Fortnum & Tamplin (No 2)

Case [2022] FedCFamC1F 209

Federal Circuit and Family Court of Australia

(DIVISION 1)

Fortnum & Tamplin (No 2) [2022] FedCFamC1F 209

File number(s): ADC 2365 of 2017
Judgment of: KARI J
Date of judgment: 5 April 2022
Catchwords: FAMILY LAW – enforcement of orders – consequential orders – property – where final orders were made by consent – where each party asserts that each of them have not complied with aspects of the final order – where the parties do not agree on the interpretation of the final order – where the wife has an extant application pursuant to s79A to set aside the final order – court declines to exercise jurisdiction to make any enforcement order and/or consequential order
Legislation:

Family Law Act 1975 (Cth) ss 79, 79A, 80, 105

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.07, Part 11.1
Cases cited:

Branchflower and Branchflower (1980) FLC 90-857).

Cranage & Cranage (1981) FLC 91-039

Duroux v Martin (1993) FLC 92-432

English and English (1986) FLC 91-729

In the Marriage of Ravasini (1983) FLC 91-312

Kaljo and Kaljo (1978) FLC 90-445

King and King (1977) FLC 90-299

McDonald and McDonald (1976) FLC 90-047

McMillan & McMillan [2016] FamCA 387

Molier and Van Wyk (1980) FLC 90-911

Pera & Pera [2008] FamCAFC 87

Ramsey & Ramsey (1983) FLC 91-301

Ramsey & Ramsey (No 2) (1983) FLC 91-323

Slapp & Slapp (1989) FLC 92-022

TaylorvTaylor(1979) FLC 90-674

Wells (Deceased) (by her Legal Personal Representative, Ms M) and Wells [2016] FCWA 45 (21 June 2016)
Division: Division 1 First Instance
Number of paragraphs: 198
Date of last submission/s: 15 March 2022
Date of hearing: 1 March 2022, 15 March 2022 
Place: Adelaide
Solicitor for the Applicant: Culshaw Miller Lawyers
Counsel for the Respondent: Mr Tredrea
Solicitor for the Respondent: Carmen Wood & Associates

ORDERS

ADC 2365 of 2017

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

MR TAMPLIN

Applicant
AND:

MS FORTNUM

Respondent

order made by:

KARI J

DATE OF ORDER:

5 April 2022

THE COURT ORDERS THAT:

1.That the Amended Application in a Proceeding filed by the husband on 16December 2021 and the Response thereto filed by the wife on 17 January 2022 be dismissed.

2.That the proceedings be given an expedited listing for a first day hearing with respect to the wife’s application pursuant to section 79A of the Family Law Act 1975 (Cth) on a date to be advised.

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…

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AGLC
Fortnum & Tamplin (No 2) [2022] FedCFamC1F 209
Case
[2022] FedCFamC1F 209
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with a dispute between Mr Tamplin and Ms Fortnum, who had been married and later separated, regarding the enforcement and interpretation of final orders made in their divorce proceedings. The parties had entered into a consent order on 11 July 2017, which settled their financial relationship and included specific provisions for the transfer of property, payment of a settlement sum, and various other obligations. The parenting arrangements were finalised by separate orders on 4 February 2021. Both parties later alleged non-compliance with the final order and disagreed on its interpretation. Ms Fortnum filed an application to set aside the final order under section 79A of the Family Law Act 1975 (Cth). The court was required to determine whether it should exercise its jurisdiction to make any enforcement or consequential orders given the parties' disputes over the final order's interpretation and compliance.

The court analysed the final order's provisions and considered the parties' submissions and evidence. The court found that the parties' differing interpretations of the final order and their disputes over compliance did not provide a clear basis for making enforcement or consequential orders. The court noted that there was no evidence of significant prejudice to either party as a result of the alleged non-compliance. The court also highlighted that the primary purpose of the final order was to settle the parties' financial relationship, and the court was hesitant to interfere with that settlement unless there was clear evidence of substantial prejudice. Given the lack of consensus on the interpretation of the final order and the absence of demonstrated prejudice, the court declined to make any enforcement or consequential orders. The court did, however, order an expedited hearing for Ms Fortnum's application to set aside the final order.

Orders

Orders of the court

ADC 2365 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TAMPLIN

Applicant

AND:

MS FORTNUM

Respondent

order made by:

KARI J

DATE OF ORDER:

5 April 2022

THE COURT ORDERS THAT:

1. That the Amended Application in a Proceeding filed by the husband on 16December 2021 and the Response thereto filed by the wife on 17 January 2022 be dismissed.

2. That the proceedings be given an expedited listing for a first day hearing with respect to the wife’s application pursuant to section 79A of the Family Law Act 1975 (Cth) on a date to be advised.

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.

Background

Background to the litigation

The shorty history of the parties and their relationship is as follows:(a)The husband was born in 1977 and he is 44 years of age. The husband is a finance professional.(b)The wife was born in 1968 and she is aged 53 years. The wife is engaged with home duties. (c)The parties commenced cohabitation on 29 July 2009.(d)The parties married in 2016.(e)There are two children of the marriage:(i)X born in 2010 aged 11 years; and(ii)Y born in 2013 aged 9 years.(f)The parties separated in late 2016 bringing an end to their 7 year relationship.BACKground to the final orderS The wife initiated proceedings in the Federal Circuit Court of Australia seeking property settlement and parenting orders on 9 June 2017. The court understands that in the lead up to the wife instituting proceedings, the parties were engaged in an unsuccessful collaborative law dispute resolution process involving legal representatives for each of the parties, a forensic accountant and an independent expert focussed on parenting issues. It is against that background that at the first hearing in the matter on 11 July 2017, the parties invited the court to make a final order determining all aspects of their financial relationship. In particular, the final order that was made on 11 July 2017 finalised both property settlement and spousal maintenance obligations between the parties. Contemporaneously and annexed to the final order is a copy of a Binding Child Support Agreement signed by the husband on 6 July 2017 and by the wife on 11 July 2017. The Binding Child Support Agreement detailed the husband’s obligation for the payment of periodic child support in accordance with an administrative assessment, together with non-periodic child support in the form of the children’s private school fees and associated expenses, private health insurance and gap medical, dental, orthodontic and health care expenses. While the parties were able to amicably resolve the financial aspects flowing from the breakdown of their marriage, they were unable to resolve their competing parenting applications. It is apparent on any objective observation of the matter that the parenting proceedings became protracted. Ultimately the parenting proceedings were finalised by orders made by Judge Cole on 4 February 2021 (“the final parenting order”), at the conclusion of a 7 day trial that spanned a period of time in excess of one year. The court has had regard to the reasons delivered by Judge Cole on 4 February 2021 to the extent that they are relevant to the present issues in dispute. Pursuant to the final parenting order the children live with the mother and spend time with the father during the school term from the conclusion of school Friday until the commencement of school Thursday each alternate week, together with half of the school holidays and a sharing of special occasions.the terms of the final order made 11 July 2017 Given the disputation that has arisen in relation to the final order, it is important to understand the terms in their entirety.1.In full settlement of any claim which either party may have for settlement of property or alteration of interests in property: -1.1 That on or before 30 June 2018 (“the settlement date”) the wife do transfer to the husband her interest in the property situated at and known as [D Street, Suburb B] being the whole of the land comprised and described in Certificate of Title Register Book Volume […] Folio […] (hereinafter referred to as “the [Suburb B] property)”.1.2 That contemporaneously with paragraph 1.1 herein the husband do discharge Memorandum of Mortgage Numbers […] relating to the [Suburb B] property.1.3 On the settlement date the wife shall tender a duly executed Withdrawal of Caveat No. […] registered over the [Suburb B] property and shall pay the registration fee with respect to such withdrawal.1.4 That pending the settlement date the wife be restrained and an injunction be granted restraining her from selling, further mortgaging, encumbering or in any other way dealing with the [Suburb B] property.1.5 That in the event that the property is not already sold as at the date of the making of these Orders then the property situated at and known as [E Street, Town F], New South Wales, being the whole of the land comprised and described in Certificate of Title Register Book Folio […] (hereinafter referred to as “the [Town F] property”) be placed on the market forthwith and be offered for sale by public auction or private treaty as the parties may agree (and in the absence of agreement as may be determined by the President of the Real Estate institute of New South Wales) with the reserve price to be agreed between the parties and in the absence of agreement as determined by the agent.1.6 That the net proceeds of sale of the [Town F] property be paid down in reduction of the mortgage on the [Suburb B] property.1.7 That within 60 days of the date of this Order the husband do pay to the wife the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000) (“the settlement sum”) to Denise M Rieniets & Associates Trust Account on behalf of the wife.1.8 That, pending the settlement date the husband do make all instalments of principal and interest pursuant to Memorandum of Mortgage Numbers […] relating to the [Suburb B] property and […] relating to the [Town F] properties (“the mortgages”) and do pay all rates, taxes and other outgoings with respect to the [Suburb B] and [Town F] properties and do keep the said properties in good order and repair.1.9 That, pending the settlement date and the sale of the [Town F] property the husband do have sole and exclusive occupancy of the [Suburb B] and [Town F] properties to the detriment of the wife.1.10 That in default of payment of the settlement sum by the settlement date the husband do pay interest on any unpaid balance at the rate of 8.75% per centum per annum and should such default continue for a period of more than three calendar months then the [Suburb B], [Suburb G] and [Town F] properties shall be sold and the net proceeds of sale thereof shall be divided as to the settlement sum to the wife together with all interest accrued thereon and the costs of and incidental to any application to this Honourable Court for sale of the said property and as to the balance thereof to the husband.1.11 That the husband, in his capacity as the director and shareholder of the [H Pty Ltd], do cause the company to pay to wife an annual salary of $50,000 gross (and superannuation), on a pro rata basis, until 31 December 2017.1.12 That the husband do indemnify the wife and keep her forever indemnified with respect to all monies owed pursuant to the loan agreement with [Ms J] dated 20 January 2016.1.13 That on or before the settlement date the wife do produce to the husband [Motor Vehicle 1]. 1.14 That contemporaneously with paragraph 1.12 herein the husband do transfer to the wife for her sole use and benefit an unencumbered [Motor Vehicle 2] with no more than 90,000 km on the speedometer. 1.15 That within 30 days of the date of this Order the wife do produce to the husband the following items:-1.15.1 His 3 pruners:1.15.2 His share of assorted pots and plants;1.15.3 His tennis racquet and tennis ball supply;1.15.4 Hus [sic] Christmas decorations;1.15.5 The Fire pots;1.15.6 The large white marquee1.15.7 His CD collection; and1.15.8 Two of five sporting memorabilia chattels1.16 That henceforth the real property and all personalty in the possession of the husband including but not limited to the following:-1.16.1His interest in the company [H Pty Ltd], the Family Trust and [Company K];1.16.2His [Motor Vehicle 3] Reg no […];1.16.3His savings; 1.16.4His business interests;1.16.5His superannuation entitlements;1.16.6His long service leave entitlements and life insurances; 1.16.7Any shares and investments in his name; 1.16.8Any furniture, furnishings and effects in the possession of the husband shall vest absolutely in the husband free of all further claim or demand or right or entitlement of the wife.1.17 That henceforth the real property and all personalty in the possession of the wife including but not limited to the following:-1.17.1 Her savings; 1.17.2 Her superannuation entitlements; 1.17.3 Her long service leave entitlements and life insurances; 1.17.4 Any shares and investments in her name; 1.17.5Any furniture, furnishings and effects in the possession of the wife; shall vest absolutely in the wife free of all further claim or demand or right or entitlement of the husband.1.18 That on the settlement date the parties shall cause to be rolled over the whole of the wife’s entitlement in the [Superannuation Fund 1] as at 30 June 2016 (being an amount of ONE HUNDRED AND FIFTY-SEVEN THOUSAND AND THREE HUNDRED AND TWENTY NINE DOLLARS ($157,329)) to a superannuation fund of the wife’s choice.1.19 That contemporaneously with transfer of the whole of the wife’s entitlements pursuant to paragraph 1.18 herein the wife shall forfeit (to the husband) any interest she may have both at law and equity in the [Superannuation Fund 1].1.20 That contemporaneously with transfer of the whole of the wife’s entitlements pursuant to paragraph 1.18 herein the wife shall resign from any position which she may hold in [Company L].1.20.1The wife shall on the settlement date transfer all her shares and entitlements in [Company L] to the husband or his nominee or nominees.1.20.2The husband shall indemnify the wife in relation to any or all liabilities either past, present or future including without limiting the generality of the foregoing any past, present or future income tax liability of the wife and/or the husband arising out of [Company L] of or the wife’s position in [Company L] or the husband’s position in [Company L].1.20.3The wife shall hereafter have no further claim against the husband in relation to [Company L] or against [Company L] in relation to the assets of [Company L] or any monetary entitlement the husband may have in [Company L] including without limiting the generality of the foregoing any loan account of the husband or the wife in [Company L] or as to wages, dividends, long-service leave or otherwise either past, present or in the future and any such monetary entitlement of the wife shall vest in the husband.1.20.4That prior to the resignation of the wife as director of [Company L], the husband shall do all such acts as shall be necessary and shall vote in favour of any resolution which may be necessary, to cause [Company L] to be converted to a single director company pursuant to the Corporations Law.1.21 With respect to any Capital Gains Taxation (“CGT”) liability:-1.21.1The husband do pay any CGT due and payable which may arise as a result of any capital gains from the sale of the [Suburb B] and [Town F] properties; 1.21.2That the husband and the wife do all things necessary to ensure that any CGT payable from the sale of the [Suburb B] and [Town F] properties are minimised.1.22 That otherwise each party shall be responsible for their own taxation liabilities. 1.23 That it be a condition of these Orders that if either party shall refuse or neglect to execute any Memorandum of Transfer or any other document necessary to give effect to the terms hereof in the proper form within seven days after the same shall have been tendered to that party by or on behalf of the other party then in such case a Registrar or Deputy Registrar of the Family Court of Australia, upon proof by affidavit of such refusal or neglect, is hereby appointed to execute and if in his or her opinion it shall be necessary to do so, to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect hereto.1.24 That each party shall do all such acts and things and sign all such necessary documents to give effect to the terms of this order.1.25 That each party shall pay their own costs of and incidental to these proceedings but the transferee in each case shall pay the cost and disbursements of and incidental to any transfer to give effect to the terms of this order.2.That pursuant to Section 72 of the Family Law Act 1975 (as amended) the husband shall pay maintenance to the wife as follows, commencing 1 January 2018:-2.1 The amount of ONE THOUSAND SIX HUNDRED AND SIXTY-SIX DOLLARS ($1,666) on the first day of each month, or the next business if the first day is a weekend, with a completion date of 31 December 2021. 2.2 On each anniversary of this Order the payment will be increased by the all groups average Consumer Price Index.3.That the husband do retain the wife under the family private health insurance policy until 31 December 2021 and do pay the premium thereof at the current table and level of cover, with such payments to be made directly to the private insurance company membership no. […] as and when those payments fall due.4.That pending the settlement date the wife be restrained and an injunction be granted restraining her from “Warning” or taking any other action to remove any Caveat registered over the [Suburb B] property by [Mr M].5.Liberty to either party to apply for consequential orders on giving short notice.history of the litigation concerning financial issues

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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