordance with those orders, the respondent wife filed a further affidavit on 29 July 2008, and the applicant father filed a further affidavit and written submissions on 28 August 2008.

6. I understand that the wife attempted to file some response to the husband's material after the expiration of the time limits imposed by the orders of 30 June 2008, and quite properly the Registry refused to accept such further documentation which has not been sighted by me.

7. The totality of the evidence available to me on the issue is as appears in the applicant father's application and affidavit filed on 13 December 2008, his affidavit filed on 28 August 2008, and a document purporting to be a financial statement filed by the wife on 20 June 2008, and her further affidavit filed on 29 July, together with the oral evidence of the parties and the four exhibits tendered at the hearing on 30 June 2008.

8. Through her material and oral submissions made to the Court, the respondent mother sought to defend the enforcement application on two grounds.  She acknowledged the making of the costs order and she did not seek to dispute the assessment of those costs in the sum of $12,323.90. 

9. The respondent argues that the applicant's application should be dismissed both on legal and discretionary grounds.  Firstly, she contends that the orders sought are contrary to law, in that she was a declared bankrupt at the time the orders and assessments were made, and that she was subsequently discharged as a bankrupt, and as a consequence she contends that all liabilities which predated her discharge were extinguished upon discharge.  It needs to be recorded that the respondent was declared bankrupt on 27 May 2004, and discharged from that bankruptcy on 26 May 2007.

10. Section 153 of the Bankruptcy Act provides that debts provable in bankruptcy are, in fact, released upon a discharge of the bankrupt.  Clearly, the Court orders and assessments predated the respondent's discharge, and the only issue is whether the debts arising from the costs orders were provable under the provisions of the Bankruptcy legislation.  In my view, the question has been clearly answered by the High Court in Foots v Southern Cross Mine Management Pty Ltd and Ors [2007] HCA 56.

11. The only debts provable under a bankruptcy order are those in existence at the time of the said order.  The respondent wife consented to the costs order after bankruptcy, and the assessment was made after bankruptcy.  The High Court considered and rejected the proposition that there could be any nexus in terms of timing between a final costs order and the fact that proceedings giving rise to the costs order predated the bankruptcy order.

12. In this case, there was no existing debt or obligation to pay the debt in the form of a costs order until the Court determined such matters, which it did with the consent of the parties on 15 July 2004.

13. I conclude that the order for costs and other obligations on the part of the respondent to pay such costs did not represent a provable debt under the Bankruptcy provisions, and was therefore not an obligation discharged by operation of law upon the respondent's discharge from bankruptcy.

14. The second argument advanced by the respondent relates to a proposition that the applicant had defaulted under his financial obligations to her created by orders for property settlement which obliged him to indemnify the respondent against debts incurred by the applicant prior to the property consent orders, those debts being liabilities to Centrelink.

15. As I have observed earlier, the respondent has been given multiple opportunities and has been subjected to directions to enable her to advance that case.  At the end of a rather tortured exercise, in my view, she has failed to meet the procedural or evidentiary requirements sufficient to enable me to take account of such matters to defeat the applicant's claims.  She has, in fact, never filed a response or cross-application pleading such matters.  She has not sought to file and read the order creating any such obligations for the applicant.  Her affidavit material has remained inconclusive and incomplete, even in the face of persistent directions from the Bench about the need for clearer evidence.

16. In addition to the confusing state of her documentary evidence, it emerged during the course of the hearing on 30 June 2008 that much of the information being provided by the respondent about her circumstances was, at best, unreliable and uncertain, and her presentation and testimony was noted by me to be at times vague and at times improbable, and often avoidant.  I found it difficult to have confidence about much of the information she provided.

17. Her documentary evidence has not drawn the necessary link between any unmet obligation and any order requiring the applicant to indemnify the respondent.  If the respondent is able to establish an existing obligation created by an order by the Court requiring the applicant to discharge a debt or indemnify the respondent against such payments, she has and continues to have available to her enforceable remedies under those orders to secure the applicant's compliance and proper recompense.

18. In the meantime, given the totally unsatisfactory state of the evidence in this matter, I am simply unable to take account of such matters in a way which would enable or require me to exercise any residual discretion I might have to refuse to enforce what is clearly a remaining and enforceable obligation created by the costs orders and the assessments of July and November of 2004.

19. On the evidence before me, the respondent currently has at least $10,000 in the Bendigo Bank which has been the subject of restraining orders pending the final determination of this matter.  It is clear on all of the evidence that such funds are the property of the respondent, notwithstanding that she has earmarked such funds for her daughter's education and has recently transferred such funds in a way which requires the joint signature of the daughter to secure the release of such funds.

20. The applicant sought payment by lump sum or, in the alternative, the issue of some third party notice to employers, presumably to have her wages garnisheed.  As I have indicated earlier in another context, the evidence in relation to the respondent's current circumstances is unclear, and there is insufficient evidence and insufficient particularity in the applicant's application to enable me to make any orders against any employers.

21. The best I can do, in the circumstances, is to make an order for the payment of the funds presently held by the respondent in the Bendigo Bank to the applicant, with the balance to be paid within six months.

22. In the circumstances, I therefore make the following orders.

    ORDERS DELIVERED

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  13 January 2009