Field & Kingston
[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 costs in response by no later than 31 January 2022.
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, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Field & Kingston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The husband in this matter filed an application pursuant to s 79A of the Family Law Act 1975 (Cth) ("the Act") on 1 September 2021 seeking to set aside the property settlement orders made by Foster J on 21 November 2019. The effect of those property settlement orders, in substance, was to divide the property of the parties at 47.5/52.5 per cent to the wife and husband respectively following a marriage of 14 years or thereabouts, during which the parties had three children. The husband also seeks an order for a stay of the enforcement of the orders of Foster J, pending the determination of his application pursuant to s 79A of the Act.
The wife seeks the summary dismissal of the s 79A application. If the s 79A application is summarily dismissed, there is no purpose to be served by a stay, and if it is not summarily dismissed, she opposes the stay application.
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.
The husband remained opposed to selling the property and the wife engaged the assistance of the sheriff. The matter then came before Wilson J, at which time, it seems, the husband cooperated sufficiently to enable the sale and, ultimately, despite some hiccups, signed the contract of sale. The sale settled and the monies are held by a trustee but have not been distributed as the trustee has not had an authority from both the husband and wife to deal with the monies.
The property ultimately sold for a far greater figure than the valuation evidence indicated before Foster J. It sold for $3.8 million on 13 May 2021. The amount due to the wife was litigated before Wilson J and, ultimately, on appeal, the Full Court determined the amounts due and payable in their judgment, making the following orders:
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.
These orders and the reasons for them are set out in Field & Kingston [2021] FedCFamC1A 66.
It is in the context of this history of the proceedings that the husband's application, pursuant to s 79A of the Act is brought and the various forms of relief are sought by him and the wife. The wife's application for summary dismissal relies upon s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") which provides for summary dismissal in cases where there is no reasonable prospects of success. This is reflected in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") that provide in rule 10.09 for summary judgment where there is no reasonable likelihood of success. Importantly, s 46(3) of the FCFCOA Act provides that an application may not have reasonable prospects of success even though it is not hopeless or bound to fail.
On summary judgment applications, it is the applicant - in this case, the wife who seeks summary judgment - who bears the onus of showing, on the material before the Court, that the husband's case has no reasonable prospect of success. Whilst there are many judgments debating the nuances of the test for summary judgment, it appears to me that it is appropriate to apply the words of the FCFCOA Act.
I turn, then, to consider the grounds of the husband's application pursuant to S 79A of the Act. These are set out in a document filed on 21 October 2021 which contains a total of 15 grounds, the first three of which are, somewhat unhelpfully, all numbered 1 and which I will refer to the first through third ground 1. This document was supplemented by a large document setting out what is described as three key issues and 53 items numbered 1 to 54, although item 34 was omitted in the list.
Counsel for the husband provided a brief written summary of argument before making oral submissions. This written summary was filed on 7 December 2021. It frames the cases on the basis that the husband's perception of a miscarriage of justice should be sufficient to support a claim under s 79A of the Act. It is argued that this perception is based upon the various factors set out in the summary of argument which, although not enumerated, appear to be the following five key areas:
(1)claims with respect to the trial process;
(2)claims with respect to the enforcement of the judgment;
(3)the husband's claim that he did not receive adequate explanations or advice at trial from his own lawyers;
(4)the failure of the wife to make full and frank disclosure; and
(5)circumstances concerning the former employment of his wife's solicitor as a registrar of the Court.
At paragraph 10 of the summary of argument, counsel argued that the appeal process looks at errors of law but not process. I do not accept this proposition as the appeal process deals with claims concerning process under the category of procedural fairness. Indeed, it is well accepted that any issues concerning procedural fairness or apprehended bias ought to ordinarily be dealt with first in any appeal: see, for example, Concrete Proprietary Limited v Parramatta Design [2006] HCA 55 at [117] and Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [9] to [10].
In order to deal with the argument as framed by counsel for the husband, it is necessary for me to not simply look to each individual item which, as his counsel said often in submissions, may, on its own, not be a basis for a s 79A application, but to consider the husband's case on a more holistic basis.
In order to do this, I have looked through all of the various items and points and grounds that the husband has made and attempted to group them by way of subject matter or general subject matter in order to consider them both individually and holistically. I have dealt with the grounds, key issues, and items generally in the groups identified by the husband's counsel in his written submissions, having regard to the issues that they have raised, together with some items to which the documents relate. Whilst I have attempted to group the points to make them more coherent and understandable, I have not limited my consideration of any item to the ambit of a particular group heading that the topic comes under but considered each of them individually and holistically.
(1) Claims with respect to the trial process
This topic covers a number of matters surrounding the trial process and court process in this case. First, a complaint that was made that the case was initially docketed to Hannam J and then heard by Foster J: see key issues 2 to 3 and items 1 to 2, 14 to 15, 31 and 33. Their Honours were the two Family Court judges in the Parramatta Registry at the relevant time. There is nothing unusual about cases being managed by one judge and heard by another judge in the registry. The listing of a trial before a judge other than the judge that has heard the interlocutory issues, or otherwise have managed the case to the point of trial, is not unusual. It is not open to litigants to choose which judge hears a matter. It is not incumbent upon the Court to provide explanations for the determinations as to which judge a case is assigned for hearing.
In the event that a litigant objects to a particular judge hearing a matter, such an objection should be raised with the judge on an application for the judge to recuse themselves. There is nothing in the circumstances raised by the husband in this case that provides a foundation for an inference of apprehended bias or miscarriage of justice on the basis that the case had been dealt with by Hannam J and was then later dealt with by Foster J.
Secondly, the husband claims that the matter was transferred from the Parramatta registry to the Sydney registry on the same day that he sought to have Foster J recuse himself, as set out in ground 11 and items 29 to 33.
As the husband was then seeking to have Foster J recuse himself, the practical result of the transfer of the matter to the Sydney registry was that the applicant received what he was seeking, namely that Foster J would not continue to determine issues involved in the matter and that a different judge would be assigned to the case. I see no basis in this point for any claim of apprehended bias, nor any basis for the claim that this could arguably be the basis for a s 79A application.
Thirdly, the husband makes a complaint, in ground 13, that an administrative officer did not fix a seal to a document. However, no complaint is made that this led to any loss of rights by the husband nor affected the processes of the Court. An administrative error by an officer in the registry that leads to no adverse result for a litigant cannot, in my view, found an application pursuant to s 79A of the Act.
The applicant also complains about the merits of a subpoena decision (item 12), an interlocutory injunction (item 13 and 21), interlocutory funding orders (items 16 to 17), the stay order (item 22 and 28), and costs orders (items 41 and 43). All of these complaints are directed to the merits of the individual orders or decisions and do not found a claim that there was a miscarriage of justice. Each of these interlocutory orders could have been the subject of an appeal. These complaints, it seems to me, are simply complaints about the appropriateness of each determination. These, of themselves, are not grounds for a miscarriage of justice argument.
The argument that the accumulated effect of these orders was to create an unfair trial is not, in my view, borne out on the face of the complaints. The place to air such complaints was the appeal against Foster J's orders and, clearly, significant complaints were aired on the appeal and dealt with by the appeal court in the judgment that is referred to above and for which special leave was refused by the High Court. Complaints about the outcome of a matter generally are clearly outside the ambit of s 79A of the Act. They are issues for appeal process and not for this provision of the Act.
The husband complains at items 51 and 54 about unnecessary costs and delays in the litigation. He provides no particulars of specific events or specific costs in those items although I assume he is referring to the whole course of the litigation. Even if it were the case that the wife had caused unnecessary costs or delays it does not seem to me that that is a basis for a s 79A order to set aside the property settlement orders but rather, is relevant to the discretion of the Court when it comes to determining costs orders and the amount of those costs orders. If it is raised during the currency of the litigation, it might also be the basis for procedural orders to be made to overcome any unnecessary delays or ameliorate unnecessary costs. Again, this does not found an argument under s 79A of the Act.
Looking at this category more generally, it seems to me that none of the matters referred to provide an arguable basis for a claim for relief under s 79A of the Act. Taken together, they demonstrate little more than the length and difficulty of the litigation. I am not persuaded that, when looked at globally, they demonstrate that the husband has reasonable prospects of a case under s 79A of the Act.
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).
To the extent that the sale process was said to be defective or inappropriate, which appears to be raised in items 36 to 40, 42 and the grounds 4 to 5 and 10, the sale itself can no longer be altered as a third party purchased it for value and now the registered proprietor will have good title. If any claim with respect to the process of sale is made out, it would sound against the persons effecting the sale and does not demonstrate a miscarriage of justice with respect to the orders made by Foster J. The events of sale all happened following the orders. The orders were clearly entirely appropriate both with respect to the process for effecting the property settlement and based upon the dismissal of the appeal and refusal of special leave to the High Court appropriate orders for property settlement as between the parties. These matters do not seem to me to form the basis which could lead to the orders being altered under s 79A of the Act.
(3) Explanations and advice received by the husband at trial
This category of matters relates to claims by the husband concerning the conduct of his own counsel, a senior counsel, who was representing him at trial. The matter is set out in the second ground 1 and addressed in item 19. The husband claims that his own counsel threatened to withdraw if the husband instructed him to pursue an application with respect to apprehended bias or exclusion of the wife's solicitor on the basis that she had been formally employed as a registrar at the Court. The issue itself was clearly ventilated on the appeal as set out in the Full Court's reasons. The issue was dismissed by the Full Court on the merits. It seems to me that there cannot be a miscarriage of justice under s 79A of the Act on the basis of a claim that has been fully ventilated and determined against the husband in the Full Court. Such an argument is simply a collateral attack upon the Full Court decision, rather than a claim based upon circumstances unknown at the trial, or at the time of appeal, or circumstances that had arisen since then. In any event, even if the applicant established that he was the subject of duress by his own counsel or other inappropriate conduct by his own lawyers, it seems to me that it is outside the ambit of s 79A of the Act because the point when raised and fully argued before the Full Court was not successful, and, therefore, there was no lost opportunity to the applicant in the sense relevant to s 79A of the Act.
(4) Failure of the wife to make full and frank disclosure
The husband makes complaints about the wife's failure to make full and frank disclosure. These are commonly issues that would be central to a claim under s 79A of the Act. These claims are set out in items 6 to 12, 24 to 25, 44 to 45, and 52 to 53. They are also the subject of the first and third grounds 1 and grounds 2 to 6 and 10. The applicant also makes a fraud allegation based upon the wife's failure to disclose at trial her most recent tax returns. The failure to make disclosure of tax returns and to account for funds in the business were significant issues at the trial, with the trial judge making findings in this regard at paragraphs 50 to 52 of the judgment with respect to the non-disclosure.
These findings were strongly against the wife with Foster J saying:
52The wife has now prepared amended income tax returns but same have not as yet been lodged. There is an inference that they may never be lodged but were prepared for these proceedings only. It is readily apparent from the evidence of her accountant that the wife has still not properly disclosed her income over the years. Income earned by her after separation in 2011 is her after separation income to which the husband has no claim nor can he assert any real contribution by reason of the history discussed above. The wife's oral evidence was seen as evidence of convenience with the wife inventing what she perceived to be answers required to rebut the husband's attack in cross examination. Her own accountants revealed that aspects of her oral evidence were blatantly false.
There does not appear to me to be anything raised by the applicant in his s 79A application that was not known at the time and raised at trial and able to be ventilated therein and, at least, on the appeal. Indeed, he was successful at trial in having the judge draw adverse inferences against the wife with respect to these issues, and they are not new issues. There is not a miscarriage of justice when these issues have been ventilated and are subject of findings by a trial judge.
The husband's suppression of evidence claim is based upon the same circumstances as the fraud claim and the failure of the wife to make full disclosure. It also relies, again, on the wife's evidence about sales through the business, tax invoice anomalies and the like. The same reasoning as applies to the fraud claim applies to this claim.
In short, any failure of the wife to give full and frank disclosure or frank evidence about her finances did not cause a miscarriage of justice in this case as it did not prevent the trial judge from carrying out the task required of him pursuant to s 79 of the Act of considering the assets and financial circumstances of the parties. The lack of disclosure was well known to the trial judge, the subject of findings, and taken into account by him. The husband does not point to any more recent discovery of a lack of disclosure or false evidence. The issues have been ventilated at trial and been the subject of an appeal. I find no basis in these matters for a claim under s 79A of the Act.
(5) Former employment of the wife's solicitor as a registrar of the Court
The husband complains that the wife's solicitor was formerly employed as a registrar of the Court and makes an allegation that the wife's solicitor and counsel took lunch outside of the court building with a then-serving registrar of the Court during the trial - counsel and that registrar being a married couple. These claims were identified in grounds 7 to 9 and 12, key issue 1 and items 2 to 5, 8 to 11, 18 to 20, 23, 26 to 27, 29 to 35, 47 to 50 and 53. There is nothing in the material to suggest any relationship between the wife's solicitor and Foster J. The registrar said to be married to the wife's counsel did not have carriage of the matter when it was being heard by Foster J. There is nothing to suggest that the registrar had any dealings with Foster J concerning the matter when his Honour was hearing the trial.
The mere fact that the particular registrar was working at the courts would not lead to any inference of apprehension of bias or reasonable apprehension of bias on the part of Foster J. It is inevitable that, in a profession such as the legal profession, lawyers will know each other, be friends and many lawyers are married to each other. This, of itself, does not give rise to a reasonable apprehension of bias. Nothing more appears to have been alleged in this case. The issue was dealt with by the Full Court and determined against the husband on the merits. The issue was also ventilated in the High Court, who refused special leave. In my view, this matter cannot form the basis of a claim pursuant to s 79A of the Act, given that it has been argued and dismissed on appeal, in the Full Court and on special leave.
CONCLUSIONS
All of the matters raised in the s 79A application appear to have been ventilated at trial, various interlocutory hearings, or on appeal. To the extent that they have not, they are events that have come to pass since the making of the property settlement orders and, therefore, were not able to indicate a miscarriage of justice in the proceedings before Foster J. None of the individual points appear to me to have any merit.
I have, as counsel for the husband has argued, stepped back and considered the large list of complaints as a whole in order to determine whether or not the overall effect of the concerns of the husband leads to a case with reasonable prospects of success that there may have been a miscarriage of justice in this matter.
The argument seems to be that the accumulated effect of numerous complaints that may have been based on arguable points creates a ground even though each point, when argued, was lost. It does not appear to me that this can form the basis of a claim under s 79A of the Act. It would have the effect of allowing the accumulation of losses or the aggregation of lost points to rise like the phoenix from the ashes and create a point that was successful when none of the lost arguments, individually, had shown any success. Nor am I persuaded that the subjective views of the husband can found a basis for a claim under s 79A of the Act of a miscarriage of justice. Justice is determined on an objective basis, not upon the subjective views of the litigants. Indeed, the test for apprehended bias is also based upon a reasonable person test, not the subjective views of individual litigants.
I am satisfied that the husband has no reasonable prospects of success, nor any reasonable likelihood of success in the s 79A application.
ORDERS DELIVERED
Having summarily dismissed the s 79A application, there is no utility in making a stay order pending its outcome, as it has been dismissed, nor any stay order with respect to the judgment of Foster J or the consequential orders made by the Full Court. I, therefore, dismiss the husband's application for a stay order.
[FURTHER ARGUMENT ENSUED]
Interest Claim by the wife
The wife seeks orders that she be paid interest on the sums due following the sale of the property. This part of her application appears to have been overlooked when it was before the registrar. It comes before me on a review of the registrar. It is uncontroversial in these proceedings that the monies were not paid to her in the usual course due to the conduct of the husband. Section 117B of the Act provides for interest on monies ordered to be paid from the date on which an order takes effect. In this case, the order for the wife to receive her share of the proceeds of sale is an order for the payment of money and it took effect upon the settlement of the sale of the property.
Counsel for the husband did not challenge the proposition that the order was within s 117B of the Act and was unable to point to any fact or circumstances that weighted against the discretion to make an order for interest. In this matter, the wife has been held out of her entitlements as a result of the conduct of the husband. The money she is entitled to receive has remained in a trust account. The wife should, therefore, have interest at the rate prescribed by the rules of court as provided for in s 117B of the Act.
There was no dispute as to the amounts calculated in the wife's outline, which I have adopted. For simplicity, the wife's solicitor sought interest only up to the date of the present judgment if the present judgment were to succeed in finalising the proceedings in this matter. It has done so. The interest as calculated in the outline up to 14 December 2021 comes to $54,562.20 and, as set out in the outline, the daily rate is $253.78. There are three more days from 14 December 2021 until today's date, the date of judgment, which comes to a total of $55,323.54.
ORDERS DELIVERED
In this matter, the amounts payable to the wife by the husband have been quantified by the Full Court in Field & Kingston [2021] FedCFamC1A 66 when ordering:
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.
Various costs orders and interests thereon were ordered to be paid by the husband to the wife by a registrar on 10 November 2021, totalling $4,928. I have set out above the interest payable. On the principle, the sum comes to $55,323.54. The total entitlement of the wife as at today's date is, therefore, $1,588,852.24.
The wife seeks orders to ensure that she is able to direct the trustee who holds the proceeds of the sale of the property of the parties to make payment to her of her entitlements pursuant to the various orders. No submission was made contrary to such a course in the event that the husband's s 79A application was dismissed.
The power to make orders to ensure that the trustee receives a direction that he can act upon is contained in s 106A of the Act. The terms of that section appear to me to require the husband to first be given an opportunity to sign the necessary documents, and if he fails to do so, that the wife would be authorised to sign on his behalf. It appears to me that it is appropriate that the trustee have the benefit of a formal authorisation before a payment is made, as he has a fiduciary obligation to deal appropriately with the moneys. I will, therefore, direct the husband to execute an authority directed to the trustee by 4.00 pm on the next business day which, in this case, is Monday, 20 December 2021. In the event the husband fails to do so, that the wife execute the authority in his name pursuant to s 106A of the Act.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 17 December 2021
3
9
0