Field & Kingston

Case [2021] FedCFamC1F 353

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Field & Kingston [2021] FedCFamC1F 353

File number(s): PAC 2095 of 2014
Judgment of: RIETHMULLER J
Date of judgment: 17 December 2021
Catchwords: FAMILY LAW – PROPERTY – Application to vary orders pursuant to s 79A – Summary judgment application – application for stay of previous final orders pending s 79A application – No new facts raised by the parties in relation to previous judgments and appeals – Application pursuant to s 79A summarily dismissed
Legislation:

Family Law Act 1975 (Cth) ss 79A, 117B

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09

Cases cited:

Concrete Proprietary Limited v Parramatta Design [2006] HCA 55

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

Field & Kingston [2020] FamCA 1126

Field & Kingston [2021] FedCFamC1A 66

Kingston & Field [2020] FamCAFC 171

Kingston & Field (No 2) [2020] FamCAFC 235

Kingston v Field [2020] HCASL 230

Kingston v Field [2021] HCASL 2

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88
Division: Division 1 First Instance
Number of paragraphs: 54
Date of hearing: 16 December 2021
Place: Parramatta
Solicitor for the Applicant: Ms Munk
Counsel for the Respondent: Mr Page QC
Solicitor for the Respondent: Ms Beaver

ORDERS

PAC 2095 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS FIELD

Applicant
AND:

MR KINGSTON

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

17 DECEMBER 2021

THE COURT ORDERS THAT:

1.That the application by the husband filed 1 September 2021 pursuant to s 79A of the Family Law Act 1975 be dismissed.

2.That the application by the husband filed 16 November 2021 seeking a stay of the enforcement of the orders of Justice Foster pending the determination of the husband's application pursuant to s 79A be dismissed.

3.That the application by the wife filed 6 July 2021 be dismissed.

4.That the husband pay interest to the wife on the sum outstanding to her pursuant to the orders in the sum of $55,323.54.

5.That the husband forthwith provide a written and signed authority to the trustee Mr SS directing him to pay to the wife the sum of $1,588,852.24 from the monies he holds on trust for the benefit of the parties (together with providing a copy of this to the solicitors for the wife) by 4.00 pm on Monday, 20 December 2021.

FURTHER

In the event that the husband fails to provide the trustee with the said authority (together with a copy to the wife's solicitors) by the time provided herein, the wife is appointed to execute the said authority in the name of the husband and to do all acts and things necessary to give validity and operation to the authority.

6.The wife electronically file and serve written submissions as to costs by no later than 7 January 2022.

7.The husband electronically file and serve written submissions as to…

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Field & Kingston [2021] FedCFamC1F 353
Case
[2021] FedCFamC1F 353
Decision Date

CaseChat Overview and Summary

The case of Field & Kingston concerns a dispute between a husband and wife over property settlement orders and enforcement of these orders. The husband had originally appealed against the orders made by Foster J, which were subsequently dismissed by the Full Court and the High Court. The wife filed an enforcement application seeking a warrant for possession and sale of the property due to the husband's failure to make the required payment to her. The husband opposed the sale of the property and sought a stay and a variation of the orders, but these applications were dismissed by Altobelli J.

The primary legal issues before the court were whether there had been a miscarriage of justice in the making of the original orders and whether there was a failure by the registrar to make an order for interest payable on the property settlement sum. The court had to determine if the husband's claims were valid and whether the orders for the sale of the property and distribution of proceeds were appropriate.

The court found that there was no miscarriage of justice in the original orders as the valuation evidence provided a reasonable basis for the distribution of the property. The court also determined that the registrar's failure to order interest on the property settlement sum did not constitute a miscarriage of justice. The court held that the sale of the property and the use of the actual sale price to calculate the parties' entitlements was appropriate and did not result in a miscarriage of justice.

The final orders of the court were that the wife's application for a review of the registrar's orders was dismissed. The court found no miscarriage of justice in the original orders and determined that the enforcement of these orders was appropriate.

Orders

Orders of the court

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Background

Background to the litigation

The wife also seeks a review of orders of a registrar on the basis that, when making various enforcement orders, the registrar failed to, or overlooked, making an order for interest payable upon the property settlement sum, which has been held in a trust account pending the sale of the property as a result of the refusal of the husband to give an authority to the trustee to pay the monies out. There are a number of outstanding orders with respect to costs and interest, largely summarised in the order of the registrar. BACKGROUND The husband in this case has long been dissatisfied with the property settlement orders made by Foster J. He filed a Notice of Appeal on 17 December 2019. Pending the appeal, he sought a stay order from Foster J who, having heard his stay application, made stay orders conditional upon the husband making a payment to the wife in the sum of $500,000 within eight weeks of the stay being granted. The husband appealed those stay orders and, as a result of his failure to comply with the rules his appeal was deemed to be abandoned. He sought a reinstatement of that appeal, which was refused for the reasons given in Kingston & Field [2020] FamCAFC 171. That application was also the subject of a special leave application to the High Court, which was refused, as reported in Kingston v Field [2020] HCASL 230. The orders made by Foster J settling the property of the parties provided for an initial opportunity for the husband to pay a fixed sum to the wife and to retain a property that the parties had together. This is a standard form of order that is commonly made based upon valuation evidence, as it is not uncommon in matrimonial proceedings for one of the parties to wish to retain a property they owned when together. The husband did not make the payment of the sum required in Foster J's orders in the timeframe provided. The orders thereafter provided for the property to be sold and the proceeds of sale to be distributed in the manner set out in the orders, in substance, still giving effect to the percentage splits that his Honour had determined. The reasons and orders are all set out in his Honour's judgment in Field & Kingston (No 4) [2019] FamCA 863. In August 2020 the wife filed her enforcement application seeking a warrant for possession and sale of the property due to the failure of the husband to make the payment to her as originally ordered by Foster J, and a failure to place the property on the market as was contemplated by the orders if the liquidated sum was not paid to the wife in the time provided. On 8 September 2020, the appeal against Foster J's orders was heard and dismissed by the Full Court for the reasons set out in Kingston & Field (No 2) [2020] FamCAFC 235. The husband sought special leave to appeal this judgment to the High Court of Australia, which was refused as set out in Kingston v Field [2021] HCASL 2. The husband continued to oppose the sale of the property and sought a stay and a variation of the orders by Foster J so as to extend the time initially permitted under the orders to make the fixed payment to the wife in order to retain the property. This application was heard by Altobelli J who concluded that the terms of the orders that the husband sought to have varied were not machinery provisions but substantive orders and dismissed the husband's application. The reasons for this are set out in Field & Kingston [2020] FamCA 1126.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I also note that in addition to the point concerning the affixing of the seal (discussed above), there was a complaint that a registrar telephoned the applicant to alert him to potential difficulties with a stay application and item 27. Again, it seems to me that this does not found a claim under s 79A of the Act. Even if it is the case that the registrar had gone beyond the usual bounds in order to alert a self-represented litigant of a particular potential problem in their case, that, at most, would be a potential basis for a complaint by the wife as to the registrar having done more for the husband than she ought to have, if, indeed, she did cross that fine line when ensuring that a self-represented litigant was given appropriate information by the Court. No complaint is made by the wife. The complainant by the husband seems to me to lead nowhere. (2) Claims with respect to the enforcement of the judgment Following the applicant husband's failure to pay the wife the sum ordered by Foster J in the trial judgment, the orders provided for the property to be sold and the parties to receive the proceeds on the percentage split as set out above. This was, in my view, an entirely predictable order for the purpose of permitting one party to retain a property by paying out the other party's entitlements based upon the valuation evidence accepted at trial. A value of a property, as given in evidence by a valuer, is inevitably a best estimate and utilised as a valuation figure for the purpose of giving a judgment and calculating entitlements without putting the parties to the expense of advertising and auctioning a property in order to more accurately determine the precise market value of a property. At times, this may or may not result in a small injustice to one or other of the parties because a valuer's evidence is used rather than the actual market value that would be determined by a sale. The option of paying out the wife was either declined by the husband or was not able to be taken up by him in his circumstances at that time, and, therefore, the property was put to market to be sold. It is entirely appropriate that once the property was sold, the actual sale price be used for the purpose of calculating the parties' entitlements. The actual sale price almost always represents the true value of the property as it is the value that the parties have been able to achieve at market. Whilst this resulted in the wife receiving a greater sum than she would have received had the husband paid her out in accordance with the early orders of Foster J, it is not a basis, in my view, for suggesting that there is a miscarriage of justice. In reality, had he paid her the money in the amount set by Foster J, having regard now to the sale price that was achieved for the property, that figure was particularly low. That may possibly have been an arguable basis for some form of claim of a miscarriage of justice by the wife; however, as the case unfolded, the parties are to receive their entitlements based upon the actual sale figure for the property. There is no basis for suggesting that this form of orders is capable of founding a claim for the miscarriage of justice in the context of this case (either generally or as alleged in item 46).

Ratio Decidendi

Legal Principle Established

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