Connelly and Hender

[2008] FamCA 1004

FAMILY COURT OF AUSTRALIA

CONNELLY & HENDER [2008] FamCA 1004

FAMILY LAW – PROCEDURAL – Interim application - enforcement

Family Law Act 1975 (Cth)

APPLICANT: Ms Connelly

RESPONDENT: Mr Hender

FILE NUMBER: ADC 1434 of 2008

DATE DELIVERED: 20 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 20 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Mellows

SOLICITOR FOR THE APPLICANT: O’Keeffe Pithouse

COUNSEL FOR THE RESPONDENT: Mr A Jordan

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

Orders

1. That the Application in a Case filed by the wife on 11 April 2008 be dismissed and removed from the active pending list.

2. That there be no order for costs.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1434 of 2008

MS CONNELLY

Applicant

And

MR HENDER

Respondent

EX TEMPORE REASONS

1. In this matter I have an Application before me filed by the wife on 11 April 2008 in which she seeks enforcement of the husband's obligation under paragraph 1(d) of the Orders made in this Court on 18 December 2002.  What the wife seeks is that the husband forthwith provide a motor vehicle of the wife's choice to the value of $80,000.  The basis of this is the wife's interpretation of that paragraph of the order.

2. In any event, that application is opposed by the husband. 

3. There are affidavits before me filed by both parties.  There is the wife's Affidavit filed on 11 April 2008 in support of her application, and the husband has now filed an Affidavit on 23 May 2008 in support of his opposition to the application.

4. This matter has been heard today on the papers.  I have heard submissions from counsel on behalf of both parties, and Mr Jordan for the husband has provided me with a summary of argument, which I have had the opportunity to read.

5. The issue here is, as I say, enforcement.  However, Mr Mellows in his submission to me put an alternative basis for the order the wife seeks, namely, pursuant to the liberty to apply reserved in the order of 18 December 2002.  It was put on the basis that if I was not with the wife in terms of her first argument on enforcement, then the wife could rely on the liberty to apply, as Mr Mellows put it, to fill in any gaps in the order and in effect make the same order that the wife seeks by way of enforcement.

6. Mr Mellows referred me to the well-known cases of Molier v Van Wyk (1980) FLC 90-911 and Ravasini and Ravasini (1983) FLC 91-312, in support of his alternative argument as to use of liberty to apply. However, in my view they are not authorities which would lead me to make the order that the wife seeks in this case.

7. It would be rewriting the order to do what the wife wants pursuant to the liberty to apply, and that is simply not permitted under a machinery provision, which that is.

8. That said, in relation to the enforcement, it is a matter of interpretation of the order.  There are a number of relevant paragraphs in the order, although it is paragraph 1(d) which is sought to be enforced.  That paragraph in its terms refers back to paragraph 1(b)(i)(c) of the order, and, as has been put to me by both counsel, paragraph 1(k) also should be considered and has a bearing on this dispute.

9. Those paragraphs provide as follows:

   “1. That in full and final settlement of all claims between the parties for settlement of property either in the past, present or in the future: -

   …

   b)

   i) The husband shall pay or cause to be paid to the wife the sum of ONE MILLION TWO HUNDRED AND TWENTY THOUSAND DOLLARS ($1,220,000) in the following manner: -

   a)…

   b)…

   c)SEVEN HUNDRED AND TWENTY THOUSAND DOLLARS ($720,000) payable at the rate of ONE THOUSAND ONE HUNDRED AND FIFTY THREE DOLLARS AND EIGHTY FIVE CENTS ($1,153.85) the first of such payments to be on the settlement date and weekly thereafter until payment in full of the said sum;

   …

   d)     The husband shall on the settlement date make available for the wife and/or cause [A] Pty Ltd to make available for the wife a SEVENTY THOUSAND DOLLAR ($70,000) all up cost motor vehicle of the wife’s choice for the sole use of the wife free of all running, registration and insurance costs (the wife to pay and be responsible for any excess payments necessary accident repairs not covered by insurance and any extra insurance premiums over and above a named driver policy) (and replaced at least every five (5) years hereafter with a car of the same value plus CPI increases) for twelve (12) years from the date of this order and upon payment in full by the husband pursuant to paragraph (1)(b)(i)(c) hereof the then said vehicle shall be transferred to the wife at her cost free of any encumbrance and the wife shall then pay and be responsible for all its running registration and insurance costs and shall fully indemnify the husband in relation to same.

   …

   k)   In the event that the husband shall sell all of the business [S Pty Ltd] then on the settlement date of such sale: -

   i)the husband shall forthwith be fully released from his obligation under paragraph 1(d) hereof save and except for his obligation to transfer to the wife the current vehicle she is using;

   ii)any balance amount due and payable to the wife pursuant to paragraph 1(b)(i) hereof shall forthwith become due and payable;

   ...”

10. Mr Mellows suggested that paragraph 1(d) is quite clear and there is no ambiguity in relation to it.  However I beg to differ.  That paragraph is inexpertly drawn and it is extremely difficult to follow.  For example where does the paragraph pick up again after the parenthesis.  It is frankly an example of where parties and their legal representatives at the time should be more careful in drawing consent orders which might create problems further down the track, as this one has. It will be a salutary lesson to the party who is unsuccessful in these proceedings and really should be a warning for the future, when consent orders are made.

11. In any event, that said, the parties appear to be ad idem that paragraph 1(d) provides, firstly, for the husband to make available a motor vehicle with an all-up cost of $70,000 and the wife is to be responsible for excess payments in relation to insurance and the like.  Then there is this clause in parenthesis which says, "and replaced at least every five (5) years hereafter with a car of the same value, plus CPI increases."

12. If you take the parenthesis out of that and look at it more closely, it seems to be common ground that it provides for the wife to get a car at settlement and which is then replaced every five years thereafter.

13. Then the clause picks up after the parenthesis with the words "for twelve (12) years from the date of this order".  As I say, I do not know where that follows on from.  Does that relate to the payment of running, registration and insurance costs, with the wife being responsible for excess payments?  Or, does it refer to the replacement at least every five years? 

14. It seems that the parties at least have proceeded on the basis that that order requires the provision of a motor vehicle to the wife at least every five years of that same value, namely, $70,000 plus CPI increase, for a period of 12 years.  The 12 years clearly relates - and perhaps I can say "clearly" in this context - to the time provided under paragraph 1(b)(i)(c).

15. The calculation has been done by Mr Jordan or his instructor and there does not seem to be any dispute about it, but if the husband paid the weekly sum required it would take 12 years to pay the total sum of $720,000.  Thus that is where the 12 years comes in.

16. Paragraph 1(d) then goes on and says:

    “… and upon payment in full by the husband pursuant to paragraph 1(b)(i)(c) hereof the then said vehicle”

    Now pausing there, what does that refer to?  What is the "said vehicle"?  Is it the vehicle that is mentioned at the start of the paragraph or is it one of the subsequent vehicles if you reach that point?  The paragraph continues -

    “shall be transferred to the wife at her cost free of any encumbrance and the wife shall then pay and be responsible for all its running registration and insurance costs and shall fully indemnify the husband in relation to same.”

17. What Mr Mellows puts to me on behalf of the wife is that that paragraph creates a scheme and there are two parts to the scheme.  One part is that the wife is provided with a car to the value of $70,000 upon settlement.  The second part is that over the subsequent 12-year period the wife is to be provided with a motor vehicle at least every five years.  She would get one on that basis in 2008 and then another one in 2013.

18. Mr Mellows' submission is that it is not open to the husband, under that paragraph, to pay the amount of $720,000 in full and therefore avoid the provision of a motor vehicle every five years.  However, I find that an extraordinary submission to make in the circumstances of paragraph 1(d) and the other relevant paragraphs.  It is quite apparent to me, even given my criticisms of the drafting of this order, that this order is tied into the payment by the husband of the $720,000, which he has 12 years to pay.  Paragraph 1(b)(i)(c) in my view allows and provides for the husband to pay the full amount off.  It says, "the first of such payments to be on the settlement date and weekly thereafter until payment in full of the said sum."  It does not say, "the husband has to pay $1153.85 every week for a period of 12 years."  It says, "SEVEN HUNDRED AND TWENTY THOUSAND DOLLARS ($720,000) payable at the rate of ONE THOUSAND ONE HUNDRED AND FIFTY THREE DOLLARS AND EIGHTY FIVE CENTS ($1153.85) … and weekly thereafter until payment in full of the said sum."  Thus the husband can pay off the entire amount before 12 years.

19. Then paragraph 1(d) provides the link, namely, "…upon payment in full by the husband pursuant to paragraph 1(b)(i)(c) hereof the then said vehicle" - presumably the vehicle that the wife has at the time that the husband pays off the amount of $720,000 - "shall be transferred to the wife."

20. I mentioned paragraph 1(k) as having some relevance to this.  It is a particular example of how the husband can be relieved from the obligation under 1(d) by paying off the entire amount, but that is not the only provision, in my view, which provides for the husband to be able to pay off the full amount.  As I said, and to repeat, in my view that is clearly available and open on the plain meaning and wording of 1(b)(i)(c).

21. Thus in my view the husband has complied with the order and I propose to dismiss the application for enforcement.

22. In relation to costs I consider that there should be no order for costs.  This is a matter which has stemmed from inappropriate drafting of a clause in a consent order.  I do not know who is responsible for it.  I do not need to know, but both parties agreed with it. Thus the parties should jointly take responsibility for that.

I certify that the preceding 22 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 20 August 2008.

Associate