Cotter and Cotter

[2018] FamCA 1078

FAMILY COURT OF AUSTRALIA

COTTER & COTTER [2018] FamCA 1078

FAMILY LAW – ENFORCEMENT – where the husband and wife consented to orders for the payment of a lump-sum for partial property settlement and the husband was unable to meet the payment because of a change of financing arrangements – where the wife sought enforcement by the sale of a property – where the Court permitted payments by instalments to give effect to the same timeframe for the payment of those sums as would occur if the property was sold – where the proceedings otherwise adjourned for further hearing.

Family Law Act 1975 (Cth)

APPLICANT: Ms Cotter

RESPONDENT: Mr Cotter

FILE NUMBER: MLC 6305 of 2018

DATE DELIVERED: 18 December 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North SC

SOLICITOR FOR THE APPLICANT: Lexton Legal

COUNSEL FOR THE RESPONDENT: Mr Glick QC

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. The application in a case filed on 19 October 2018 and the response filed thereto on 24 November 2018 are adjourned to 10:00 am on Friday, 8 February 2019.

2. The husband pay to the wife the sum of $18,000 per calendar month commencing on 28 December 2018 and monthly thereafter and that otherwise, paragraph (2) of the Orders made on 1 August 2018 is varied in respect of the payment time.

3. Certify for Counsel, including Senior Counsel.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6305 of 2018

Ms Cotter

Applicant

And

Mr Cotter

Respondent

REASONS FOR JUDGMENT

1. Before the Court on 4 December 2018 was an application in a case filed on 19 October 2018 by Ms Cotter (“the wife”) to which Mr Cotter (“the Husband”) responded by a response to application in a case on 29 November 2018. Each party supported their respective applications for relief by affidavit.

2. This matter was listed in the Judicial Duty List which meant that there was limited time for it to be heard and oral argument had to be curtailed. Despite that, limited cross-examination of the husband was permitted.

3. The submission of senior counsel for the husband was that the Court should only deal with the single issue and otherwise adjourn the proceedings for a further hearing in early 2019 if for no other reasons that the urgency of both parties’ proposed relief was not apparent. There is some merit to that argument. Accordingly, I propose to re-list the unresolved issues on Friday, 8 February 2019 at 10.00 am.

4. The issue that required determination was the wife’s application to enforce her entitlement to be paid a lump-sum payment. She sought that a property be sold to satisfy that order. The husband opposed the relief sought by the wife and argued for a variation of the lump-sum order, such that the amount outstanding would be paid by instalments. In essence, it was submitted on behalf of the husband that his proposal would still see the wife receive her funds prior to the implementation of the wife’s proposals relating to a sale. There is some sense in that position as well.

5. The relevant order giving rise to the dispute was made by consent of both parties of 1 August 2018. Paragraph (2) of that order reads as follows:

   Interim property settlement

   (2)Within 7 days the Husband pay, or cause to be paid, the sum of $60,000 to Lexton Legal and a further $100,000 within 37 days to Lexton Legal, for and on behalf of the Wife, such sums to be characterized as a partial property settlement to the Wife.

6. In his written submission, senior counsel for the husband referred incorrectly to paragraph (4) of the orders, but it is clear that he was referring to paragraph (2) of those orders.

7. Subsequent to those orders, all but $70,000 has been paid. It was submitted that the appropriate course of action was for the husband to pay to the wife that $70,000 by monthly instalments of $10,000.

8. The wife’s position was that the property at B Street, Suburb C (“the Suburb C property”), should be sold forthwith and the proceeds be used to satisfy the debt. As I have indicated, on the assumption that such a proposal was implemented, unless there was something very unusual, that money would not be paid for some months.

9. The husband’s case was that when he consented to the order on 1 August 2018, he assumed that he would be able to borrow $100,000 to enable the payment to the wife. He deposed to the fact that the Commonwealth Bank of Australia had refused him further funding unexpectedly. He did however indicate that funding would be allowed, but it was only on the basis that the home in which the wife is living, at D Street, Suburb E (“the Suburb E property”), would be sold. The wife’s position, as articulated by senior counsel, was that she wanted to retain the Suburb E property. The husband’s position is that having regard to any objective analysis of the facts of this case, such an order is unlikely having regard to the fact that there is suggested to be $18,500,000 in real property and the business interests of which the Suburb E property is worth $9,000,000.

10. Senior counsel for the husband submitted that this was a 12 year relationship where predominantly, the wife’s contribution was that of homemaker and parent and there were substantial sums and property brought into the relationship by the husband.

11. It is not my function to guess at what orders should be made, nor to determine whether the wife’s position is unrealistic.

12. The discrete determination here is whether or not there is any prejudice to the wife by altering the orders made in 1 August 2018.

13. The wife’s position was that the husband had significant funds available to him and over a period of time subsequent to the August orders, he made payments to the Australian Taxation Office and/or into his superannuation fund to rectify its position of what appears to be a non-compliance with the law.

14. The husband was cross-examined to show that he had ample funds available to meet the obligations under the August orders. The husband’s sworn evidence however was that whilst there was little dispute about the facts of the balances of the relevant accounts under consideration, he could not say that these funds were his. The explanation given by the husband was that he conducts a “business” which promotes entertainment tours and manages entertainers. He said the business had always been conducted on the basis of money flowing through the home-loan encumbering the Suburb C real property and there was a redraw facility attached to it. He said that when he received “ticketing money”, he juggled his money with those of the patrons, but ultimately, he had to satisfy the contractual obligations to the artists who were touring.

15. On the evidence before me, I could not be satisfied that the husband owns the funds in the sense of being able to use them absolutely as distinct from them being trust funds, and even if he was using a drawdown facility to satisfy the superannuation fund requirements, those are monies which will benefit the wife either directly or indirectly in the property settlement.

16. The wife seeks an enforcement which requires the exercise of discretion. On the basis that there is not sufficient evidence to enable me to determine that enforcing the order will give her the funds prior to the time proposed by the husband, I am satisfied that it is appropriate to vary paragraph (2) of the 1 August 2018 orders to give the husband more time.

17. What is unclear to me however, is how the husband calculated the quantum of $10,000 per month. When I questioned senior counsel for the husband as to whether there was any specific basis behind that, he indicated there was not, but that it was a sum that the husband was confident he could meet. Having regard to the fact that he was paying payments that were otherwise flexible and apparently within his grasp, it seems to me that the $10,000 is a figure that ought not to be necessarily the one that should be used.

18. On the assumption that the wife’s application had been successful, it is inconceivable that she would have received her money in less than three months from a sale. There is $70,000 outstanding and as such, assuming that it would take some time for the sale of the Suburb C property to occur and her to receive that sum, the best part of three months would have gone by. In my view, the appropriate quantum for the husband to be paying, which would give the wife the sum to which she is entitled but obviate the necessity for a sale is $18,000 per month. That sum, paid monthly, would see the full sum paid in approximately four months.

19. I order that the husband pay $18,000 per calendar month, with the first payment due on 28 December 2018. The balance of the proceedings are otherwise adjourned. I certify that it was appropriate in the circumstances to brief counsel, including senior counsel.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 December 2018.

Acting Associate:

Date: 18 December 2018