DUNCAN & DUNCAN (No.2)
[2015] FCCA 944
•20 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUNCAN & DUNCAN (No.2) | [2015] FCCA 944 |
| Catchwords: FAMILY LAW – Property – enforcement proceedings – binding financial agreement – enforcement of obligation. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 90B, 90C, 90KA |
| Duncan & Duncan [2014] FCCA 2729 |
| Applicant: | MS DUNCAN |
| Respondent: | MR DUNCAN |
| File Number: | MLC 10227 of 2012 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 20 February 2015 |
| Date of Last Submission: | 20 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 20 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Pearsons Lawyers Pty Ltd |
| The Respondent: | By his solicitor Mr S. Rubera |
| Solicitors for the Respondent: | Sebastian Rubera & Associates |
ORDERS
THE COURT DECLARES THAT:
The sum outstanding to the Applicant wife by way of enforcement of the Binding Financial Agreement dated 18 November 2009 is $85,905.12.
THE COURT ORDERS THAT:
It is ordered pursuant to the provisions of s.90KA(c) of the Family Law Act 1975 (“the Act”) that the aforementioned Binding Financial Agreement is to be enforced as if it were an order of the Court on application of the wife made on 12 December 2012.
The Respondent husband pay the sum of $85,905.12 to the Applicant wife in the following manner:
(a)That paragraph 3(b) to 3(d) inclusive of these Orders are binding on (omitted) (“the Trustee”) of (omitted) Superannuation Fund (“the Superannuation Fund”) member number (omitted).
(b)That pursuant to section 90MT(1)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of 100% and there be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders.
(c)That Order 3(b) has effect from the operative time and that the operative time for such Order be four (4) business days after the service of a sealed copy of these Orders made by the Court on the Trustee of the Superannuation Fund.
(d)That the Trustee of the Superannuation Fund, in accordance with the obligations set out under the Act and the Regulations, do all acts and things and sign all such documents as may be necessary to calculate the entitlement of the Wife and make payment to the Wife in accordance with these Orders and to give effect to these Orders.
(e)The balance outstanding by cash payment be made by 4.00 pm on 20 April 2015 to the wife’s solicitors, Pearsons Lawyers Pty Ltd.
The Applicant file and serve all material and written submissions in relation to her application for costs by not later than 4.00 pm on 6 March 2015.
The Respondent (and if necessary his legal representative separately) file and serve all material and written submissions in relation to the application for costs by not later than 4.00 pm on 27 March 2015.
The Applicant file and serve any further material in reply by not later than 4.00 pm on 7 April 2015.
AND THE COURT NOTES:
The parties consent to the decision in relation to costs being dealt with on the papers after the conclusion of the parties filing their respective submissions unless requested otherwise in written submissions.
Once the parties have filed their respective written submissions they are to email a copy in word format to associate.judgeo’[email protected] as soon as practicable.
The respondent did not oppose orders (1), (2) and (3).
IT IS NOTED that publication of this judgment under the pseudonym Duncan & Duncan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 10227 of 2012
| MS DUNCAN |
Applicant
And
| MR DUNCAN |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court are proceedings between Ms Duncan (“the wife”) and Mr Duncan (“the husband”). The background to these proceedings is set out in Duncan & Duncan [2014] FCCA 2729. For the reasons set out in that decision the Court dismissed an argument made by the husband that a financial agreement entered into between the parties and dated 18 November 2009 wasn’t enforceable and/or should be set aside.
The proceedings were adjourned to today, 20 February 2015 to deal with the wife’s enforcement application. Today, Ms Smallwood of Counsel has appeared for the wife and Mr Rubera, Solicitor has appeared for the husband. The matter was mentioned earlier this morning and was stood down. The parties returned to Court after midday. The parties have handed the Court a proposed minute which resolves most of the outstanding issues in the substantive proceedings, save for an issue in relation to costs to which I will return.
These are enforcement proceedings. The provisions of Division 25B of the Federal Circuit Court Rules 2001 (“the Rules”) apply and they deal with how an obligation to pay money can be enforced. The financial agreement can be enforced as is provided for in section 90KA of the Act, as if it was an order of the Court. The relevant provisions of the Rules define inter alia a person who may enforce an obligation to pay money and how that can be done. These include the following:
“(a)an order declaring the total amount owing under an obligation;
(b)an order that the total amount owing must be paid in full or by instalments and when the amount must be paid;
(ba)an order for payment under rule 25B.09;
(c)an order for enforcement (see rule 25B.11);
(d)an order in aid of the enforcement of an obligation;
(e)an order to prevent the dissipation or wasting of property;
(f)an order for costs;
(g)an order staying the enforcement of an obligation (including an enforcement order);
(h)an order requiring the payer to attend an enforcement hearing;
(i)an order requiring a party to give further information or evidence;
(j)an order that a payer must file a financial statement;
(k)an order that a payer must produce documents for inspection by the Court;
(l)an order dismissing an application;
(m)an order varying, suspending or discharging an enforcement order.”
Given the findings made for the reasons set out in Duncan & Duncan [2014] FCCA 2729 the parties provided an agreed proposed minute which was:
“1.It is declared that the sum outstanding to the wife by way of enforcement of the provisions of the Binding Financial Agreement dated 18th November 2009 is $85,905.12.
2.The Respondent husband pay the sum of $85,905.12 to the Applicant wife in the following manner:
(a)That paragraph 3(b) to 3(d) inclusive of these Orders are binding on (omitted) (“the Trustee”) of (omitted) Superannuation Fund (“the Superannuation Fund”) member number (omitted).
(b)That pursuant to section 90MT(1)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of 100% and there be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders.
(c)That Order 2(b) has effect from the operative time and that the operative time for such Order be four (4) business days after the service of a sealed copy of these Orders made by the Court on the Trustee of the Superannuation Fund.
(d)That the Trustee of the Superannuation Fund, in accordance with the obligations set out under the Act and the Regulations, do all acts and things and sign all such documents as may be necessary to calculate the entitlement of the Wife and make payment to the Wife in accordance with these Orders and to give effect to these Orders.
(e)The balance outstanding by cash payment be made by 4.00 pm on 20 April 2015 to the wife’s solicitors, Pearsons Lawyers Pty Ltd.”
As the reasons published as Duncan & Duncan [2014] FCCA 2729 make clear the financial agreement was found by the Court to be binding. It is necessary to make orders to declare the amount that is outstanding to the wife from the husband. The balance of the proposed minute provides the mechanism (which is now agreed) by which that outstanding amount is to be enforced. The obligation (which has been identified, quantified and now agreed) is to be enforced as provided for in the minute by a split from the husband’s superannuation fund from which an amount is to be provided to the wife and for the balance owing after that to be paid to the wife by, it has now been agreed, 20 April 2015.
Exhibit A5 makes clear that the trustee of the relevant superannuation fund has been accorded procedural fairness. The figure as to the outstanding amount owed to the wife has been arrived at by agreement. The mechanism by which that amount will be repaid has also been agreed to by the parties.
There remains to be dealt with the wife’s application for costs. It has also now been agreed that it is more efficacious given the issues raised for the parties have to have the opportunity to make submissions in relation to that application in writing.
Accordingly, I will make the directions for that purpose and otherwise make the orders as set out in the minute.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 3 March 2015