Field & Kingston

Case [2021] FedCFamC1A 66

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Field & Kingston [2021] FedCFamC1A 66 

Appeal from: Field & Kingston (No. 5) [2021] FamCA 457
Appeal number(s): EAA 76 of 2021
File number(s): PAC 2095 of 2014
Judgment of: TREE, GILL & HARTNETT JJ
Date of judgment: 16 November 2021
Catchwords:

FAMILY LAW – APPEAL – ENFORCEMENT – Where the wife appealed from a purported enforcement order – Where the purported enforcement order did not reflect the intention of the final property settlement orders – Denial of natural justice – Where the primary judge made the order without notice to the parties – Submitting Notice – Appeal allowed – Re-exercise of the discretion – Costs ordered in favour of the wife.

FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where the further evidence was relied upon in support of the re-exercise of discretion – Application allowed in part.

Legislation: Family Law Rules 2004 (Cth) (repealed), r 20.07
Cases cited:

Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Lenova & Lenova (2011) FLC 93-467; [2011] FamCAFC 114

Robertson & Sento [2009] FamCAFC 49

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 27
Date of hearing: 29 September 2021
Place: Sydney
Solicitor for the Appellant: Matthews Folbigg Pty Ltd
Counsel for the Respondent: Mr Page QC
Solicitor for the Respondent: Cathers Beaver & Kamiya

ORDERS

EAA 76 of 2021
PAC 2095 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS FIELD

Appellant
AND:

MR KINGSTON

Respondent

ORDER MADE BY:

TREE, GILL & HARTNETT JJ

DATE OF ORDER:

16 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The appellant wife’s Application in an Appeal filed 20 July 2021 be allowed in part.

2.The appeal be allowed.

3.The order of the primary judge made 29 June 2021 be set aside.

4.By no later than 4.00 pm on 19 November 2021, the parties do all things necessary to effect payment of $1,518,518.16 from the residual proceeds of sale of S Street, Suburb B to the appellant wife, and the balance to the respondent husband.

5.The respondent husband pay the appellant wife’s costs of $10,082.54.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons,…

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AGLC
Field & Kingston [2021] FedCFamC1A 66
Case
[2021] FedCFamC1A 66
Decision Date

CaseChat Overview and Summary

The appeal, decided by the Supreme Court of Victoria, involved the parties who were married in 2002 and separated in 2011, with three children aged between 13 and 18 years. The court was required to determine the proper distribution of the net proceeds from the sale of a property, known as the Suburb B property, following the husband's failure to pay a specified sum to the wife within the stipulated timeframe. This resulted in the sale of the property to satisfy the outstanding debt. The central issues included whether the orders regarding the sale of the Suburb B property were clear and unambiguous, and if so, how the proceeds from the sale should be distributed according to the court's orders. Additionally, the court needed to consider whether the wife's potential reimbursement of the husband for additional personal income tax due to the sale was applicable in this case.

The court determined that the orders made by Foster J on 21 November 2019 were indeed clear and unambiguous. The court held that the wife was entitled to receive a specific sum from the net proceeds of the sale before any other distributions were made. The court further found that the husband was not entitled to reimbursement for any additional personal income tax as a result of the sale, as this was not applicable under the circumstances of the case. The reasoning was based on the specific terms of the orders, which did not provide for such reimbursement in the event of a sale, and the court found that the husband had not provided any evidence to support his claim for reimbursement. Consequently, the wife was entitled to receive the specified sum from the net proceeds of the sale, and the husband's claim for reimbursement was dismissed.

The final orders of the court allowed the appeal, directing that the wife should receive a specific sum from the net proceeds of the sale of the Suburb B property, and that the husband was not entitled to reimbursement for any additional personal income tax. The court also noted that the husband was to pay the wife interest on the outstanding amount from the due date of the original orders. This decision clarified the distribution of the sale proceeds in accordance with the court's orders and dismissed the husband's claim for reimbursement.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the appeal will be allowed.BACKGROUND The parties married in 2002 and separated in 2011. There are three children of the marriage whose ages range from 13 to 18 years, and whose care the parties share. On 21 November 2019, Foster J made final orders effecting a property settlement between the parties. Relevantly, for the purposes of this appeal, those orders provided the following:1.That within three months from this date the husband pay to the wife, or as she may otherwise direct in writing, the sum of $1,232,616 with interest to accrue on that sum from the due date.2.…3.That in default of the husband paying the said sum to the wife by the due date, the husband and wife shall do all things necessary to sell the property at S Street, Suburb B [“the Suburb B property”] for the best price reasonably obtainable and after payment of selling costs and discharge of the mortgages and/or loan advances secured thereon (including CBA home loan, Viridian Line of Credit and Company C facility) pay the net proceeds of sale in the following manner and priority: (a) As to the wife 47.5 per cent of the balance remaining;(b) As to the wife a further payment of $289,790; and(c) As to the balance then remaining to the husband.4.That pending sale of the Suburb B property, the husband pay all outgoings in relation to the property as they fall due and payable and pay as they fall due and payable principle (if any) and interest payments on the borrowings set out hereunder and maintain the balances of the said borrowings at or below the balances set out hereunder:Company C facility $151,777CBA mortgage Suburb B $299,133Viridian Line of Credit $264,1925.That in the event that the Suburb B property is sold to facilitate the payment to the wife, and not otherwise, the wife shall reimburse the husband a sum equivalent to 47.5 per cent of any additional personal income tax assessed as against the husband by reason of an additional capital gain income being included in his, otherwise, assessable taxable income for the relevant year with such payment to be made to the husband within 28 days of the wife being provided with a copy of the husband’s personal income tax return for the relevant year and a copy of the income tax assessment notice for the relevant year with interest to accrue as and from the due date of such payment.… The husband failed to comply with Order 1 of those orders, and thus the sale of the Suburb B property was required to effect Orders 3, 4 and 5. Thereafter, various applications have been filed in the first instance proceedings in an attempt to enforce those orders, including for the sale of the Suburb B property, for the husband to vacate that property, for the assessment of any capital gains tax (“CGT”) liability from the sale, and in relation to various costs applications. On 13 May 2021, 18 months after the property settlement orders were made, the Suburb B property sold for $3,800,000. After various payments were made, the remaining sale proceeds of $2,369,050.71 were paid into a trust account as directed by the parties. The parties have thereafter been in dispute as to how those funds should be distributed in accordance with the 21 November 2019 orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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