Fortnum & Tamplin

[2022] FedCFamC1F 39

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fortnum & Tamplin [2022] FedCFamC1F 39  

File number(s):	ADC 2365 of 2017
Judgment of:	KARI J
Date of judgment:	1 February 2022
Catchwords:	FAMILY LAW – ENFORCEMENT OF ORDERS – Application by the wife for the enforcement of property orders – where the wife seeks the sale of real property – where the wife’s application fails to specify the extent of the default and the quantum arising from default – where the husband is given 21 days to remedy the quantified spousal maintenance arrears and periodic and non-periodic child support arrears – husband and wife’s applications adjourned pending outcome of husband’s compliance or non-compliance with orders
Legislation:	Family Law Act 1975 (Cth) s79A
Division:	Division 1 First Instance
Number of paragraphs:	36
Date of hearing:	1 February 2022
Place:	Adelaide
Solicitor for the First Applicant:	Carmen Wood & Associates
Counsel for the First Applicant:	Mr Tredrea
Solicitor for the First Respondent:	Mr Culshaw of Culshaw Miller Lawyers

ORDERS

ADC 2365 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FORTNUM

Applicant

AND:

MR TAMPLIN

Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	1 FEBRUARY 2022

THE COURT ORDERS:

1.That no later than 4.00pm on 22 February 2022 the Respondent do pay the sum of $93,415.37 $93,460.37 as follows:

(a)The sum of $29,627.76 to C School;

(b)The sum of $14,972.95 to B Organisation;

(c)The sum of $48,859.66 to B Organisation.

2.That the Amended Application in a Proceeding filed on 16 December 2021 and a Response to an Application in a Proceeding filed on 17 January 2022 be listed for continuation of hearing on 1 March 2022 at 2.15pm (half day allowed).

3.That no later than 4.00pm on 15 February 2022 the parties each be at liberty to file one further Affidavit in support of their competing applications.

THE COURT NOTES THAT:

A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 Fortnum & Tamplin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

KARI J

1. This matter comes before me today in relation to financial matters between the parties. 

2. The proceedings have a very long life before the Family Law Courts, having been in the Federal Circuit Court since the wife commenced proceedings on or about 9 June 2017. I am cognisant that both financial issues and parenting applications have been live before the court over the duration of the proceedings. 

3. I am conscious that parenting issues were finalised following a contested hearing heard by Judge Cole in the Federal Circuit Court, who delivered his reasons on 4 February 2021.  I do not propose to comment further about the parenting proceedings today, other than to note that I have read his Honour’s decision. 

4. So far as financial proceedings are concerned, they have had what can only be described as a difficult trajectory before the court.  I am conscious that the parties agreed to a Final Order resolving the question of property settlement together with child support, pursuant to a Binding Child Support Agreement.  Orders were made by consent, finalising financial matters on 11 July 2017.  Almost immediately thereafter, the wife raised concerns with the husband’s compliance with those final orders. Indeed, as early as 4 September 2017, she filed an Application in a Case seeking various orders as and by way of enforcement of the final order. 

5. Between then and now, numerous applications have been filed by the wife in order to have the husband comply with the various obligations created by the final orders.  For reasons which are opaque to me, those applications have not ever proceeded to a meaningful full hearing.  I do however acknowledge that along the way, various orders have been made in the matter by consent of the parties to deal with various aspects of the husband’s default of the obligations created by the final orders.  Be that as it may, as the parties sit before the court today, there is agreement that the husband remains in default of various aspects of the final orders first made on 11 July 2017. 

6. Principally, the husband remains in default of an obligation created pursuant to paragraph 2 of that final order to make payments as and by way of spousal maintenance to the wife for a period commencing 1 January 2018 and ending on 31 December 2021. 

7. In addition, the parties agree that the husband is also in default of obligations created pursuant to the Binding Child Support Agreement entered into by the parties to make payments both as and by way of periodic child support in accordance with a child support administrative assessment, and in addition, as and by way of non-periodic payments, principally, for present purposes, as and by way of the payment of the children’s private school fees at C School. 

8. What is not clear to me with any level of specificity, today is the level and quantum of the husband’s additional default pursuant to the obligations created by the final order. 

9. I am cognisant that at the wife’s end, she asserts that the husband remains in default of various additional obligations.  The extent of that default may well be in terms of an amount, a very, very significant amount.  However, because of the way the parties’ documents have been put before the court, it is not clear to me today exactly what amounts remain extant from the wife’s position, save and except those amounts which have been crystallised in relation to spousal maintenance and child support, to which I have earlier referred. 

10. The present applications before the court have arisen in circumstances where the proceedings were transferred to this court on 6 August 2021.  On the transfer of the matter, the matter was dealt with originally by a Registrar. Following my appointment to this court, I listed the matter before me to a case management hearing on 9 November 2021. 

11. At that hearing, I made it clear to the parties that the trajectory of the matter before the court was a matter that was concerning me for a range of reasons.  One of the concerns that I had at that point was that because of the significant passage of time, it was not clear to me which interlocutory applications were still being pursued by each of the parties. 

12. As a consequence and by consent, the parties agreed that I discharge all extant interlocutory applications and that they each thereafter file whatever further applications as and by way of interlocutory orders they each sought to agitate. 

13. The other thing that has occurred in the passage of time between the making of the final order and present day is that the wife has now also made an application pursuant to section 79A of the Family Law Act 1975 (Cth), seeking to vary and/or discharge the final orders that were made. That application remains extant and will need to be listed for final hearing at some point.

14. In terms of today’s hearing, the applications that are live before the court are those which the parties filed as a consequence of the orders that I made on 9 November and recalibrated at a further hearing on 13 December 2021. That hearing on 13 December 2021 relating to issues which are not relevant for today’s purposes. 

15. The applications which are before the court now are therefore those contained in the Amended Application in a Proceeding filed by the husband on 16 December 2021, and the Response to the Application in a Proceeding filed by the wife on 17 January 2022. 

16. In essence, the wife’s position is that despite her application pursuant to section 79A, and by way of interlocutory relief, she seeks orders as and by way of enforcement of the original final order. The interlocutory orders that the wife seeks principally includes an order that a property at Suburb B be sold in order to remedy the husband’s longstanding default.

17. From the husband’s perspective, his position is that he maintains, both on an interim basis and in response to the section 79A application, that the original final orders be maintained.

18. While the husband acknowledges his default in relation to some aspects of the final order, principally, his obligation to pay spousal maintenance, together with a default of his obligations pursuant to the Binding Child Support Agreement, he otherwise assets that the final orders should be given full force and effect. To do so from the husband’s perspective would include an order for the transfer of the Suburb B property from the wife to him. 

19. While not relevant for today’s purposes, but possibly ultimately relevant when I finally determine the interlocutory applications, is that the husband ultimately proposes to sell the Suburb B property, either in whole or in part.  However, it is not clear to me on a reading of the material at the present what his position actually is in that regard. 

20. What is obvious to me from the material that is before the court and from a reading of Judge Cole’s reasons delivered in relation to the parenting proceedings, is that these parties have very little trust for each other. 

21. During the course of the hearing today, I have attempted to understand with some specificity exactly what the additional amounts and the quantum of the default the wife asserts in relation to the final orders – leaving aside the quantified amounts identified in relation to spousal maintenance and child support. 

22. In terms of the amounts that have been able to be quantified, I am conscious that those amounts are agreed at the present to be the following amounts:

    (a)an amount of $48,859.66 as and by way of spousal maintenance arrears as arising pursuant to paragraph 2 of the final order; and

    (b)so far as child support is concerned, presently owing is an amount of $14,972.95 as and by way of periodic spousal maintenance arising from an administrative assessment of child support as provided for in the Binding Child Support Agreement, together with an amount of $29,627.76 arising again pursuant to the Binding Child Support Agreement, but relating to non-periodic child support by way of the children’s private school tuition fees at C School. 

23. I am also conscious that in addition to those amounts, the wife asserts that the child support agency has calculated a further amount which is due and owing by the husband on or about 7 March 2022 in the amount of $25,000.  I do not have evidence of that amount before me at the present, but they are matters which I expect will be put before the court prior to this hearing resuming. 

24. Unfortunately, because of the way in which the parties’ documents have been prepared, other than those three amounts which have been able to be quantified, it is not clear to me exactly what the other amounts the wife alleges the husband owes pursuant to the final orders. 

25. From my perspective, that is a significant piece of evidence that I require if I am to take the step that the wife asks the court to take for the Suburb B property to be sold. 

26. In those circumstances, I have proposed to the parties a path forward in terms of a bifurcation of today’s hearing.  That is that the husband be given a chance to remedy within 21 days those amounts which are readily quantifiable today, being the three amounts to which I have identified, being spousal maintenance and the two child support amounts arising from the Binding Child Support Agreement. 

27. That is a path that the husband has been willing to take up. 

28. From the wife’s perspective, while she does not necessarily overtly oppose that course, she does not consent to it either. 

29. From my perspective, as I have already identified, if the husband was to remedy that default, then the question of any other default and the quantum of that default becomes pertinent to whether I take up the wife’s application and the orders that she seeks that the Suburb B property be sold as and by way of enforcement of the final order. 

30. I do however acknowledge that at this juncture I am putting the matter a little simply, because I am conscious that the wife’s position is that even if the husband remedies his default in relation to spousal maintenance and child support, her position remains that the Suburb B property be sold. 

31. That is not an argument that I propose to hear today, particularly given the concerns I have raised in relation to the court being clear as to the extent of the husband’s default pursuant to the balance of the final orders, and the quantum of that default.  While I accept that that is not the only basis upon which the wife asserts that the Suburb B property be sold. 

32. For all of those reasons, it is my view that today’s hearing be bifurcated and part-heard. 

33. I propose to make an order today obliging the husband to remedy the default of the three quantifiable amounts within 21 days. 

34. I then propose to bring the matter back within short compass of that date for a full hearing in relation to the balance of the competing applications of the parties for either the sale of the Suburb B property as promoted by the wife and the consequential orders that she seeks in that regard, or a transfer of the Suburb B property as agitated by the husband, and the consequential orders that he seeks in that regard. 

35. For all of those reasons, I make the following orders. 

36. NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.

Associate:

Dated:       9 February 2022