Field and Kingston (No 5) - [2021] FamCA 457

FAMILY COURT OF AUSTRALIA

FIELD & KINGSTON (NO. 5)

[2021] FamCA 457

FAMILY LAW – PRACTICE AND PROCEDURE – final orders made by Foster J on 21 November 2019 – respondent being dilatory in his compliance with those orders.

Field & Kingston (No. 4) [2019] FamCA 863
Field & Kingston (No. 4) [2021] FamCA 357

APPLICANT:

Ms Field

RESPONDENT:

Mr Kingston

FILE NUMBER:

PAC

2095

2014

DATE DELIVERED:

29 June 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

21 & 22 June 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Cathers Beaver & Kamiya

Orders

On or before noon on 6 July 2021 the respondent must pay the applicant the entire sum ordered by Foster J in paragraph 1 of his Honour’s orders made 21 November 2019.

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 Field & Kingston 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: PAC 2095 of 2014

Ms Field

Applicant

And

Mr Kingston

Respondent

REASONS FOR JUDGMENT

Introduction

Following the handing down of my reasons for judgment on costs[1] I had hoped that what seemed to be the remaining impediment to the conclusion of this litigation was removed. That hope has proven forlorn.
[1]Field & Kingston (No. 4) [2021] FamCA 357.
The relevant property has been sold, the net proceeds of sale remain in trust and costs have been determined. On 21 June 2021, approaching two years since Foster J made property adjustive orders, this proceeding was mentioned before me on account of what I was told was an insuperable obstacle to finalisation, namely the calculation and payment of capital gains tax.
The subject of capital gains tax has been a live issue since I assumed control of this proceeding. On behalf of the respondent, Ms Beaver informed me during several directions hearings that over a sustained period the respondent and his accountant have been endeavouring to quantify precisely the capital gains tax payable in respect of the sale of the Suburb B property. Ms Beaver submitted that unless and until his liability for capital gains tax is quantified, the respondent will not agree to the release of the sum presently held in trust. Ms Munk, the applicant’s solicitor told me on 21 June 2021 that her client was willing to receive an amount less than the sum ordered by Foster J…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Field and Kingston (No 5)

Details

AGLC: Field and Kingston (No 5) [2021] FamCA 457
Case: [2021] FamCA 457
Decision Date

CaseChat Overview and Summary

This matter concerned an application before the Family Court of Australia, with Ms Field as the applicant and Mr Kingston as the respondent. The dispute revolved around the respondent's alleged dilatory compliance with final property adjustment orders made by Foster J on 21 November 2019. The applicant sought to enforce these orders, while the respondent resisted finalisation, citing unresolved issues concerning the calculation and payment of capital gains tax arising from the sale of a property.

The court was required to determine whether sufficient time had elapsed for the respondent to quantify his capital gains tax liability and whether his continued delay in complying with the existing orders was justified. Specifically, the court had to consider the respondent's assertion that he could not agree to the release of funds held in trust until his capital gains tax liability was precisely determined, and whether this constituted an "insuperable obstacle" to the conclusion of the litigation.

Wilson J reasoned that the respondent had been provided with sufficient information and time to address the capital gains tax issue, noting that the respondent's own affidavit indicated he had received advice regarding his estimated liability and the implications for reimbursement under paragraph 5 of Foster J's orders. The court found that the respondent's grievance related more to the net amount he would receive rather than an inability to quantify the tax. Furthermore, Wilson J observed that Foster J had already extensively considered the potential capital gains tax liability in the original orders, which remained undisturbed. Consequently, the court concluded that the time had come for the existing orders to be given effect.

The respondent was ordered to pay the applicant the entire sum stipulated in paragraph 1 of Foster J's orders of 21 November 2019 by noon on 6 July 2021.

Orders