Filmer & Filmer (No 2)

[2012] FamCA 830

FAMILY COURT OF AUSTRALIA

FILMER & FILMER (NO. 2) [2012] FamCA 830

FAMILY LAW – ORDERS – application by the wife seeking enforcement of previous orders that the husband pay spousal maintenance and other expenses – where the husband concedes that he is in breach of court orders – where the wife’s application fails to specify the kind of enforcement she seeks – where the Court declined to make the orders sought by the wife on the basis that they were inappropriate form – application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 20.05 & 20.08

APPLICANT: Ms Filmer

RESPONDENT: Mr Filmer

FILE NUMBER: ADC 3244 of 2010

DATE DELIVERED: 14 September 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: David Burrell

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Howe Martin & Associates

Orders

1. The wife’s Application in a Case filed on 4 September 2012 is dismissed.

2. Both parties’ costs of today’s application are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Filmer & Filmer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3244 of 2010

Ms Filmer

Applicant

And

Mr Filmer

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an Application in a Case which is brought by the wife, filed on 4 September 2012.  I have before me now the affidavit of the wife in support of that application and the affidavit and annexures of the husband received this morning.  I did not receive further documents requested by counsel of the husband orally to be tendered to Court because of the very nature of the matter by way of an interim hearing and the difficulty in providing adequate procedural fairness to the wife in relation to documents needing to be considered at such short notice and in the presence of the Court.

2. The interim matters need to be seen in the context and history of the proceedings between the parties, in particular the order that was made by consent on 21 December 2011 providing for spousal maintenance in the sum of $1,000 per week and the payment of certain outgoings and accounts by the husband (being the wife’s outgoings and accounts).

3. That matter was the subject of an application which came on before me very recently.  On 28 August 2012, after hearing the application, the husband’s and wife’s applications were adjourned to 3 December 2012 to allow further consideration of any changes which might then have occurred primarily due to the proposed sale of a large number of assets which would bring about the repayment of a large number of debts.

4. During the period of the adjournment the orders which were then in place were continued.  The matter now comes on before me by way of Application in a Case filed by the wife in which she seeks in paragraph 2:

   (2)That by way of enforcement, the husband do pay to the wife the sum of $3000 in spousal maintenance arrears (which sum calculated to Friday 7 September 2012);

   (3)That in addition to 2, the husband do pay such further or other sums of spousal maintenance that may be outstanding to the wife as at the time of hearing this application.

5. Paragraph (4) relates to reimbursement of costs of reconnection fees and expenses brought about by the husband’s alleged behaviour in breaching the orders by terminating the facilities which were then available to the wife.  This cannot be denied as it is clearly set out that the husband has done that when he sent the information to the wife recently informing her that he had done so.

6. There is also paragraph (5) seeking an order that the husband pay specific expenses including rates, taxes, power and other insurances. 

7. Paragraph (6) is “that the orders of 21 December 2011 do otherwise continue in full force and effect during the period of the adjournment”.  I have already made that order.

8. The first thing that needs to be considered is the appropriateness of the orders sought by the wife in paragraphs (2) and (3) which are described to be “by way of enforcement”.  Counsel has drawn attention to Chapter 20 of the Rules which deals with enforcement of financial orders and obligations.  The maintenance order is clearly a financial obligation which is capable of being enforced under the Chapter.  However, the provisions of that rule say in Rule 20.08:

   (1) An enforcement order must state:

   (a) the kind of enforcement order it is (see rule 20.05);

   (b) the full name and address for service of the payee;

   (d)the full name and address of the payer; and

   (e)the total amount to be paid.

9. These are Rules which of their very nature can be varied by the Court in appropriate circumstances, but the difficulty I have with the wife’s application is that it does not specify the kind of enforcement as required by the rules.  Rule 20.05 says that an obligation to pay money may be enforced “by one or more of the following enforcement orders”.  It then lists the “sale, seizure of real property, attachment of earnings and debts, the sequestration of property or an order appointing a receiver or a receiver and manager”.  It is a discretion that the Court may exercise.  It has been put to me that that does not necessarily mean that the Court cannot make any other order by way of enforcement.

10. However, the difficulty in this case is that there would be little point in making an order, described as an enforcement order, because there is no type of enforcement being suggested.  The Court clearly has already made an order which sets out that the husband is required to make the payments set out in the December 2011 order.  It appears on his own admission he is now in breach of that order.  He has failed to comply with the Court order which as recently as 28 August 2012 and notwithstanding his application, it was directed that the current orders were to remain in place.

11. The Court can therefore make it quite clear on the transcript, that the husband is now in arrears of the orders that were made in that he has on the face of the documents admitted that he has not paid the sum of $4000 by way of spousal maintenance and that the sum of $4000 is now payable to the wife pursuant to the orders for spousal maintenance.

12. I therefore decline to make the orders sought by the wife in paragraphs (2) and (3) as they are inappropriate orders.  I do that on the basis of clearly acknowledging that the husband is in arrears of the spouse maintenance orders and that any proper enforcement would be considered when that type of enforcement is identified.

13. In relation to paragraph (4), “that the husband reimburse the wife for the cost of any reconnection fee she has paid and any expenses associated with the accounts listed in paragraph (1)(c) of the orders that the wife has caused to pay due to the husband’s breach”. 

14. Again, there are no specific details of the amounts to be paid and it is not an order in general terms that would assist the parties.  Therefore, in that regard I acknowledge that the husband was ordered to pay the amounts in the order of 21 December 2011.  In due course, once the amounts are identified and the clear circumstances are identified, it would be highly likely that the husband’s behaviour in determining those associated entities (such as electricity and other services) will be taken into account and the appropriate order made.  However, at this stage, it is not appropriate to make an order in such general terms. 

15. As to paragraph (5) of the Application in a Case, the orders are in similar terms to the orders that were already made on 21 December 2011 and which have been continued by the orders of 28 August 2012.  Therefore I do not consider they are necessary.

16. Paragraph (6) is that the orders of 21 December 2011 do otherwise continue in full force and effect during the period of the adjournment.  The orders of 28 August 2012 already provided for that. 

17. The affidavit material received from the husband today, sets out total income to pay living expenses and loan interest as at 30 June 2012, or during that year, of $313,000 which the husband then describes “as there is only just enough net income to meet the interest only payments and not sufficient income to make any capital repayment”.  He also refers in his affidavit to his practice of paying his own outstanding expenses.  The affidavit confirms that he recently spent in excess of $22,000 on an overseas trip of which his defacto wife provided $5000.

18. There are significant issues then to be determined as to the amount of income, the use of that income and the available assets and financial resources of the parties, which are appropriate to be determined at the proper hearing which is now set down set down for 3 December 2012.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 September 2012.

Associate: 

Date:  2 October 2012