Fortnum & Tamplin (No 2)
[2022] FedCFamC1F 209
•5 April 2022
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 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
introduction
These proceedings relate to issues flowing from a final order for property settlement made on 11 July 2017 (“the final order”).
It is uncontroversial that since the making of the final order, certain provisions were not complied with.
The competing interlocutory applications before the court each appear to be seeking orders to enforce different provisions in the final order.
Overlaying those competing applications, is an extant application made by the wife for the final order to be set aside. That application will need to be listed for final hearing. However its existence is germane to the current dispute.
These reasons deal with the parties competing interlocutory applications so far as they relate to the provisions of the final order.
shorty history of the parties
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 marquee
1.15.7 His CD collection; and
1.15.8 Two of five sporting memorabilia chattels
1.16 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
It is necessary to summarise the litigation history of this matter following the making of the final order on 11 July 2017.
Problems arose from the wife’s perspective almost immediately after the making of the final order.
Consequently, on 4 September 2017 the wife filed an Application in a Case seeking the enforcement of the property orders (“the wife’s first application”).
By that application the wife sought orders in the following terms:
(1)That the Court enforces the following orders which were made by the Honourable Judge Cole on 11 July 2017 at Adelaide as follows:
(2)Order 1.11 of the Orders which state that “the husband, in his capacity as director and shareholder of the [H Pty Ltd], do cause the company to pay the wife an annual salary of $50,000 gross (and superannuation), on a pro rata basis, until 31 December 2017”;
(3)Order 1.8 of the Orders, which states “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.”; and
(4)Order 3 of the Orders, which states 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”.
(5)To enforce the above Orders outlined at 2, 3 and 4, that seizure is made of the respondent husband’s personal property.
(6)That the respondent husband pay the applicant wife’s costs of this application.
That first application was given a return date of 5 September 2017, which appears to have been a pre-existing date listed to deal with parenting issues. Alongside the parenting orders made at the hearing on 5 September 2017, orders were made directing the husband to file responding documents directed to the first application and thereafter the first application was listed to a contested hearing on 5 December 2017 with a time allocation of thirty minutes.
However, before the wife’s first application was determined and on 24 November 2017, the wife filed two further applications, namely a Contravention Application and a Contempt Application. Both of those applications were listed for “directions only” to the existing hearing of the first application on 5 December 2017.
By her Contravention Application the wife pleaded 4 separate breaches of the final order, with reference to paragraphs 1.7, 1.8, 1.11 and paragraph 3.
By her Contempt Application the wife simply pleaded that “the respondent failed to comply with the orders made by the court on 7 July 2017 in relation to property. This has been a deliberate breach in flagrant disregard of the court’s orders.”
Leaving to one side the procedural irregularities as to the way in which the wife attempted to deal with the matter, it is apparent however that all three applications extant at that point in time (the wife’s first application, the contravention application and the contempt application) were all directed to remedying what the wife alleged were the husband’s breaches of the final orders that provided for:
(a)The payment to her of the settlement sum of $200,000 which pursuant to paragraph 1.7 of the final order was to have been paid by 11 September 2017, noting that this was not pleaded in her first application as the default had not arisen at the point in time of the filing of the first application.
(b)The payment of instalments of principal and interest pursuant to two mortgages, together with the payment of “rates, taxes and other outgoings” with respect to each the properties at Suburb B and a property at Town F, arising pursuant to paragraph 1.8 of the final order.
(c)That the husband in his capacity as the director and shareholder of H Pty Ltd, make a payment to the wife as provided for in paragraph 1.8 of the final order, in the amount of “$50,000 gross (and superannuation), on a pro rata basis, until 31 December 2017.”
(d)That the husband retain the wife under the “private family health insurance policy until 31 December 2021 and do pay the premiums thereof… as and when those payments fall due” pursuant to paragraph 3 of the final order.
When the three extant applications came before the court on 5 December 2017, the court made orders pursuant to a manuscript minute of order presumably presented at the hearing, in the following terms:
(7)On or before 31 January 2018 the husband shall pay the sum of $50,000 to the wife’s solicitors trust account for and on behalf of the wife together with interest as follows:
(a) $287.64; and
(b)The interest calculated from the date of default until the date of payment referred to herein.
(8)On or before 30 March 2018, the husband shall pay the sum of $50,000 to the wife’s solicitors trust account for and on behalf of the wife. Together with the interest calculated from the date of the default until the date of payment.
(9)The parties and their solicitors and Counsel attend a without prejudice conference in or around February 2018.
(10)The Order made 5 September 2017 do continue.
The court does not have the benefit of the transcript or any reasons delivered in relation to the orders that were made on 5 December 2017. Accordingly, it is unclear as to what parts of the final order the orders made on 5 December 2017 were intended to rectify.
In addition:
(a)It does not appear that the three applications before the court that day were otherwise dismissed; and
(b)It is not clear as to what future date those extant applications were thereafter to be dealt with by the court.
On 15 March 2018 the wife filed another Application in a Case (“the wife’s second application”), which was given a hearing date of 23 March 2018. By that application, the wife sought not only an urgent hearing, but also the following orders:
(2)That the respondent husband be restrained, and an injunction hereby ordered restraining him from:
(a) Executing the sale of his business; and
(b)Disbursing any sums following the sale of the business to secure the settlement sums already ordered by this Honourable Court.
(3)That the respondent husband pays the applicant wife’s costs of and ancillary to this application on an indemnity basis.
With regard to the affidavit filed by the wife in support of the second application, it appears that:
(a)The wife had concerns that the husband was “about to sell his company ‘[H Pty Ltd]’ (the Business) and have genuine concerns that the proceeds from the sale of the Business will be funnelled into the Husband’s overseas business ventures.” [1]
(b)The wife was making a complaint about the husband having only paid $30,000 of the $50,000 ordered on 5 December 2017 (presumably in reference to paragraph 1(a) of that order, given the payment owing pursuant to paragraph 2 of that order was not due and payable at that time).
(c)The wife continued her complaints raised in all three of her earlier applications as to the husband’s non-compliance with paragraph 1.8 and paragraph 3 of the final order.
[1] Affidavit filed by the wife on 15 March 2018, paragraph 4.
The husband filed an affidavit on 21 March 2018. In that affidavit he variously deposed:
(a)That he was unable to make all of the payments to the wife provided for in the orders of 7 December 2017;
(b)That he had paid the wife a sum of $130,000;
(c)That he had paid $174,000 towards the outstanding mortgages, but there were still $30,000 in arrears owing;
(d)That in circumstances where he was unable to borrow funds to meet extant liabilities he had made a decision to sell his H Pty Ltd business;
(e)That he had been unable to maintain the wife on the private family health policy, but that he had agreed to reimburse the wife for the policy premiums she had paid and would become owing in the future for her to maintain her own private health insurance;
(f)That from his perspective there were ongoing issues relating to the payment of outgoings for the Suburb B and Town F properties, ostensibly stemming from the wife’s conduct, including her failure to pass on invoices rendered in her sole name.
At the hearing on 23 March 2018 in relation to the wife’s second application, the court made an order with the mutual consent of the parties in the following terms:
(1)That the husband shall pay to the wife the following sums from the proceeds of sale of the husband’s business ‘[H Pty Ltd]’ in priority to any other liabilities the husband or business may have as follows:
(a)The sum of $70,000 to the wife, plus interest at a rate of 8.75% on the sum of $70,000, pursuant to the orders made on 11 July 2017 and 5 December 2017;
(b)The sum of $13.698.56 in satisfaction of the husband’s obligation to pay the wife’s [private insurance] policy premium and the funds will be paid to the wife’s solicitors trust account and the solicitors will ensure that those funds are used in satisfaction of the Orders made on 11 July 2017 and thereafter paragraph 3 of the Orders made on 11 July 2017 shall be discharged.
(2)The husband is restrained and an injunction is granted restraining him from accessing, spending, encumbering or in any way dealing with the proceeds of sale of his business ‘[H Pty Ltd]’ in a manner inconsistent with the terms of this Order.
(3)The husband shall require his solicitors for the sale of the business ‘[N Lawyers]’ to retain in trust the sum of $19,623.00 from the proceeds of the sale of ‘[H Pty Ltd]’ pending further Order.
(4)That the question of the wife’s costs of and incidental to this application be reserved.
(5)The wife shall advise the husband not less than 14 days prior to any change of the private health insurance wherein the children would no longer be covered.
(6)That all outstanding applications be adjourned for directions to 3 April 2018 at 9.30am.
(7)The Application in a Case is otherwise dismissed.
On 22 June 2018, orders were made listing the matter for a three day trial commencing 2 April 2019. It is not clear on the face of that order whether the court intended to only deal with parenting arrangements at the final hearing or whether the final hearing was intended to include the extant first application, contravention and contempt applications filed by the wife.
On 11 July 2018 the wife filed another Application in a Case (“the wife’s third application”), which was given a hearing date of 21 August 2018. That application raised both parenting and financial issues. The orders sought by the wife that were directed to financial issues were in the following terms:
(3)That the enforcement, contempt and contravention applications be listed for final hearing.
(4)That the husband make further payment in the sum of $6,230.78 in relation to additional costs incurred with respect to the [Suburb B] and [Town F] properties to the wife’s solicitors trust account.
(5)That in default of the payment of $13,698.56 to satisfy the [private insurance] policy premium, the husband do pay an additional sum of $6,141.04.
(6)That the husband pay the wife’s costs of and ancillary to this application on an indemnity basis.
When the wife’s third application came before the court on 21 August 2018, the matter was adjourned to the following day, at which point the court was presented with a detailed minute of order setting out very specific and detailed arrangements for the children. That order was made with the parties’ mutual consent on 22 August 2018.
It is not apparent that the orders made on 22 August 2018 dealt with the extant applications relating to financial issues, which by that stage were, the wife’s first application, the contravention application, the contempt application and the wife’s third application.
The order however did provide:
(4)The proceedings be otherwise adjourned to the commencement of trial on 2 April 2019 at 10:00am.
Accordingly, it appears safe to assume that the extant applications relating to financial issues were adjourned to the first day of trial on 2 April 2019.
The trial did not proceed on 2 April 2019. In an affidavit filed on 4 September 2019 by the wife, she deposes that the reasons for the adjournment of the trial was as a result of her ill health.
The court did however make orders on 2 April 2019, relevantly as follows:
(2)The application for contempt and contravention application both filed 24 November 2017 are hereby dismissed.
In addition, the court made orders relisting the matter for a three day trial commencing on 25 September 2019.
As a consequence it would appear that by that stage, those applications that were listed to the trial date were those relating to the parenting issues, together with the wife’s extant first application and the wife’s extant third application.
A trial in the matter was heard across 25 – 27 September 2019. The trial was not concluded and was adjourned part heard for three further days commencing 26 August 2020. Those hearings dates proceeded, with a further sitting day on 13 October 2020.
Regard has been had to Judge Cole’s reasons delivered on 4 February 2021, which explain the reasons for the delay between the first and second tranche of the trial due to court delays, counsel unavailability and the impacts of the COVID-19 pandemic.
Between the first and second tranche of the trial, and on 14 October 2019 the wife filed two further applications directed to financial issues as follows:
(a)a further Application in a Case (“the wife’s fourth application”); and
(b)a Second Further Amended Initiating Application.
Significantly, the Second Further Initiating Application set out amendments to the final orders that were now to be pursued by the wife, to include financial issues. Specifically, the wife sought the following orders:
(18)That pursuant to section 79A(d), or in the alternative thereto section 79A(b) or 79A(c) of the Family Law Act 1975 (as amended) the Orders made herein on 11 July 2017 (“the said orders”) be set aside.
(19)That there be such orders by way of settlement of property and adjustment of the property interests of the parties (inclusive of superannuation) as this Honourable Court considers just and equitable which orders the wife will fully particularise by such date as may be fixed by the Court following disclosure by the husband in the terms sought by the wife in the Application in a Case filed this day (hereinafter “the husband’s disclosure”).
(20)That the husband do pay to the wife a lump sum of child support pursuant to Section 123(1)(b) or, in the alternative, 123A(1) of the Child Support Assessment 1989 (as amended) in such amount as will be particularised by the wife following the husband’s disclosure.
(21)That the husband do pay the wife’s costs of and incidental to this Application and on a solicitor client or in the alternative an indemnity basis.
(22)Such further and other orders as this Honourable Court deems just and expedient.
The wife’s fourth application set out a raft of interlocutory orders which not only included very precise and detailed orders for the husband to provide discovery, but relevantly the following:
(2)That the husband be restrained and an injunction granted restraining him from from [sic] selling, transferring, assigning, divesting, leasing, encumbering, alienating or otherwise dealing with the wife’s estate an interest in the property situate at [D Street. Suburb B] in the State of South Australia being the whole of the land comprised of and described in Certificate of Title Register Book Volume […] Folio […] (“the [Suburb B] property”).
(3)That the wife be authorised to enter into a Sales Agency Agreement with a licenced agent for and on behalf of the husband and the wife and to effect a sale of the [Suburb B] property.
…
(5)That the proceeds of sale of the [Suburb B] property be applied as follows:
(a)In payment of real estate agents’ fees, conveyancing fees, marketing fees and disbursements; and
(b)In payment of all proper debts and outgoings (including all arrears) in relation to the [Suburb B] property;
(c)The balance then remaining to be deposited in an interest-bearing account in the name of the Respondent and the Applicant to abide further Order of the Court.
(6)That the wife do receive all rental income from the tenants now occupying the [Suburb B] property PROVIDED THAT the wife shall apply such rental income:
(a)In payment of all outgoings payable in relation to the [Suburb B] property as and when they fall due including any arrears owing in relation thereto and insurance policies held in relation to the said property;
(b)The balance then remaining either in full or partial of the National Australia Bank loan facility […]38 in the name of the husband and the wife.
The wife’s fourth application was marked with a hearing date of 26 November 2019.
Before the hearing on 26 November 2019, the wife filed a Third Further Amended Initiating Application setting out the final orders she now pursued. The only change to that document that related to financial issues was to paragraph 18, to correct and expand upon the relevant sections of section 79A that were relied upon by the wife in the following terms:
(18)That pursuant to section 79A(1)(d), or in the alternative thereto sections 79A(1)(a), 79A(1)(b) or 79A(1)(c) of the Family Law Act 1975 (as amended) the Orders made herein on 11 July 2017 (“the said orders”) be set aside.
In addition, and prior to the hearing on 26 November 2019 and on 22 November 2019, the husband filed a Response to the wife’s fourth application in which he sought the following orders:
(1)That the Application in a Case be dismissed.
(2)That the Husband be authorised to enter into a Sales Agency Agreement with a licenced agent for and on behalf of the Wife and the Husband and to effect a sale of the [Suburb B] property.
(3)That for the purposes of the preceedings [sic] Order, the Husband is authorised in particular to:
(a) Obtain a Form 1 in relation to the [Suburb B] property;
(b) Determine the asking price;
(c)Determine the marketing of the [Suburb B] property including process of sale, method of sale and ultimate sale price;
(d)Accept any offer made in relation to the [Suburb B] property including any terms as to the selling price, subject conditions or otherwise;
(e)Complete the settlement of the sale of the [Suburb B] property including but not limited to the engagement of a conveyancer, the execution of any and all documents necessary to authorise the conveyancer to complete the settlement of the sale and to obtain a discharge of all mortgages secured and any other instrument or caveat so registered against the [Suburb B] property.
(4)That the proceeds of sale of the [Suburb B] property be applied as follows:
(a)In payment of real estate agents’ fees, conveyancing fees, marketing fees and disbursements;
(b)In payment of all proper debts and outgoings (including all arrears) in relation to the [Suburb B] property;
(c)The balance then remaining to be deposited in an interest-bearing account in the name of the Respondent and the Applicant to abide further Order of the Court.
(5)That the wife do pay the Husband’s costs of an incidental to this Application and on a solicitor client or in the alternative an indemnity basis.
(6)Such further and other orders as this Honourable Court deems just and expedient.
When the wife’s fourth application and the husband’s response came before the court on 26 November 2019, the court made the following orders and notations:
UPON NOTING THAT:
A.The parties are seeking a transfer to the Family Court of Australia due to the complexity of the matter and estimate of trial to be at least three (3) days.
B. The husband reserves his rights in respect of payments made to date.
THE COURT ORDERS THAT:
(1)During the period of the adjournment the parties join in instructing joint agents for sale of the [Suburb B] property.
(2)This matter be transferred to the Family Court of Australia at Adelaide for directions on a date to be fixed.
While not clear on the face of the order, because the continuation dates of the part heard trial had not been vacated, it would appear that the intention of the orders made on 26 November 2019 was to bifurcate the financial aspects of the litigation and have those applications transferred to the Family Court of Australia.
Ultimately the matter was listed for hearing in the Family Court of Australia before Justice Mead on 25 February 2020.
In addition on 17 February 2020, and again prior to the hearing before Justice Mead, the wife filed yet another Application in a Case (“the wife’s fifth application”). By that application the wife sought the following orders:
1.That this Application be made specially returnable on or before 25 February 2020.
2.Until further order the husband be restrained and an injunction be granted restraining the husband from disposing of, encumbering or otherwise dealing with the property at [O Street, Suburb G] (the "[Suburb G]" property) in the State of South Australia.
3.Until further order, the husband be restrained and an injunction granted restraining him from settling upon any contract for the sale of the property at [O Street, Suburb G] or from taking any step to facilitate the settlement upon such contract or from authorising or instructing any conveyancer or solicitor to take any such step on this behalf.
4.That the husband do forthwith do all such things as are necessary to withdraw his notice of Removal of Caveat filed with the Registrar-General of the Land Titles Office on 7 February 2020 being document numbered […].
5.That the husband forthwith produce to the wife copies of the following documents:
5.1 All contract for sale by him of the [Suburb G] property
5.2 All documents evidencing the amount owing to the National Australia Bank Ltd ("NAB Bank") pursuant to any loan agreement or charge associated with registered Memorandum of Mortgage numbered […]
5.3 All correspondence with the NAB Bank in relation to the contract for the sale of the [Suburb B] property or the amount required by NAB Bank to discharge the said mortgage
5.4 The loan agreement in writing dated 20 January 2016 between [Ms J] of the one part and the husband of the other part referred to in the caveat of the said [Ms J] lodged on the title of the [Suburb G] property on the 28th January 2016
6.That the Registrar-General of the Land Titles Office be ordered to register orders 2, 3 and 4 hereof made by this Honourable Court upon Certificate of Title Register Book Volume […] Folio […].
7.That the husband do pay the wife's costs of and incidental to this Application and on a solicitor client basis.
8.Such further and other orders as this Honourable Court deems fit.
The wife’s fifth application was listed for hearing to the same date before Justice Mead on 25 February 2020.
At the hearing on 25 February 2020, and while the court does not have the benefit of a transcript or published reasons it can only be assumed from the terms of the orders that were ultimately made, that Her Honour was concerned as to the bifurcation of the proceedings across two separate courts.
Ultimately and as a consequence Justice Mead made the following notations and Orders :
UPON NOTING:
A.The basis of her accepting the assurances of the NAB that the net proceeds of the sale of the property at [Suburb AA] will be used solely to reduce the NAB loan account […] 46 in the name of each of the parties and her acceptance of the truthfulness of the sworn evidence of the husband in his affidavit of 24 February 2020 that the purchasers of the property namely [Mr and Ms P] are ‘people not known to me’.
B. That the consent of the wife to these orders has been given.
THE COURT ORDERS BY CONSENT THAT:
1.The husband be restrained and an injunction granted restraining him from drawing upon or accessing or utilising in any way the redraw/loan/credit facility with the NAB being in a loan amount of $70,000 pertaining to account number […] 46 being the credit contract referred to in a letter from [Mr Q] (NAB) to the wife dated 19 February 2020 and in an email to the wife’s solicitor of this day (both of which documents have been provided to the husband for viewing this day).
2.The wife do all things necessary to effect a withdrawal of caveat in registerable form registered by her over the property situate at [O Street, Suburb G] (SA) contemporaneously with the settlement of the sale of the said property.
3.The wife’s application for costs reserved.
4.The husband’s application for costs reserved.
5.The wife’s application in a case filed herein on 14 October 2019 be listed before Judge Cole in the Federal Circuit Court as soon as possible.
6.The wife’s application in a case dated 17 February 2020 be dismissed subject to the question of costs.
In addition Justice Mead made a further order with notations on 25 February 2020 as follows:
UPON NOTING THAT at the time these proceedings were transferred to the Family Court of Australia by His Honour Judge Cole of the Federal Circuit Court on 26 November 2019, they were pending before him to the extent that a trial with respect to parenting matters was part-heard after 3 days and listed to resume before him in August 2020 and further, that an amended application had been filed by the applicant on 14 October 2019 with respect to both parenting matters and an application pursuant to section 79A of the Family Law Act 1975 (as amended) in relation to property matters.
THE COURT ORDERS THAT:
1.That pursuant to section 33B(1) of the Family Law Act 1975 (as amended) these proceedings be transferred back to the Federal Circuit Court and to the docket of Judge Cole.
The matter returned before a Judge in the Federal Circuit Court on 23 March 2020. On that day the matter was adjourned to 19 June 2020 “for directions in respect of the transfer issue”. It is unclear why this approach was taken, as against the financial issues being included in what was then part heard parenting proceedings in the Federal Circuit Court. However, the court notes that in his reasons delivered on 4 February 2021, Judge Cole made the following remarks:
6.Following the adjournment of the hearing the mother filed a further Amended Application seeking to set aside orders previously made by consent for the division of the parties’ property. Those matters have run separately to the parenting proceedings and there has never been any suggestion that they would be heard as part of this trial.
During the adjourned period the husband filed an Application in a Case on 6 May 2020 (“the husband’s first application”), in which he sought the following orders relating to financial matters:
1.The Respondent Mother be restrained and an injunction is granted from attending or being on the premise of the [Suburb B] property, known as [D Street, Suburb B], for any purposes.
2.The Respondent Mother be restrained from contacting the tenant at the [Suburb B] property for any purposes, in person, by phone or by mail, or through her legal representative; or by any other agent or friend acting on her behalf.
3.That clause 10.5 of the Binding Child Support Agreement be acknowledged and further argument set aside for a later date; that the Child support Agency (Dept of Human Services) in the meantime collect payment of the appropriate rate of Child Support only, that amount determined by the Applicant Father’s taxable income and the mandated formula, as it has been since separation in July 2017; or an agreeable amount in the interim.
4.The Respondent Mother be restrained and an injunction is granted from further denigration of the Applicant Fathers character to their children and to any other person.
5.The Applicant Father seeks an order to costs for this matter.
Prior to the adjourned hearing on 19 June 2020, and on 16 June 2020, the husband filed another Application in a Case (“the husband’s second application”), in which he sought the following orders:
1.That the Respondent wife ([Ms Fortnum]) be restrained and an injunction is granted restraining the Respondent (wife) from:
a) Directly or indirectly Interfering with:
i)The Development Application for [D Street, Suburb B] (“the [Suburb B] property”);
ii)The subdivision of the [Suburb B] property; and
iii)The sale of the [Suburb B] property.
2.Following any subdivision and sale of the [Suburb B] property, the Husband be permitted to apply proceeds of any sale in the following priority:
a) In satisfaction of any State Government and/or Local Government charges, including but not limited to any Council rates, Water rates, ESL charges in respect of the property; then
b) In payment of any sum secured by the registered mortgage in favour of National Australia Bank Limited secured over the [Suburb B] property;
c) In payment of any usual sales and marketing fees in respect of the [Suburb B] property, including but not limited to real estate agent’s invoices, disbursements and any conveyancing fees and charges;
d) The amount due to [Mr M];
3.The balance of monies be paid into Court in the within Action.
4.Liberty to apply.
5.Any other Orders as this Honourable Court deems fit.
When the matter came before the court on 19 June 2020, the following orders were made:
(1)That the proceedings are adjourned to 8 July at 11:00am for argument on the issue of the application to transfer the entire proceedings to the Family Court (NOTING one (1) hour allowed).
(2)Both parties file and serve written submissions limited to three (3) pages on or before 6 July 2020.
Running alongside this intervening period the wife asserts:
(a)That in June 2020 the lease on the rental property that she and the children resided in lapsed and was not to be renewed by the landlord;
(b)At the same time the husband was in arrears of his obligation to pay child support in the amount of $23,000;
(c)That in addition the wife had credit card liabilities of $46,000;
(d)That she was facing homelessness;
(e)That the court had failed to deal with her application first made in October 2019 for the sale of the Suburb B property;
(f)That she made a successful application in the Supreme Court for possession of the Suburb B property and thereafter took possession of the property as and from 21 June 2020. The wife and the children have resided in the Suburb B property since that time.
The husband has variously asserted that the wife took possession of the property in April and/or May 2020.
At the hearing on 8 July 2020, the following orders were made:
1.The application to transfer the property proceedings is adjourned pending the resolution of the parenting proceedings.
2.The proceedings are adjourned to 27 July 2020 at 9:30am for the allocation of a hearing date for the applications in a case and the respective responses (NOTING Counsel will confer on which applications are being pressed).
3.The proceedings with respect to parenting issues are adjourned to 26 August 2020 at 10:00am for trial.
4.The parties direct their Counsel to confer in respect of the management of the proceedings on or before 1 August 2020.
As foreshadowed by the orders made on 8 July 2020, the matter returned to court on 27 July 2020, where the following orders were made:
1.There be liberty to the wife to file and serve an amended application in a case (in respect of the 14 October 2019 application) within fourteen (14) days.
2.There be liberty to the husband to file and serve an amended application in a case (in respect of the 16 June 2020 application) within twenty-one (21) days.
3.There be a Declaration pursuant to section 45 of the Federal Circuit Court Act 1999 and pursuant to Rule 14.02 of the Federal Circuit Court Rules 2001 to allow discovery.
4.Within forty-five (45) days the parties do make discovery on oath NOTING the items sought in the parties’ respective applications.
5.The parties attend an informal ‘without prejudice’ conference with counsel briefed to appear at trial on or before 1 October 2020 (by way of telephone or video conference).
6.The proceedings are adjourned to 11 November 2020 at 3:15pm for argument with respect to the parties’ applications in a case (NOTING one (1) hour allowed).
7.The parties file and serve written submissions limited to four (4) pages on or before 9 November 2020.
On 22 September 2020, the wife filed yet another application directed to financial issues (the wife’s sixth application”), in which she sought the following orders:
1.That this Application be listed for hearing as a matter of urgency.
2.That the husband be restrained and an injunction granted restraining him from from [sic] selling, transferring, assigning, divesting, leasing, encumbering, alienating or otherwise dealing with the wife’s estate an [sic] interest in the property situate at [D Street, Suburb B] in the State of South Australia being the whole of the land comprised of and described in Certificate of Title Register Book Volume […] Folio […] (“the [Suburb B] property”).
3.That the wife have leave to file and serve a further amended Application in a Case upon inspecting the documents contained in the husband’s Affidavit of Documents.
4.That the application pursuant to 79A of the Family Law Act 1975 (as amended) in relation to property matters and all outstanding applications in respect of property matters to be transferred to the Family Court of Australia.
5.That the husband do pay the wife’s costs of and incidental to this Application and on a solicitor client or in the alternative an indemnity basis.
On 10 November 2020, the wife filed another application directed to financial issues (“the wife’s seventh application”), in which she sought the following orders:
1.That this Application be listed for hearing as a matter of urgency.
2.That pursuant to section 123 of the Child Support Assessment Act 1989 (Cth) the husband forthwith pay the sum of TWENTY-ONE THOUSAND DOLLARS ($21,000) to the wife by way of lump sum child support.
3.That the husband do pay the wife’s costs of and incidental to this Application and on a solicitor client or in the alternative an indemnity basis.
4.Such further and other orders as this Honourable Court deems just and expedient.
Simultaneously with the filing of the wife’s seventh application, the husband filed a further Application in a Case (“the husband’s third application”). By that application, the husband sought the following orders:
1.That the Wife permit access to the property situated at [D Street, Suburb B] to the Applicant Husband’s surveyors on a date to be ordered by the Court;
2.Liberty to apply;
3.Any other Orders as this Honourable Court deems fit.
When the financial issues returned to court on 11 November 2020 (by which stage the second and third tranche of the parenting trial had concluded and the court had reserved his decision), the following orders and notations were made:
UPON NOTING THAT:
A.The listing on 23 November 2020 is agreed to be vacated and that the application travel with the carriage of the proceedings,
B.The parties have been undertaking extensive negotiations in respect of the sub-division and sale of the [Suburb B] property,
C.There has been extensive disclosure by the husband with a small number of documents yet to be provided,
D.The parties will be having an informal without prejudice conference with their legal representatives,
THE COURT ORDERS THAT:
1. The Child Support application remains listed on 1 December 2020 at 10:30am.
2.The listing on 23 November 2020 is vacated and will travel with the carriage of the proceedings.
3. The proceedings are adjourned 4 February 2021 at 9:30am for directions.
4.The application for transfer of the proceedings is adjourned with the carriage of the proceedings.
When Judge Cole delivered his reasons and made final parenting orders on 4 February 2021, he additionally made the following orders directed to the financial issues:
1.The parties attend an informal ‘without prejudice’ conference with their legal representatives on or before 28 February 2021.
2.The proceedings are adjourned to 22 March 2021 at 9:30am for directions.
When the matter returned to court on 22 March 2021 the following orders were made:
UPON NOTING THAT the parties will continue to negotiate in respect of all issues and a time for argument may be sought in respect of property issues,
THE COURT ORDERS THAT:
1.The proceedings are adjourned to 18 May 2021 at 11:00am for directions.
During the adjourned period, and on 14 April 2021, the father filed yet another Application in a Case (“the husband’s fourth application”), in which he sought the following orders:
1.Stay Order against the payment or accrual of Spousal Maintenance as per the Binding Child Support Agreement of 11 July 2017 until all maters can be heard by this Honourable court.
2.That the Mother be restrained and an injunction is granted from having any contact directly or otherwise with [Mr M] in relation to the caveat over the [Suburb B] Property,
When the matter next returned to court on 18 May 2021, following orders and notations were made:
UPON NOTING THAT:
A. The parties agree on the sale of the [D Street] property,
B. The parties are negotiating the terms and conditions of the sale of the property,
C.The parties will continue to negotiate regarding the debts to be paid from the proceeds of the sale noting some of the proceeds may be left in trust pending the determination,
D.The parties agree to meet for an informal “without prejudice” conference ([Mr Tamplin] advises the Court that he will brief [Mr R] to assist him in that conference) in the adjourned period,
E.In the event of no agreement being reached the parties agree to seek the transfer of these proceedings to the Family Court of Australia,
THE COURT ORDERS THAT:
1.The proceedings are adjourned to 6 July 2021 at 11:00am for directions.
2.There be liberty to the parties to apply no later than forty-eight (48) hours prior to listing to vacate the listing for consent orders on:
(a)filing a Minute of Agreed Orders resolving all issues and a joint letter seeking orders be made in Chambers;
(b)providing sufficient agreed information to enable the Court to make the orders in the absence of the parties; and
(c)providing documentary proof that the procedural fairness and justice and equity requirements have been met.
When the matter next returned to court on 6 July 2021, the court made the following orders:
1.The parties attend an informal ‘without prejudice’ conference with their legal representatives on or before 1 August 2021 NOTING the parties are to be in attendance.
2.The listing on 2 August 2021 is hereby vacated (NOTING the callover listing scheduled for 6 August 2021).
3.The proceedings are adjourned to 6 September 2021 at 9:30am for directions.
It appears that thereafter the matter was listed in the winter callover hearing before an interstate Judge. The purpose of the winter callover, as identified by the court in publically released information was to assist parties in resolving pending family law cases through dispute resolution or mediation and exit the court process with a negotiated resolution of their dispute.[2]
[2] Winter Callover – Information Notice – Federal Circuit Court of Australia
At the winter callover hearing on 6 August 2021 the following orders and notations were made:
1.The matter is transferred to the Family Court of Australia, Adelaide Registry on a date and time to be advised.
THE COURT NOTES THAT:
A. These are extremely complex property proceedings.
Ultimately the proceedings were listed before me in the Family Court of Australia on 3 November 2021. In preparation for that hearing, the following orders were made in chambers:
1.That the matter be listed for a Case Management hearing on 9 November 2021 at 10.00am.
2.That properly instructed counsel attend the hearing and be in a position to make submissions as to the extant applications:
(a) That are to be pressed and those to be dismissed;
(b) Any interlocutory hearings that are required;
(c) The orders necessary to progress the matter to a final hearing; and
(d) The general conduct of the matter
As explained to the parties at the hearing on 3 November 2021, those orders were made as the court held concerns as to the state of the matter, the number of extant applications that did not appear to have been resolved and the passage of time that had passed which may have rendered the need to determine some or all of those applications unnecessary.
The hearing on 9 November 2021 was lengthy and all extant issues were traversed. At the conclusion of the hearing, the following orders and notations were made:
UPON NOTING:
A.That the wife pursues both her application pursuant to Section 79A to set aside the final orders made on 11 July 2017 together with the payment of extant child support arrears.
B.The husband’s position is that an offer to resolve all aspects of the matter has been made by the wife and accepted by the husband.
C.The husband’s open position in Court today is that if the terms of the offer which he says has been accepted is effected, he is prepared to concede:
(a) That the wife is at liberty to pursue both her Section 79A application and the payment of any asserted child support arrears;
(b) That the terms of settlement would be a period of 60 days from the making of orders;
(c) That in default of payment by him within 60 days there be a default provision in any orders made that the [Suburb B] property be sold with both parties to be involved with the sale process.
D.The husband’s open position is that in the event that the Court does not rule in his favour with respect to the offer and acceptance issue then he would not oppose Justice Kari continuing to hear the matter.
E.The Court notes that the husband’s position in the event the Court rules against him with respect to the offer and acceptance issue then he is likely to file an application to bifurcate the Section 79A application.
F.The wife’s position is that in the event that the Court rules in her favour with respect to the offer and acceptance issue then she is likely to file an interlocutory application with respect to:
(a) Sale of the [Suburb B] property;
(b) Outstanding child support arrears which are acknowledged to be in the sum of approximately $56,000.00; and
(c) The release of funds to the wife on an interim basis.
THE COURT ORDERS:
1.That by consent all extant interlocutory applications in the matter be dismissed.
2.That no later than 4.00pm on 16 November 2021 the husband do file and serve the foreshadowed Application in a Case with respect to the offer made by the wife and purported acceptance by the husband.
3.That no later than 4.00pm on 30 November 2021 the wife do file and serve any Response to the foreshadowed Application in a Case to made by the husband pursuant to these orders.
4.That the Application in a Case provided for in paragraph 2 of these orders be listed for Interim Hearing on 13 December 2021 at 10.00am with such hearing to be conducted on a face-to-face basis.
5.That no later than 4.00pm on 8 December 2021 the parties do exchange and provide by email to the Associate to Justice Kari […] a bullet point summary of argument together with a list of any relevant authorities relied upon.
At the hearing on 13 December 2021, the court heard full argument as to the limited issues in dispute that day regarding the purported offer made to finalise the matter and the purported acceptance of that offer. During the hearing, the husband abandoned his application in that regard. As a consequence the following orders and notations were made:
UPON NOTING:
A.That the husband abandons part A of annexure A to the Application in a Case filed by the husband on 16 November 2021 as amended on 2 December 2021, Part A of Annexure A as sought in paragraph 1 of the said Application in a Case be dismissed.
THE COURT ORDERS:
1.That the wife’s costs in relation to Part A of Annexure A to the said Application in a Case be reserved to trial or such earlier date on the application of either party.
2.That paragraph 2 of the Amended Application in a Proceeding filed on 2 December 2021 be dismissed.
3.That no later than 4.00pm on 17 December 2021 the husband do file and serve Part B of Annexure A to the Amended Application in a Proceeding filed on 2 December 2021.
4.That no later than 4.00pm on 13 January 2022 the wife do file and serve a Response to paragraph 3 and Part B of Annexure A to the Amended Application in a Proceeding filed on 2 December 2021 together with any Affidavit in support.
5.That no later than 4.00pm on 27 January 2022 the husband file and serve any Reply thereto together with any Affidavit in support.
6.That the extant interlocutory applications referred to in these orders be listed to 1 February 2022 at 10.00am (1 day allowed).
7.That the following documents be suppressed on the Commonwealth Courts portal and placed in a sealed envelope on the Court file not to be viewed by the presiding judicial officer in the absence of any application pursuant to Section 117 of the Family Law Act 1975 on the making of final orders in the matter:
(a) The Application in a Case filed by the husband on 19 November 2021;
(b) The Affidavit of [Mr S] filed on 16 November 2021;
(c) The Affidavit of [Ms T] filed on 2 December 2021;
(d) The Outline of Argument prepared on behalf of the husband dated 8 December 2021;
(e) Exhibits W1, W2, W3 W4 and H1 tendered during the course of the hearing on 13 December 2021; and
(f) The Affidavit of [Mr S] sealed on 1 November 2021;
As a consequence of the orders made on 13 December 2021 a number of further documents were filed by the parties as follows:
(a)The husband filed an Amended Application in a Case on 16 December 2021;
(b)The wife filed a Response to that Application on 17 January 2022.
It is those applications which guide the present interlocutory dispute the subject of these reasons.
observations as to the progression of the litigation concerning financial issues
In light of the summary that has just been set out, it is observed that the progression of the financial aspects of the matter has taken on what can only be described as “a life of their own” since the making of the final order on 17 July 2017.
It is with some sympathy to the parties, but particularly the wife, who feels aggrieved that between the parties there have been thirteen interlocutory applications filed between the making of the final order on 17 July 2017 and the second transfer of the matter to the Family Court of Australia on 6 August 2021. It would appear that in each of those interlocutory applications, the focus of the wife in particular has been directed to having the husband comply with the final orders and otherwise finalising the disputation regarding financial issues once and for all, and yet the disputation between these parties remains rife.
It is apparent that from the wife’s perspective there is a significant level of mistrust and acrimony which has manifested as a consequence of what she would categorise as the husband’s continuous failure to comply with the terms of the final order.
It is also not lost on the court that parenting issues continued to run alongside the dispute that arose over the implementation of the terms of the final order. In his reasons delivered on 4 February 2021, Judge Cole observed that the parents had a “toxic relationship”[3], and repeated comments made by the family report writer that the parties “appear determined to use their personal resources and their abilities to do malicious harm to each other.”[4]
[3] Fortnum & Tamplin [2021] FCCA 173, paragraph 22.
[4] Ibid, paragraph 24.
When viewed through the prism of the ongoing dispute over financial matters, those observations appear to continue to apply to these parties.
the issues that now remain in dispute
As a consequence of the events that flowed from the case management hearing on 6 November 2021, the issues that remain extant are as follows:
(a)The wife’s application pursuant to s79A to set aside the final order made 17 July 2017;
(b)The parties’ competing interlocutory applications which they each assert are directed to the enforcement of the terms of the final order.
While the specific interlocutory orders sought by each of the parties will be set out later in these reasons, in essence:
(a)The wife asks that the court make orders providing for the sale of the Suburb B property to address the husband’s default in carrying out the obligations created upon him in the final orders to pay certain monies.
(b)The husband asks that the court make orders providing for a transfer of the Suburb B property to him to address the wife’s default in carrying out her obligation to do so pursuant to the terms of the final order.
A hearing in the matter took place as scheduled on 1 February 2022. It is not proposed that there be a repetition in these reasons as to what occurred at that hearing, given ex tempore reasons were given at the conclusion of the hearing, and those reasons have been separately published. Those reasons are to be read in conjunction with these reasons, as the effect of what occurred on 1 February 2022 was to bring focus and scaffolding to the determination of the present issues in dispute.
Importantly, orders were made on 1 February 2022 as follows:
1.That no later than 4.00pm on 22 February 2022 the Respondent do pay the sum of $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.
As identified in the reasons of 1 February 2022:
(a)The sum of $48,859.66 was an amount owing by the husband to the wife with respect to spousal maintenance arrears arising from non-compliance with paragraph 2 of the final order.
(b)The two further amounts of $29,627.76 and $14,972.95 were amounts owing by the husband pursuant to obligations created by the Binding Child Support Agreement entered into between the parties at the same time that the final order was made.
It is understood that the husband complied with the payment obligations created by paragraph 1 of the orders made 1 February 2022. In addition he made some additional payments towards his child support obligations. The effect of the payment made by the husband, is that the parties agree that at the present moment there are no spousal maintenance arrears pursuant to paragraph 2 of the final order (and presumably that order has now been satisfied in full). Nor are there presently any child support arrears pursuant to the terms of the Binding Child Support Agreement.
The orders now sought by the husband
While the extant application before the court is the husband’s Amended Application in a Proceeding filed on 16 December 2021, the orders sought by the husband are those contained in his affidavit filed on 15 February 2022 as follows:
2.That the Wife and or any boarder, tenant or other person authorised by the Wife to reside at the [Suburb B] property shall vacate the [Suburb B] property on or before 21 days from the making of these Orders and upon her vacation the Wife shall be restrained and an injunction granted restraining the Wife, whether by herself and/or her servants, tenants, boarders or any other person authorised by the Wife to reside at the [Suburb B] property and agents from re-entering the [Suburb B] prope1ty and/or reoccupying the same.
3.That with 60 days from the making of these Orders the Wife shall do all acts and things and sign all requisite documents to transfer to the Husband all of her right title and interest in the [Suburb B] property to the Husband ("the transfer").
4.That contemporaneously upon the transfer the Husband do all such acts and things and sign all requisite documentation to:
4.1Procure the Wife's complete discharge and release from any obligation in relation to the NAB Loan Facilities […] 38, […] 46 and […] 21 and indemnify the Wife in relation to the same;
4.2Pay all outstanding council, water and ESL Levies which currently stand in the sum of approximately $30,000;
4.3Pay all the entirety of the loan to [Ms J] in the sum of $300,000;
4.4Pay such monies to [Mr M] as are required to procure the lifting of his respective caveats over the [Suburb B] property;
4.5Subject to these Orders pay to the SA Office of State Revenue such amount as may be required to extinguish any liability the Wife may have in relation to land tax arising out of her ownership of the [Suburb B] property.
("the discharges")
5.That prior to the Wife's vacation the Wife shall do all act and things to cooperate and assist with allowing any valuer appointed by the Husband and/or a financial institution to attend upon and inspect the property of the purposes of obtaining a valuation.
6.That save for circumstances whereby the Husband is appointed as the joint trustee of the sale of the [Suburb B] property the Husband be restrained upon entering upon the [Suburb B] property until after such time as the Wife has vacated the property in accordance with these Orders.
7.That in the event that the Husband defaults in relation to any of his obligations in relation to the discharges, the parties be appointed joint trustees shall forthwith place the [Suburb B] property on the market for sale by Public Auction with a Real Estate Auctioneer to be either agreed between the parties or default of such agreement a to be appointed by the President of the Real Estate Institute of SA.
8.That the reserve price for the Auction shall be set by the appointed Real Estate Agent in consultation with the appointed Auctioneer.
9.That upon the settlement of the sale of the [Suburb B] property the net proceeds be applied as follows:
9.1 In payment of all costs, commissions and expenses of the sale;
9.2In the adjustment of all outstanding rates and taxes relating to the [Suburb B] property;
9.3In full discharge of all amounts owed to [Mr M] to ensure the uplift of his caveat secured over the title to the [Suburb B]property;
9.4 In payment of the loan from [Ms J];
9.5 In discharge of all mortgages and loans to the National Australia;
9.6 As to the balance then remaining to the Husband.
Restraints
10.Pending compliance by the Husband and Wife with each obligation arising pursuant to these Orders and save only as is necessary for the sole purpose of compliance with such obligations the Husband and Wife shall be and hereby is restrained from causing or permitting any dealing in respect of each of:
10.1 The [Suburb B] property
AND the obligations of the Husband and the Wife pursuant to these Orders is hereby charged over the interests of each of the entities, including but not limited to the interests and entitlements of the Husband and Wife therein;
Taxation and Land Tax
11.The parties will use their best endeavours to the extent that they are lawfully able to do so to minimize any transfer duty, income tax, PAYG tax instalments, GST or CGT payable in giving effect to these Orders.
12.The Wife shall within 14 days of the making of the these Orders provide to the Husband a statutory declaration which confirms that the Wife has lived in the [Suburb B] property as her principal/primary place of residence from 22 June 2021 to date, to enable the Husband to apply for a remission and/or exemption of the Land Tax levied by the Office if State Revenue in relation to the [Suburb B] property.
Procedural & Other
13.The parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to these Orders.
14. Pursuant to Section 106A of the Family Law Act 1975 (Cth)
14.1In the event the Husband and or\wife refuses to or neglects to comply with any direction and/or order as set out in the above paragraphs or for any other reason, this Honourable Court considers it necessary to exercise the powers of this Honourable Court under this subsection this Honourable Court may appoint an officer of this Honourable Court or other person to execute the deed or instrument in the name of the Husband and/or wife and to do all acts and things necessary to give validity and operation to the deed or instrument.
14.2The execution of a deed or instrument by a person appointed under this section to execute that deed or instrument above has the same force and validity as if the deed or instrument had been executed by the Husband and/or wife as directed in these orders.
14.3This Honourable Court may make such order as it considers just as to the payment of the costs and expenses of and incidental to the preparation of the deed or instrument and its execution.
15.The parties have liberty to apply at extremely short notice to Justice Kari in relation to the implementation and/or enforcement of these Orders.
16.That in relation to the Wife's 79A Application there be a bifurcation of the Section 79A
threshold issue and this be determined by this Honourable Court as a preliminary matter.i
17. Costs
the orders now sought by the wife
The orders now sought by the wife are contained in her Response to an Application in a Proceeding filed on 17 January 2022, which provides as follows:
2.That paragraphs 2 to 17 (inclusive) of the orders sought in the husband's said application be dismissed.
3.That the property situated at [D Street, Suburb B] in the State of South Australia ("the [Suburb B] property") being the whole of the land comprised of and described in the Certificate of Title Register Book […] Volume […] be listed on the market for sale forthwith.
4. For the purposes of the preceding paragraph:
4.1the selling agent be such agent as is forthwith nominated by the President of the Real Estate Institute of South Australia;
4.2the selling agent shall determine the manner of the marketing of the [Suburb B] property, the process of sale, the method of sale and the asking price;
4.3notwithstanding the terms of paragraph 4.2, if the [Suburb B] property has not been sold by way of private treaty within twenty-eight (28) days of the date of the making of these orders then the property shall proceed to public auction with such auctioneer as shall be nominated by the President of the Real Estate Institute of South Australia and that the reserve price shall be such sum as is fixed by the President of the Real Estate of Institute of South Australia in consultation with the selling agent;
4.4the wife is hereby authorised to obtain a Form 1 in relation to the [Suburb B] property;
4.5the wife is hereby authorised to complete the settlement of the sale of the [Suburb B] property including but not limited to retaining a conveyancer, the execution of any and all documents necessary to authorise the conveyancer to complete the settlement of the sale and to obtain a discharge of all mortgages secured against the [Suburb B] property.
5.In the event the property is to be sold other than by way of public auction, any offer received for the purchase of the [Suburb B] property must be accepted in writing by the husband and the wife jointly through their respective solicitors.
6. That the proceeds of sale of the [Suburb B] property be applied as follows:
6.1in discharge only of the following loan facilities with the National Australia Bank secured by way of registered mortgage number […] over the [Suburb B] property;
6.1.1 NAB loan facility […] 38;
6.1.2 NAB loan facility […] 46;
6.2in payment of all real estate agent's fees, auctioneer fees (if any), marketing costs and conveyancer's fees and disbursements;
6.3in payment of such household outgoings as are outstanding at the date of settlement of the sale of the [Suburb B] property including but not limited to all outstanding SA Water rates, Local Council rates and Emergency Services Levies;
6.4in payment of such sum as is outstanding at the date of settlement of the sale of the [Suburb B] property by way of land tax;
6.5 in payment of the sum of $300,000 to [Ms J];
6.6 the sum of $8,000 to [V Real Estate];
6.7 as to the balance then remaining:
6.7.1 the sum of $30,000 to the wife by way of litigation funding;
6.7.2the sum of $50,000 to the wife by way of prospective capitalised child support;
6.7.3such sum then remaining to be paid to the trust account of the wife's solicitors to abide further order of this Honourable Court.
7.That contemporaneously with the settlement of the sale of the [Suburb B] property the husband do:
7.1all such acts and things and sign all such documents necessary to removed registered caveat number […] 44 lodged by the husband over the [Suburb B] property;
7.2discharge the following debts personally and to the complete exoneration of the wife:
7.2.1all monies required to retire in full the husband's business loan account being National Australia Bank loan facility […] 21; and
7.2.2such sum as is required to produce from [Mr M] a withdrawal of registered caveat number […] 75 over the [Suburb B] property.
8.That the husband do pay the wife's costs of and incidental to these interim proceedings and on a full indemnity basis.
9.Such further and other orders as this Honourable Court deems just and expedient.
THE STATUS OF COMPLIANCE WITH THE TERMS OF THE FINAL ORDER
For present purposes the terms of the order which are uncontroversial will not be the subject of comment in these reasons.
There are however various terms of the order which are either the subject of late compliance, non-compliance and/or the terms are of some controversy. It is those terms of the final order about which discussion shall follow.
Final Orders which the parties agree are the subject of compliance
It is an agreed position between the parties that certain obligations created pursuant to the terms of the final order have now been satisfied.
Paragraph 1.7 of the Final Order – payment of settlement sum to the wife
The parties agree that the husband has met his obligation for the payment to the wife of a settlement sum in the amount of $200,000 pursuant to paragraph 1.7 of the final order.
The parties also agree that the payments were made in instalments as follows:
(a)The sum of $100,000 on 12/13 September 2017;
(b)The sum of $30,000 on 7 February 2018;
(c)The sum of $50,000 on 6 August 2018; and
(d)The sum of $20,000 on 21/22 August 2018.
As a consequence of all of the circumstances relating to the loan agreement with Ms J, the wife maintains her position that not only has the husband defaulted in his obligation pursuant to paragraph 1.12 of the final order, but that she remains exposed. The wife’s position is that the Notice of Discontinuance does not provide a complete release to her. This assertion is made because the husband is completely silent as to how he intends to deal with the Supreme Court action. In particular, he has not filed a defence, he has not obtained legal advice or representation and nor has he indicated whether he will permit a judgment debt to be entered into against him in response to the claim.
The wife’s assertions in that regard are amplified, she says because she is suspicious as to Ms J’s bona fides and the extent to which she is co-operating with the husband.
Paragraph 1.10 of the Final Order – default sale of the [Suburb B] property
It is the wife’s position that the proper interpretation of the default provisions contained in paragraph 1.10 of the final order is that the default sale of the Suburb B property was triggered by the husband’s failure to pay the settlement sum of $200,000 within three months of when that amount was payable pursuant to paragraph 1.7 of the order (being three months from 17 September 2017, which would have been as and from 17 December 2017).
The alternative position is that asserted by husband, that the default sale of the Suburb B property contained in paragraph 1.10 of the final order was not ever triggered, as the husband was required to pay the settlement sum together with interest by 30 June 2018, and the default sale would only arise if his default extended for a period of three months from 30 June 2018, being September 2018. While the husband was late in his payment of the settlement sum, as identified earlier in these reasons, it was paid in full by 21/22 August 2018, before the default clause was triggered on his interpretation of the order. Noting that interest was not paid until 27 March 2019.
If the husband’s interpretation in this regard is ultimately accepted, then it is easier to explain why the wife provided a signed transfer for the Suburb B property to the husband’s solicitor on 27 March 2019, as against insisting on the sale of the Suburb B property at some point up to and inclusive of that juncture. This observation is reinforced when regard is had to the timing of when the wife first asked the court to sell the Suburb B property being October 2019.
The source of power identified by each of the parties
The husband asserts that the orders he now seeks are either enforcement orders or machinery orders to effect the wife’s obligation created by paragraph 1.1 of the final order to transfer the Suburb B property to him.
Conversely the wife asserts that the only power for the court to make the tranche of orders that the husband now seeks is if the final order was set aside or varied pursuant to section 79A of the Family Law Act 1975 (Cth). The husband however has not made such an application.
It is the wife’s position, that the husband’s ongoing default in complying with various terms of the final orders as identified earlier in these reasons, coupled with the default of those orders previously referred to which are now the subject of compliance by him , trigger the sale of the Suburb B property either as a consequence of:
(a)The provisions of paragraph 1.10 of the final order;
(b)The general enforcement powers of the court contained in section 105 of the Family Law Act 1975 (Cth) and thus Rule 11.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; or
(c)The general powers of the court contained in section 80 of the Family Law Act 1975 (Cth).
The legal principles
Enforcement
The enforcement provision set out in section 105 of the Family Law Act, provides as follows:
105(1) Subject to this Part, the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
(Emphasis added)
As is plain from the wording of section 105(1) of the Act, the court retains discretion as to whether to exercise the powers of enforcement.[6]
[6] see Ramsey & Ramsey (1983) FLC 91-301
However as identified by Justice Tree in the first instance decision of McMillan & McMillan [2016] FamCA 387, at 33:
…it is less clear what is required to be established in order to justify the exercise of that discretion…
For present purposes no specific submissions were made by counsel as to what principles might guide the exercise of the court’s discretion. Nor were any submissions made as to how any principles might weigh in the court’s deliberations in all of the circumstances of this case.
It is however useful to identify those factors which guide the exercise of the court’s discretion. While not the subject of comment by the Full Court of this court, in the first instance decision of Wells (Deceased) (by her Legal Personal Representative, Ms M) and Wells [2016] FCWA 45 (21 June 2016) at 46, Justice Thackray made the following comments as to the principles to be applied by the court when considering whether to exercise discretion to enforce an order:
•While there is a discretion not to enforce, like all discretions conferred on courts, it must be exercised judicially: Duroux v Martin (1993) FLC 92-432 at 80,407.
•It is only matters arising since the making of the order that can properly inform the exercise of the discretion: Ramsey and Ramsey (1983) FLC 91-301 at 78,062.
•Therefore, the court cannot seek to refashion the original order, however unjust it may seem in hindsight: Ramsey & Ramsey (No 2) (1983) FLC 91-323 per Nygh J.
•The question is whether it would be inequitable to enforce the order, not by reference to strict equitable doctrine but rather by reference to general notions of justice (see the authorities Tree J reviewed in McMillian & McMillian [2016] FamCA 387).
•Prima facie, a litigant (or those who stand in their place) is entitled to the benefit of an order of the court, and hence the onus to show it would be inequitable to enforce falls on the party in default: Ramsey & Ramsey (1983) FLC 91-301 at 78,061.
As prescribed by section 105, when considering any enforcement application, the court must also have regard to the applicable rules of court, which are contained in Part 11.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Machinery/Consequential Orders
Another avenue for the court to derive power to make orders that have the effect of carrying into effect the terms of the final order arises as a consequence of the “liberty to apply” provision contained in the final order, which enlivens the general powers of the court contained in section 80 of the Family Law Act 1975 (Cth).
As identified by the Full Court of this court in Pera & Pera [2008] FamCAFC 87:
59.In Slapp & Slapp (1989) FLC 92-022 the Full Court discussed the limitations on the power of the Court to vary an order made under s 79 and said at 77,360:
It is not open to a court to make a substantive variation to orders previously made under sec. 79. That proposition can today no longer be doubted. It is based upon the principle, endorsed by the High Court in the case of Taylor v. Taylor(1979) FLC 90-674; 5 Fam. L.R. 289, that an order under sec. 79 is a once and for all proposition.
Such an order can only be varied on appeal or, where the circumstances warrant the same, pursuant to sec. 79A…
60.The applicable principles were similarly referred to by Frederico J in Cranage & Cranage (1981) FLC 91-039 as follows at 76,344:
The Family Law Act confers no power on the Court to vary an order for settlement of property (Taylor and Taylor (1977) FLC 90-226; King and King (1977) FLC 90-299; Kaljo and Kaljo (1978) FLC 90-445; Branchflower and Branchflower (1980) FLC 90-857). The Court has power to set aside a property order only on the narrow grounds set out under sec. 79A, and the parties make no application under that section. Nor has any appeal been brought against his Honour's order.
However, in McDonald and McDonald (1976) FLC 90-047, the Full Court held that “there is ample power to modify the machinery provisions of a property order provided this does not affect the substantive property rights or cause undue hardship to either party”. This view was followed in Kaljo and Kaljo (supra) and more recently in Molier and Van Wyk (1980) FLC 90-911. The Court derives such power from sec. 80 of the Family Law Act. An application might be made for the Court to exercise the power even though liberty to apply had not been reserved expressly.
61.The distinction between a machinery and a substantive order is extensively discussed by the Full Court in Ravasini & Ravasini (1983) FLC 93-312 at 78,126 to 78,127:
Counsel for the appellant referred to McDonald and McDonald (1976) FLC 90-047, Kaljo and Kaljo (1978) FLC 90-445 and Molier and Van Wyk (1980) FLC 90-911 as authority for the power of the Court to make what is termed a machinery order. There is no question of the power of the Court to make what we would with respect suggest is more properly called a consequential order. The real questions are what is the proper definition of a consequential or machinery order and where is the dividing line between a consequential order which may be varied or modified and a substantive order which the Act gives no power to the Court to modify or vary. Counsel for the appellant was unable to refer the Court to any authority on this point but argued the submission rather by comparison with the facts of the cases referred to.
...
It is appropriate then to look at what a consequential order is. The Shorter Oxford Dictionary defines “consequential” as meaning “Following esp. as an effect, immediate or eventual, or as a logical inference”.
The Universal English Dictionary defines the word as “Following as a consequence, on what has gone before, resultant: consequential alteration in wording of a document, those made necessary by others already made.” The same dictionary defines “consequence” as “Event which follows upon something else which is, or appears to be, the cause; a result, outcome of what has gone before.”
A consequential order then, in a property matter, would include an order following logically or of necessity from a prior substantive order.
What a consequential order is not is an order the effect of which is to vary the prior order for property settlement. It is not possible to suggest that even the slightest variation of the original order is a consequence of it. What is being submitted in this appeal is that the original order should be amended not as a consequence of that order itself, not as a necessary follow up of that original order but rather as a consequence of events which have happened in the market place since that order was made rendering the facts on which it was based no longer accurate.
Discussion
It appears to the court that the real heart of the present dispute between the parties is that the wife considers that the Suburb B property is valued at much more than it was when the final orders were made. It would appear that this factor, coupled with the husband’s contumelious and ongoing failure to comply with the terms of the final order over a five year period has entrenched the wife’s appetite to pursue her application pursuant to section 79A of the Family Law Act 1975 (Cth) to set aside the final orders.
On any view the events of the last five years have been demonstrably ruinous for these parties. That they have not been able to see a way forward is to their mutual disadvantage.
At first blush and while not a concluded view, it would appear that the husband is in a relative positon of financial strength compared to the wife and that as a consequence of his ongoing failure to comply with his various obligations until the eleventh hour (particularly those relating to payment of the settlement sum, payment of spousal maintenance and his child support obligations under the terms of the Binding Child Support Agreement), he has set out to inflict significant damage to the wife, given the apparent parlous state of her financial circumstances.
During the course of the hearing, on 4 March 2022, the wife’s counsel identified that there were three options for the court to consider in determining the parties competing applications:
(a)That the husband’s application for interim relief be dismissed and orders made as sought by the wife;
(b)That the wife’s application for interim relief be dismissed and orders made as sought by the husband; or
(c)That the parties competing interlocutory applications be dismissed and the court proceed to list the wife’s application for substantive relief pursuant to section 79A of the Family Law Act 1975 (Cth).
The court accepts that these are the available alternatives.
From the outset it must be observed that it does not appear that the orders sought by either of the parties are consequential orders. Each of the parties proposals meaningfully differ from the final order that was made, particularly in relation to the debts that are to be repaid from any sale of the property. Accordingly, the court does not consider that this is an appropriate source of power for the parties to rely upon for the relief that they each presently seek.
The next route to be considered by the court is the enforcement provisions contained in the order itself (paragraph 1.10), or the enforcement power in the Act.
While the parties agree that the husband is in default of his obligation to pay land tax, this is not the only factor to be considered in all of the circumstances of this case.
The more pressing difficulty with the competing applications for each of the parties at this interlocutory stage is that they do not agree on the interpretation of the final orders and accordingly there is a dispute between them as to the obligations created by virtue of the terms of the final order and the extent to which they have each complied with and/or defaulted upon the same.
As previously identified in these reasons the terms of the order over which the parties have a divergence of interpretation are as follows:
(a)Paragraph 1.1 and 1.2 of the order;
(b)Paragraph 1.8;
(c)Paragraph 1.10; and
(d)Paragraph 1.12.
During the course of the hearing of the present dispute, neither of the parties pressed the court to determine the interpretation dispute that exists between them at this stage.
Accordingly, the disputes as to the interpretation of the final order are questions for another day when the substantive section 79A application of the wife is finally determined. The fact that the final order is incapable of easy and uncontroversial interpretation is however a matter of significant concern to the court for present purposes.
As identified by the Full Court of this court in English and English (1986) FLC 91-729 at 75,295:
Undertakings or orders, if they are to be the subject of contempt proceedings, must be clear and unambiguous in their terms. This matter is put succinctly by Miller, Contempt of Court at p. 243 in the following terms:
‘The necessity of determining whether there has been a factual breach of an order or undertaking on the part of the body or person brought before the court clearly demands that the terms of the order itself be expressed in clear and unambiguous language. Insofar as possible that person would know with complete precision what it is he is required to do or abstain from doing. The requirement of clarity has been admirably stated in a leading American case, where it was said of an injunction that:
‘[It] should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, where practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling on him for inferences or conclusions about which persons may well differ.’
In the nature of things the degree of clarity and specificity which is capable of being achieved will vary according to the subject matter of the proceedings.’ ”
While this difficulty is likely the determinative consideration in weighing whether the court exercise the power to enforce the final order, it also disposes of the wife’s submission that the source of power to order the sale of the Suburb B property is found in the provisions of paragraph 1.10 of the final order.
There are however further difficulties which speak against the court exercising the power to enforce the final order.
Added to the difficulties in this case, is the muddying of the waters created by the conduct of each of the parties over the lengthy passage of time since the final order was made, as previously identified in these reasons. In circumstances where the wife pleads sections 79A(1)(a)-(d) Family Law Act 1975 (Cth) as the basis of her application to set aside the final order, it is readily understood that any determination of the wife’s section 79A application, is likely to involve consideration of whether the parties conduct contributed to the current circumstances.
Where both parties make serious allegations about the other party’s misconduct, obfuscation and/or breach of the final order, again, those questions are best determined at any trial relating to the competing section 79A applications, rather than the court taking steps which have the effect of prejudicing the substantive claims of the parties without the benefit of fulsome evidence and cross examination.
In particular, if the court was to take up the wife’s proposal and order the sale of Suburb B property, and she is ultimately unsuccessful in her application to set aside the final orders, then it would appear that the husband’s position in wishing to maintain the final order and have the opportunity to retain the Suburb B property as originally intended by the final orders, would be irrevocably prejudiced.
A further complicating factor at this interlocutory stage, is that the wife on the one hand wishes to enforce the terms of the final order, whereas her substantive application is for the entire final order to be set aside. From the court’s perspective, these two positions appear incongruous.
During the course of the hearings on 1 March 2022 and 15 March 2022, the wife’s Counsel made persuasive submissions in favour of the sale of the Suburb B property. The basis of these submissions was a matter of simple arithmetic.
From the wife’s perspective, she submitted there is an inevitability about the sale of the Suburb B property when all of the liabilities are considered and weighed against the husband’s evidence as to his ability to refinance the property, discharge the existing liabilities and stave off a sale.
The wife’s counsel identified that the present liabilities total an amount of $2,875,000 as follows:
(a)The sum of approximately $2,400,000 is required to discharge the current mortgage liabilities registered over the Suburb B property.
(b)The sum of approximately $30,000 is required to discharge the arrears of council rates, water rates and emergency services levies for Suburb B property.
(c)The sum of approximately $350,000 is required to discharge the monies owed to Ms J.
(d)The sum of approximately $95,000 is required to discharge the arrears that have accumulated in land tax for the Suburb B property.
In addition, the wife identified that the husband also owes an amount to a “[Mr M]” of somewhere in the vicinity of $330,000 - $350,000, which is supported by a caveat registered over the Suburb B property as referred to in Notation N and paragraph 4 of the final order.
From the wife’s perspective, if the amounts owing to Mr M are to be added to the amounts to be paid by the husband (presumably by way of a refinance of some sort) when the Suburb B property is transferred into the husband’s sole name, then the total monies which will need to form part of any refinance would total between approximately $3,205,000 and $3,225,000.
The wife asserts that in circumstances where the only evidence that the husband has put before the court as to his ability to refinance the property is an “indicative” loan approval in the amount of $2,800,000, it would appear that on any objective view of the situation, the husband is simply unable to achieve his intended ends of retaining the Suburb B property.
From the court’s perspective a further compounding difficulty is that it is not clear to the court how the husband funded the amounts paid as a consequence of the orders made on 1 February 2022, which totalled $93,460.37, as the husband has not deposed to how these funds were sourced. If these funds were borrowed by the husband, that would put the total monies which would form part of any refinance at somewhere between approximately $3,298,460 and $3,318,460.
In response to the wife’s submission as to the husband’s inability to refinance the borrowings secured by the Suburb B property and discharge all of the liabilities owing, the husband asserted that he has only been able to obtain an indicative loan approval at this stage, as the wife has refused to allow any access to the Suburb B property by a valuer arranged by either himself or any financial institution for the purposes of obtaining finance approval.
At the conclusion of the hearing on 1 March 2022, the court ultimately made an order with the mutual consent of the parties to allow the husband to obtain a valuation of the Suburb B property for the purpose of any refinance.
The court is unaware as to whether this order has been taken up by the husband, nor if taken up, whether there is now a clearer picture as to the husband’s refinancing capacity relative to an updated valuation of the Suburb B property.
While the arithmetic arguments made by the wife appear compelling, as they go to the heart of whether the husband is ultimately able to comply with the terms of the final order, they are not the only factor to be considered, and nor are they determinative of the present application. Rather, those factors are more likely to be relevant considerations when determining the parties competing section 79A applications and any subsequent section 79 determination if the final order was to be set aside.
It is for all of these reasons, that the court is of the view that:
(a)The power to enforce the final orders should not be exercised at this stage; and/or
(b)It would be inappropriate to make any consequential orders to give effect to selected terms of the final orders that each of the parties have cherry-picked from the final order to promote the interlocutory end that they each presently seek.
In all of those circumstances and when coupled with the lengthy trajectory of the litigation to this point, the court is of the view that this matter should be expedited towards a final hearing of the parties competing section 79A applications.
Accordingly, the orders that appear at the commencement of these reasons are made.
I certify that the preceding one hundred and ninety-eight (198) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 5 April 2022
3
2