Starting strong: commencing the correct proceedings
Commencing Court proceedings on behalf of a client is a significant step in a Family Law matter fraught with risk for practitioners and clients alike. In this series we will look at 4 crucial insights that will help you manage your case with confidence, ensuring better outcomes for your client and your practice.
Typically we commence proceedings with an Initiating Application however this is not the only way for a matter to enter or return to Court after final Orders have been made.
One of the more common ways for proceedings to be returned to Court is as a result of an Application due to contravention or seeking enforcement. These more complex applications need specific attention to ensure that you have complied with the requirements of the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The recent decision of Gannon & Negus [2024] FedCFamC2F 911 has highlighted the importance of commencing the correct proceedings once again.
This matter related to property Orders for, among other things, the transfer of an investment property owned by the Husband to the Wife.
The Orders did not address who would receive the rental income pending the transfer. The Husband, as the sole registered proprietor, had been receiving the rental income. The Wife held the view that the rental income received from the date of the Orders to the date of the transfer should be paid to her. The Husband did not agree.
The Wife then refused to settle the transfer until such time as it was agreed that the husband would pay her the rental income from the date of the Orders to the date of the transfer.
The Wife filed a Contravention Application.
Why was this not the correct application?
Contravention Applications are brought before the Court in circumstances where an Applicant is seeking a sanction for the failure of the Respondent to comply with an Order or other obligation.
This means that the Wife had to demonstrate, in the first instance that there was an Order which the Husband had not complied with. In these circumstances, the final Property Orders were silent on the issue of rent and there was nothing for the Court to enforce the payment to the Wife.
Could the Wife have filed for Enforcement proceedings?
In circumstances where the Orders were silent on the payment of rent an Application for Enforcement may also have failed as an Enforcement Application requires an Order to be available for the Court to enforce.
The Court has the power under Part XIII of the Family Law Act to enforce “such terms and conditions as the Court considers appropriate” [s.105(3)], as such there is the possibility that the Court may have considered the wider circumstances of the agreement and made Orders in accordance with the position of the Wife.
However, the Court could also take the view that it was unable to enforce the terms and conditions of the agreement. Judge Taglieri also stated in obiter dicta that as the property did not legally become the Wife’s until the transfer, the wife had no right to the rent until that transaction was completed.
What could the Wife do?
The Registrar before whom the matter first came before suggested another alternate option (in addition to Contravention) was for the Wife to file a s.106A Application requesting the Court sign the documents necessary for the transfer to occur and the funds to be provided to the Wife.
Another alternative would be to file an Application seeking Orders for the Orders to be considered pursuant to s 79A of the Act.
However, on reading the full judgement it would appear the Court was unlikely to make the Orders sought by the wife in any event due to the Orders being silent on the rent and the position that rent is payable to the registered owner of the property.
Other Key Takeaways
- The dispute between the parties may not have arisen had the Orders been drafted to include the rent in the first instance.
- Orders in this matter were made by consent on 9 August 2023 and the transfer did not proceed due to the rent issue on 8 December 2023, approximately 15 weeks later. Whilst we are not aware of the rent that was owing for the period one has to question the cost of these proceedings for the Wife in comparison to the rent she was disputing.
- Judge Taglieri raised on several occasions throughout the judgement the lack of clarity as to the contravention claimed by the Wife along with the Orders sought by the Wife, reminding us again to ensure that what we are seeking is clear and enforceable.