Gitane and Velacruz (No. 3)
[2007] FamCA 1277
•30 October 2007
FAMILY COURT OF AUSTRALIA
| Gitane & Velacruz (No. 3) | [2007] FamCA 1277 | |||||
| FAMILY LAW – PROPERTY SETTLEMENT - Property orders - s79A(1A) principles in relation to “implied consent” to setting aside or variation of orders – whether “implied consent” or qualified consent given – s79A(1)(b) and (c) exercise of discretion – new orders pursuant to s79. | ||||||
| Family Law Act 1975 (Cth) | ||||||
| McCabe and McCabe (1995) FLC 92-634 at 82,370 | ||||||
| APPLICANT: | Mr Gitane | |||||
| RESPONDENT: | Ms Velacruz | |||||
| FILE NUMBER: | HBF | 851 | of | 1997 | ||
| DATE DELIVERED: | 30 October 2007 | |||||
| PLACE DELIVERED: | Sydney | |||||
| JUDGMENT OF: | The Hon. Justice Rose | |||||
| HEARING DATE: | 10 & 11 October 2007 | |||||
| REPRESENTATION | ||||||
| COUNSEL FOR THE APPLICANT: | Mr L Williams | |||||
| SOLICITOR FOR THE APPLICANT: | Cann Legal | |||||
| COUNSEL FOR THE RESPONDENT: | Mr M Foster | |||||
| SOLICITOR FOR THE RESPONDENT: | McVeity & Associates | |||||
Orders
Orders pursuant to section 79A(1A)
That Order 9 made 5 August 1998 is varied by omitting the amount of “$120,000.00” and substituting the amount of $31,260.00.
That Order 12 made 5 August 1998 be set aside.
Pursuant to section 79(1)
That the husband pay to the wife the sum of $31,269.00 on or before 29 February 2008.
Enforcement warrant filed 17 August 2005
That the enforcement warrant filed on behalf of the wife on 17 August 2005 be stood over generally with liberty to the wife to restore it to the list appropriately amended for mention upon seven (7) days written notice being given.
Costs order pursuant to Certificate of Taxation dated 15 March 2000
That the husband pay to the wife the sum of $1,250.35 being the outstanding costs pursuant to the Certificate of Taxation dated 15 March 2000 on or before 29 February 2008.
General
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Rose delivered this day will for all publication and reporting purposes be referred to as Gitane and Velacruz
| FAMILY COURT OF AUSTRALIA AT HOBART |
File number: HBF851 of 1997
| MR GITANE |
Applicant
And
| MS VELACRUZ |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings, by his Application for Final Orders filed 31 March 2006, Mr Gitane (who for convenience I shall refer to as “the husband”) sought orders pursuant to s79A(1) and s 79A(1A) that Orders 9 to 12 of the property settlement orders made by consent on 5 August 1998 (“the consent orders”) be set aside.
In addition, the husband sought orders which were that the respondent, Ms Velacruz (who for convenience I shall refer to as “the wife”) be restrained from taking any steps to cause the sale of the husband’s property situate at and known as … (“the [T] property”); that the wife pay to the husband the sum of $25,000.00 implicitly by way of property settlement; that the wife remove, at her expense, a writ of fieri facias lodged against the title to the T property; and that the wife pay the husband’s costs.
It became clear that the husband sought a variation of Orders 9 and 13 of the consent orders pursuant to which he owed the wife $31,259.27 and that Order 12 be set aside. The amount of $31,259.27 is the balance owing after allowing for liability that the husband had to pay to the wife the $120,000.00 pursuant to Orders 9 and 13 less the amount of $88,740.73 which she received following the sale of property to which subsequent reference will be made. In addition to the amount of $31,259.27 the husband has owed the wife interest pursuant to the Family Law Rules as well as monthly payments of $1,000.00 in accordance with Order 12.
During the course of the opening by counsel for the husband and subsequently during the hearing, as well as in his submissions, counsel emphasised that the husband’s case was principally founded on the ground set forth in s 79A(1A) and to a lesser extent the grounds contained in ss 79A(1)(b) and (c).
Counsel for the husband informed me that in relation to the principal ground relied upon by him in support of his application was that set forth in s79A(1A) in that there had been either express or implied consent to those orders being set aside as a result of conversations between the parties and the subsequent conduct of the wife to which reference will be made.
The wife opposed the orders sought by the husband.
By her Response filed 26 April 2006, the wife sought orders that the husband’s application be dismissed with costs on an indemnity basis.
At the commencement of the hearing before me, the wife’s enforcement warrant remained pending. It was filed on 17 August 2005 pursuant to which the wife claimed to be owed $102,633.72 by the husband.
It was agreed by counsel for the parties that the enforcement warrant be determined by me in these proceedings.
During the course of his helpful submissions, counsel for the wife informed me that whereas his client had sought an order for payment by the husband of $57,941.35 (outstanding costs order of $1,250.35; balance payable pursuant to the consent orders being $31,266.00; and statutory interest of $25,425.00), the wife no longer sought interest payable or the amounts payable pursuant to Order 12 of the consent orders. Consequently, the amounts sought to be paid by the husband to the wife were the outstanding costs order of $1,250.35 and balance owing pursuant to the consent orders of $31,266.00, totalling $32,516.35.
It was also submitted on behalf of the wife that in the event that relevant consent orders were set aside a substituted property settlement order that was just and equitable would require the payment by the husband to the wife of $120,000.00. That submission was later modified by counsel.
The parties cohabited for a period of approximately eight years which commenced in April 1989.
The parties married in July 1989 and finally separated on 27 February 1997. They have lived separate and apart from each other continuously since that time.
The marriage was dissolved by decree nisi made according to the Casetrack system on 5 January 1999 which became absolute on 6 February 1999.
The husband is 54 years of age. He is on a disability pension.
The wife is 47 years of age. The wife is employed as an administrative officer.
There is one child of the marriage, namely K who is 17 years of age having been born in August 1990 (“the child”). The child was 6 ½ years of age when the parties separated. The child has lived with the wife continuously since that time.
The wife has a daughter from a prior relationship, C born in September 1982. C lived with the parties throughout the period of their cohabitation.
On … January 2003 the wife remarried. The wife and her husband, Mr F, together with the child live in their jointly owned home in northern Tasmania.
C has been living independently since 2003.
The affidavit evidence of each of the parties included material that related to settlement proposals. I informed counsel that I have not read that material. It obviously should not have been included in the relevant affidavits. Counsel agreed. There is no suggestion by counsel that the proposals led to an agreement between the parties. Accordingly, the matter proceeded on that basis.
Historical background
The following are brief relevant historical matters.
In 1987 the husband suffered a workplace injury. The husband then ceased employment.
In 1995 the husband received $422,895.00 net by way of damages for the injuries suffered by him.
During the period between October 1995 and the parties’ separation, the precise or approximate date was not given in evidence, the parties purchased the property at T for $105,000.00. The purchase price was funded by the husband from the damages received by him.
During the period between October 1995 and the parties’ separation, the precise or approximate date was again not given in evidence, the parties purchased a property at R in the State of Queensland (“the Queensland property”) for $183,000.00. It was funded by a mortgage loan of $45,000.00 from the National Australia Bank and the balance, together with costs and expenses of about $14,000.00 by the husband from the damages received by him. Apparently, the agreed value of $165,000.00 at the time of the consent orders could not be subsequently achieved.
On 29 July 1999, orders for sale were made.
On 22 January 2000 the Queensland property was passed in at auction.
On 7 February 2000, orders for sale were made requiring the husband to join in the sale of the Queensland property for $140,000.00.
On 15 March 2000 the sale of the Queensland property was completed. The wife received the net proceeds of sale of $88,740.73. That amount had been acknowledged by the parties as being in partial satisfaction of the husband’s liability to pay the wife $120,000.00 and potentially further amounts pursuant to the consent orders.
On 14 April 2000 injunctive relief was granted against the husband together with orders varying existing contact orders.
In or about May 2001 a transfer (“the transfer”) was signed by the wife whereby she transferred to the husband her interest in the T property.
On 28 May 2001 the transfer was registered.
In December 2004 orders were made in the Federal Magistrates Court permitting the child to travel with the wife to South America.
On 17 August 2005 an enforcement summons was filed on behalf of the wife in relation to the consent orders which required the husband to pay to the wife the balance of the amount of $120,000.00 together with other monies.
On 6 February 2006 an interim stay of proceedings was ordered.
On 7 August 2006 Benjamin J dismissed the application of the husband seeking orders pursuant to s79A.
On 7 February 2007 the husband’s appeal in respect of the orders made 7 August 2006 was allowed and the order made by Benjamin J was set aside.
Section 79A(1A)
Counsel for the husband submitted that the ground upon which the husband placed most reliance was that contained in the provisions of s79A(1A).
Section 79A(1A) provides the Court with a discretionary power to make an order to vary or set aside property settlement orders “on application by a person affected by an order made by a court under s79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made”. The last limb of s79A(1A) is that the Court also is given a discretionary power “if it considers appropriate, to make another order under s79 in substitution for the orders so set aside”.
Consequently, for the applicant to successfully rely upon s79A(1A) the following must take place:
(a)Establish that the application is made by “a person affected” by the relevant order made under s79. There is no issue in that regard.
(b)The Court must make a finding that there has been, or is “consent of all the parties to the proceedings in which the order was made” for the purpose of varying or setting aside the relevant order.
(c)The Court may exercise its discretion to vary or set aside the relevant order.
(d)The Court may then, in the exercise of its discretion, and should it consider it “appropriate” to do so, make another order under s79(1) in substitution for the order or orders set aside.
It is implicit that any order made pursuant to s79(1) must be “just and equitable” and the discretionary power to make such an order is not affected by the use of the work “appropriate” in s79A(1A).
It is not disputed that for the purpose of making a finding of “consent of all the parties to the proceedings” consent may be express or implied, although it may have been subsequently withdrawn.
The Full Court in McCabe and McCabe held that “there is no reason to doubt that parties can expressly or by their conduct consent to the discharge of prior orders so as to enable the court to make a fresh property order”.[1]
[1] McCabe and McCabe (1995) FLC 92-634 at 82,370
I was also assisted by a review of authorities in the first instance decisions of Sommerville and Sommerville[2] and M and M[3].
[2] Sommerville and Sommerville (2000) FLC 93-042
[3] M and M (2006) FamCA 1453 per Carmody J.
The case for the husband is that the wife expressly consented to the husband’s proposal that he no longer make payment of the balance of $120,000.00 payable by him to her pursuant to the consent orders and that the wife transfer to the husband interest in the T property pursuant to Order 13 of the consent orders. The balance owing to the wife was and remains the sum of $31,260.00 after allowance is made for the receipt by her of $88,740.73 being the net proceeds of sale of the Queensland property and excluding the further monthly amount of $1,000.00 pursuant to Order 12 of the consent orders.
It is also submitted in the alternative that the wife, by her conduct, gave her implied consent to the husband’s proposals.
There is no dispute that on 29 April 2001 the parties had a telephone conversation between themselves. That telephone conversation was recorded by the husband. The conversation was in Spanish.
An affidavit was sworn by Ms P on 18 January 2007 and filed 26 April 2007. Ms P’s occupation is given as “interpreter, translator and educational consultant” with the necessary proficiency in English and Spanish languages. Her affidavit qualified her as an expert in her occupation. Annexed to Ms P’s affidavit is a transcript of her translation of the conversation from Spanish to English of the relevant tape.
The wife in her Affidavit sworn and filed 7 May 2007 provided evidence of corrections to the translation being omissions from the transcript provided by Ms P. Counsel for the husband informed the Court that his instructions were to accept the amendments to the translation provided by the wife. Accordingly, Ms P was not required for cross-examination, nor was the wife cross-examined in relation to her evidence in that regard. In those circumstances I accept the evidence of Ms P with the amendments to her translation provided by the wife. I find that the translation of the telephone conversation between the parties so amended presents an accurate translation of that conversation from Spanish into English.
It is clear from the amended translation of the telephone conversation between the parties that a number of topics were covered by them. Those topics included, amongst other things, the consent sought by the husband from the wife to enable him to grant a mortgage for the purpose of obtaining a loan to pay his outstanding legal fees, and in addition for the wife to transfer to him her interest in the T property for that purpose.
Other topics also discussed included the non-payment by the husband of the balance of monies payable by him to the wife pursuant to the consent orders and a possible sale of the house.
I have concluded that the amended translation of the telephone conversation between the parties established that the wife gave express qualified consent to the transfer by her to the husband of her interest in the T property and the waiver by her of the liability which the husband had to pay her the balance of monies payable pursuant to the consent orders.
The qualification to the wife’s consent was represented by her statement to the husband that she would seek legal advice.
The relevant parts of the amended translation of the telephone conversation between the parties which support my finding as to the express qualified consent given by the wife are as follows:
“[Husband] – Yes! I want your signature so that I can mortgage the house, to see if this house can be saved and have something left for the kids, because it appears obvious to me that my lawyer wants to take the house and attempt to sell it for anything, to get the money that I owe to him, and the only solution would be to mortgage the house and pay the lawyer the money, because otherwise the lawyer said to me that he will take the house from under my feet and sell it for whatever amount he could get, maybe to make less of what was made in the Queensland property, because in Queensland the loss was $50,000 on the sale of the house and I believe that here it is possible that the loss could be much more.” (page 1, telephone call transcript)
“…and it says ‘I transfer to this person and place a signature’.” (page 2)
“[Wife] – But I am not doing absolutely anything. You have not seen me demanding or telling you anything, that you have to give me all, according to the court…” (page, 2)
“[Wife] – I absolutely left you in peace, I said: look, for me, he can keep living in the house; I am not going to fight him for anything…
[Husband] – No! But it is because I received a letter, when I asked you for your signature, through the lawyer I asked you for the signature so that I could mortgage the house, so that I could pay the lawyer. Now, we can see if this is his doing or is your refusal, because the letter said that you refused totally to sign until you are paid completely in full. I said to my lawyer: ‘When the house was sold in Queensland ….
[Wife] – But, what you said to me in that letter is that, because I have been paid in full. No, you have not paid me everything! You have not paid me everything!
[Husband] – No, […], I know …
[Wife] – What was organised in the court, I have not received all. The court did not pay it all.
[Husband] – I know that […]!” (page 3)
“[Husband] – The letter that I requested to be sent to you, the only thing that I requested was to ask you if you could give me your signature of transference of the house so that I could mortgage it. That was my only request!” (page 3)
“[Wife] – Do you think that you can repay the mortgage if you mortgage the house?” (page 4)
“[Wife] – And, do I have to sign that mortgage?” (page 4)
“[Husband] – No! What I am saying to you is: Sign for me the transference form so that I can mortgage the house, because if the lawyer is saying to you to sign the mortgage, how can I put it, is to commit yourself into the mortgage.” (page 4)
“…Then, the only thing that I am asking is for your signature for the transference so that I can mortgage the house.” (page 4)
“…I only want to finish this peacefully, and to stay in peace. I do not care if I have to make sacrifices, but I do this because I want that something comes back to you afterwards, I do not want anything, do you understand me? And I do not care how many years it will take, the only thing that I need is your signature and nothing more.” (page 5)
“[Wife] – And I say that I have not been paid everything.” (page 5)
“[Wife] – I said to my lawyer, anyway, he has not paid everything, because that was not the agreement in court and I am not telling [the husband] to get out of the house or sell it and give me the money. I am not saying absolutely anything.” (page 5)
“[Husband] – What do you gain out of all this? […], the on [sic] thing that I can say is this: I need the peace as much as you do and you know […] I am in a bad difficult economic situation. I believe you know that well, my situation is pretty tight. If, as the lawyer said to you in the letter, everything has been paid to you, I know […], not everything has been paid to you, because for the price that the house in Queensland has been sold, that was the real reason for which the money was short to pay you everything and you know very well that was the reason. The only thing that I want to say is that I want to organise all this in the best possible way, because I know that if your layer [sic] says to you to litigate for the rest of the money, well this may have to go back to court and as I say is going to cost again. Don’t wait!” (page 6)
“[Husband] - …The case may open up again because they need to look into it. I said ‘I do not want anything else, I only want this peacefully. And this is the reason I am calling you […] and saying to you:’ Look, the only thing I need is that signature of transference and I can mortgage the house and I knowingly will end up with a big debt that I have to repay.” (page 7)
“[Wife] – I am not going to take anything to the court. I am not going to take you to the court, for you to pay me the rest of the money because if that was the case I would already had done so a long time ago. [emphasis added]
[Husband] – I know […], I know it!
[Wife] – The only thing that I say is: do whatever I do; I will do it for [K] and not for you. [emphasis added]
[Husband] – I know it.
[Wife] – Absolutely I would no nothing for you, only for [K], O.K.! But I do not know yet, I have to ask and know, another thing, if I am going to sign for you this transference of that house, I want before you do anything and everything to authorise the bank that is going to lend you the money that they give me information about it … because if I not nothing else to do with it, I want to make sure that one day [K] will have something.
[Husband] – […], you will have nothing to do with the mortgage because the transference is only with the Lands Department.
[Wife] – Yes! But I have to be sure that you are not lying to me and all that you are going to do, and that the bank is lending you the money for you to pay the lawyers, and that all is good for everybody, I would like to know it, because I got the right to know it.
[Husband] – Look! I can let you know…
[Wife] – If I sign to you the transference, I am renouncing to all the rest of the money that you have to pay me, O.K.? [emphasis added]
[Husband] – I know that […], I know it, and another thing is, if you would like to do that through your lawyer, I …
[Wife] – Maybe not! I may not do that through the lawyer, because I am not going to pay him more money than I have already paid.” (pp 8-9)
“[Wife] – My lawyer has never let me down and I informed him, my lawyer never does anything of his own doing, everything that my lawyer did was in consultation with me, giving me advice and I am right now not saying to you that I am going to pay the lawyer to act or do, because if I call the lawyer it is because I know why I do it.
[Husband] – Uhum…
[Wife] – That is why I am not going to do blindly, I am going to consult with my lawyer first, O.K.!
[Husband] – Yeah!
[Wife] – so, I will talk to my lawyer and afterwards I will call you and let you know what I have decided.” (page 9)
“[Wife] – But, at the same time, you should know that it is in part your salvation because I believe that having a person on top of you demanding a payment all the time, it must be very horrible, and not only that, you are not going to loose anymore because if you have only enough to pay the lawyers, you do not have to worry about my debt, and for me, even if you do not believe it, money is the last thing that worries me and you know better than anybody else, but there are circumstances in life that one has to be hardened and see that money sometimes comes in handy…if it were not like that I probably would be in a difficult position and you would not worry about it because I know how you were! So for now, leave it as it is, I am going to think about it and talk with my lawyer. Anyway, I am not going to say ‘yes’ or ‘no’ now, and as soon as I know what the lawyer thinks about it and what I must do, I will ask you to bring me the papers and that will be my decision, O.K. [emphasis added]
[Husband] – Yeah! I really appreciate that you at least have listened to me […], and thank you very much.” (page 10)
In accordance with the agreed chronology the wife signed the transfer to the husband of her interest in the T property in about May 2001. I accept the wife’s affidavit evidence that prior to the wife signing the transfer she had sought advice from her solicitor.
It is not a matter of dispute that the wife’s solicitor made arrangements for the husband to collect the transfer from his office. That subsequently occurred, and the husband lodged the transfer for registration.
On 28 May 2001 the transfer was registered. The husband became the sole registered proprietor of the T property.
I accept the evidence of the wife, corroborated by her solicitor, that prior to the wife signing the transfer she sought and received advice from her solicitor that a transfer by her to the husband of her interest in the T property “would not affect my entitlement to pursue [the husband] for full payment of the monies still due to me”. Whether that legal advice was sound is of course another matter and not relevant to the issues in these proceedings.
During cross-examination the wife conceded that when the husband received the relevant transfer he “obviously thought it was over”. It was implicit in that evidence and the tenor of it that the wife was referring not only to the transfer by her to the husband of her interest in the T property, but also a relinquishment by her of her demand for the husband to pay the balance of the monies payable pursuant to the consent orders.
During the course of her oral evidence, the wife stated, and I accept, that from the time that she received the legal advice last referred to, she had in mind that she could demand payment by the husband of the balance of the monies payable to her pursuant to the consent orders. Neither the wife nor anyone on her behalf informed the husband orally or in writing of her view that payment by the husband could be demanded by her whenever she desired to do so. Indeed, the wife’s oral evidence was that she chose to remain silent until it was convenient to her to do otherwise.
The husband proceeded to grant a mortgage for the purpose of security for a loan to enable him to pay outstanding legal costs.
The first notice that the husband subsequently received from the wife that she considered he was still liable for the payment of the balance of the monies payable by him to her pursuant to the consent orders was given in her Affidavit sworn 30 July 2004 and filed 2 August 2004 (“the wife’s 2004 affidavit”).[4]
[4] Exhibit 4
The wife’s 2004 affidavit was filed in support of her application filed at about the same time in which she sought orders enabling the child to accompany her for about five weeks to see her family in South America.
It is not disputed that in the period of a little in excess of three years from the wife signing and permitting the registration of the transfer upon legal advice to the filing of the wife’s 2004 affidavit:
(a)No verbal notice was given by the wife to the husband of her intention to possibly seek payment by him to her of the balance of monies payable to her pursuant to the consent orders at any future time.
(b)No written notice was given by the wife or on her behalf in relation to the last mentioned matter.
(c)The registration of the transfer was not opposed by the wife notwithstanding the terms of Orders 9 and 13 of the consent orders.
(d)The unconditional consent given by the wife upon legal advice to the registration of the transfer.
(e)The wife did not oppose the husband granting a mortgage which was registered on the title to the T property. That registration not only reduced the equity in that property but gave the mortgage priority to the wife so far as the legal estate was concerned.
(f)A caveat was not lodged on the title to the T property to protect the wife’s arguable equitable interest.
It is submitted on behalf of the husband that the matters to which I have referred in paragraph 65 give rise to a finding that the wife provided an implied consent in variation of Orders 9, 12 and 13 of the consent orders to the effect that liability to the husband to pay the wife $120,000.00 less the amount of $88,740.73 received by her, being the net proceeds of sale of the Queensland property, was discharged.
During the course of his interesting submissions, counsel for the wife submitted that a review of past judgments to which he referred demonstrated that implied consent may only be found to have been given to the setting aside or variation of property settlement orders due to a subsequent reconciliation of the parties to the relevant proceedings and/or substantial financial transactions including, but not limited to, the intermingling of funds or the joining in property transactions. Counsel submitted that as those facts did not arise in these particular proceedings, implied consent could not be found to have been given.
Counsel for the wife also submitted that the general law in relation to the unenforceability of a promise or a gift, indeed agreements without consideration, are unenforceable and do not have legal validity, except in the limited circumstances in which promissory estoppel applies.
I raised with counsel for the husband for consideration other equitable defences apart from promissory estoppel such “waiver” and “laches” which necessarily do not include “valuable consideration” by their very nature. Counsel for the husband conceded that indeed was the situation.
However, with respect to counsel for the wife, it seems to me that consideration of equitable defences and/or relief available at equity, as well as the law of contract, whilst raising interesting questions of law, are not restrictive of the application of the principle that consent to the variation or setting aside of property settlement order may be implied from the conduct of the parties.
It is clear from the authorities to which counsel referred that whilst the principle was not in doubt, it was applied or otherwise having regard to the particular facts in a given case. For example, I was not referred to any authority for the proposition that implied consent could only arise should parties have reconciled. Given the principle that arises for consideration, that is not surprising. It is the relevant conduct of the parties in a particular case that must be considered.
In certain circumstances equitable defences or relief may be relevant for consideration with other relevant matters as to whether or not a finding should be made that implied consent of the parties had been given. Indeed, I was not referred to any reported or unreported judgment to the contrary of that proposition.
I was helpfully referred to the review of relevant authorities in the judgment of M and M.[5] Whilst the unreported judgment in R and R[6] referred to in M and M centered upon resumption of cohabitation, that matter did not derogate from the principle to be applied should the facts attract that principle. Coleman J held in relation to the interpretation of s 79A(1A) that:
“The absence of any consideration or conclusion in relation to financial matters as indicative of the attention required by the section, being implied or attributed, is in my view, a fatal flaw in the reasoning.” [emphasis added]
[5] M and M (2006) FamCA 1453 per Carmody J.
[6] R and R (EA69 of 2001) per Coleman J (unreported)
I respectfully follow and apply that dicta.
As was referred to and summarised in M and M, following R and R, “financial transactions could have been found to have been consistent with either an intention to disregard a previous property settlement or to act in accordance with it”.
In my view, the fact that the wife continued to privately hold an intention to perhaps seek payment by the husband of the outstanding monies at some indeterminate time in the future does not amount to a withdrawal of implied consent as she retained that intention exclusively to herself. Indeed, the wife entered into a significant transaction with the husband by transferring to him her interest in the T property, notwithstanding that he had not complied with the condition contained in Order 13 for that purpose, namely the payment of $120,000.00. The husband owed the wife $31,266.00 together with the monthly amount of $1,000.00 in terms of Order 12. In the financial circumstances of the wife at that stage, the outstanding amount and the transfer of her interest in real estate were significant matters so far as her rights pursuant to the consent orders were concerned, as well as her overall financial position. There is no suggestion on the evidence that the wife at that point had improved her financial circumstances to such a degree that being owed that amount and the transfer of her interest in real estate were relatively insignificant matters.
Consequently, I find that the wife provided an implied consent to variation of Orders 9 and 13 of the consent orders to the effect that the husband was no longer liable pursuant to those orders to pay her the balance of monies payable, namely in this particular case the sum of $31,260.00. Implicitly, that implied consent was also given to the setting aside of Order 12.
My reasons for so concluding are as follows.
(a)The qualified consent given by the wife in the telephone conversation between the parties, to which I have referred.
(b)The conversion of that qualified consent to an unqualified one upon the wife receiving and acting upon the legal advice that she received, whereby she signed the transfer, made it available to be received by the husband, the unopposed registration of the transfer, as well as the other matters detailed in paragraph 65 hereof which were not a matter of controversy.
However, the establishment of the ground relied upon pursuant to s 79A(1A) does not represent an end to the matter. As was emphasised by the Full Court in Morrison[7] the exercise of discretion to vary or set aside the relevant orders then arises for consideration.
[7] Morrison (1995) FLC 92-573 at 81,673.
In the absence of being referred to other authorities, I take guidance from Morrison as to relevant matters for the purpose of consideration of the exercise of discretion notwithstanding the particular ground relied upon in Morrison related to the “miscarriage of justice” ground in s 79A(1)(a). Those relevant matters include but are not limited to[8]:
[8] ibid at 81,673-81,675.
(a) The lack of any or any proper representation or advice.
(b) Concealment or ignorance of relevant financial matters.
(c) Undue persuasion or unequal bargaining power.
(d)All of the circumstances surrounding the making of the consent orders and the circumstances of the parties since that time for the purpose of determining “whether the justice of the case calls for an exercise of discretion”[9] albeit in context of an application to extend time to review orders.
(e)Whether there has been a substantial period of delay in bringing the relevant application.
(f)Whether a party had “re-ordered his property affairs”.[10]
(g)Whether there is a substantial issue to be raised.
(h)Whether there is an absence of hardship or injustice which cannot be compensated as to orders as to costs.
(i)Consideration of doing justice between the parties.
(j)Finality of litigation.
[9] ibid at 81,673.
[10] op cit
Certain of the above matters are relevant to these proceedings.
It was submitted on behalf of the wife that the discretionary power provided in s 79A(1A) should not be exercised due to a combination of a mere transfer by the wife to the husband of her interest in the T property without having provided a release to the husband of his obligation to pay the balance of monies payable pursuant to the consent orders, the retention by the wife of her intention to claim payment of those monies from the husband and the fact that the wife raised the matter of the outstanding liability of the husband in the wife’s 2004 affidavit.
I do not accept those submissions and will exercise the discretion to vary the Orders 9 and 13 of the consent orders so as to discharge the husband’s liability to pay the balance of the monies payable by him pursuant to those orders for the following reasons:
(a)The actions of the wife following the receipt by her of legal advice resulted in her signing the transfer, making it available for the husband to lodge for registration, the registration of the transfer without any terms or conditions, and the failure by the wife to preserve her interest by the lodgement of a caveat.
(b)Transfer of the wife’s interest in the T property was a material transaction to her detriment having regard to the terms of Orders 9 and 13 of the consent orders.
(c)The action by the husband whereby he mortgaged his interest in the T property albeit, that to do so enabled him to provide security for a loan to satisfy outstanding legal costs.
(d)The wife’s silence for a considerable period of time, namely a little over three years, and implicitly not evidencing any intention to seek recovery of the balance of monies payable to her pursuant to the consent orders.
(e)The failure by the wife to make an application for enforcement of the consent orders for payment to her of the balance of monies outstanding by the husband at the time when she filed her application in 2004 seeking orders to enable the child to travel with her to South America.
(f)The evidence of the wife that she was only motivated to take further steps for seeking recovery of the monies payable to her pursuant to the consent orders due to a comment made to her by the child subsequent to orders having been made to enable him to travel with her to South America.
(g)The absence of evidence of hardship to the wife should the discretion be exercised in favour of the husband. No submission was made in that regard.
Grounds relied upon pursuant to section 79A(1A)(b) and (c)
During the course of his submissions, counsel for the husband informed me that did not desire to make any further submission that supplemented his case outline document filed 9 May 2007.
These further grounds relied upon by the husband can be briefly determined.
In essence, the husband relies upon impracticability as referred to in s79A(1)(b) as the Queensland property sold for considerably less than the agreed value as at the time of the consent orders. Consequently, the net proceeds of sale were less which had the practical effect that they were insufficient to satisfy the husband’s liability pursuant to the consent orders to pay to the wife $120,000.00.
In those circumstances, the husband was faced with having to sell the T property and/or realise his BT Investment monies to enable him to pay the balance payable by him to the wife pursuant to the consent orders. The husband did not take any further steps in that regard or seek to borrow further monies so that his liability pursuant to the consent orders could be fully discharged.
The principles to be applied are set forth in the Full Court’s judgment in Cawthorn and Cawthorn.[11] It is clear from those principles that changed circumstances that may make it “unjust for the order or part of the order to be carried out” are insufficient by themselves in that a successful applicant must still be able to persuade the court that “it is impracticable for the order or part of the order to be carried out”.
[11] Cawthorn (1998) FLC 92-805.
It is obvious that the husband’s financial circumstances were such that at the time of the sale of the Queensland property he was still in a position to pay the balance of monies payable to the wife notwithstanding the hardship that may have caused him.
Accordingly, in view of the principles to be applied as set out in Cawthorn[12] and the undisputed facts as referred to in the previous paragraph, I have concluded that the ground relied upon by the husband pursuant to s79A(1)(b) has not been established.
[12] ibid
The husband also relies upon s79A(1)(c).
Whilst the parties were unable to sell the Queensland property at the agreed value as at the time of the consent orders, nonetheless the Queensland property was subsequently sold albeit it at a much lesser amount.
The relevant default in these particular proceedings is not in relation to the sale of the Queensland property as it was in fact sold, and there was not any term or condition in the consent orders that made it mandatory for the sale to only be at $165,000.00 or perhaps even a greater amount, but the default was exclusively that of the husband. That default arose because he has not paid to the wife the full amount of his liability of $120,000.00. The husband had the means to do so but chose not to take any further action as he was desirous of avoiding having to sell the T property or perhaps realise his BT Investment monies.
In my view the husband is unable to rely upon his own default which could have been avoided for the purpose of relying upon s79A(1)(c). Indeed, I was not referred to any reported or unreported judgment to the contrary.
I rely upon the principles as stated in Monticone and Monticone[13]. The circumstances to which I have referred as set forth in the case outline document filed on behalf of the husband on 9 May 2007 do not represent “cogent considerations of justice founded upon the conduct and circumstances of the parties”.[14]
[13] Monticone and Monticone (1990) FLC 92-114 at 77,755.
[14] Rohde and Rohde (1984) FLC 91-592; Monticone, ibid.
Consequently, I am satisfied that the ground relied upon pursuant to s 79A(1)(c) has not been established.
Orders pursuant to section 79
It was of course accepted by counsel for the parties that in the event that the ground of consent was established pursuant to s 79A(1A) and the discretionary power to set aside or vary relevant property settlement orders was exercised, then it was necessary for me to proceed to the next stage. That stage is whether or not it is appropriate to make new orders for property settlement having regard to the provision of s 79(1), s 79(2) and s 79(4) which are required to be just and equitable.
It is well established that for the purpose of deciding whether or not to make orders that are just and equitable pursuant to s 79, generally that requires findings of fact in relation to the following:
(a) The property of the parties at the time of the hearing.
(b)The financial and non-financial contributions of the parties including the contribution to the welfare of the family in the role of homemaker and parent.
(c)Relevant matters pursuant to s 79(4)(e) and s 75(2).
(d)Whether proposed orders are “just and equitable”.
The property of the parties
It is common ground that the property of the parties is as set forth in the wife’s “amended outline of case” as follows:
“Current assets Husband’s equity in his house ($260,000 less $35,000 mortgage) $225,000 Wife’s equity in her house (half of $274,000 les [sic] half of the $83,000 mortgage) $95,500 Wife’s car $5,000 Wife’s super $11,960 Husband’s car - (chattels ignored) - Sub Total $337,460 Current debts Wife’s half share of credit card and ANZ loan $4,275 Total $333,185”
Contributions of the parties
There is little evidence in chief from the parties in relation to their respective financial and non-financial contributions.
I make the following findings in relation to the parties’ financial and non-financial contributions including contribution to the welfare of the family in the role of homemaker and parent.
The husband
No evidence was given by the husband in relation to his initial financial contributions. Accordingly, I infer that his property was negligible.
It emerged during the course of his oral evidence whilst being cross-examined that for the period from marriage until the parties separated, he was not engaged in paid employment.
The husband had been injured in a workplace accident in 1987 and had not been engaged in paid employment since that time other than casual work on an intermittent basis.
I accept the husband’s evidence that his sole source of income from commencement of cohabitation which was in April 1989 until the parties separated some eight years later were social security benefits until the husband received his damages in 1995, thereafter until June 1999 income from funds invested and subsequently a disability pension.
There was vague evidence of money retained from the sale of property.
The husband’s further oral evidence was that the wife carried out the domestic work as well as the care of the child whilst he assisted her. Evidence of the husband’s contributions in that regard were unchallenged and I make findings accordingly.
In October 1995 the husband made a financial contribution represented by the net damages that he received for his personal injuries in the sum of $422,895.00. The husband’s evidence is that he applied those funds in the purchase of the T property for $105,000.00; holiday to Australia for family relatives at a cost of $20,000.00 to $25,000.00; purchase of the Queensland property for $197,000.00 approximately inclusive of legal costs and expenses; purchase of a motor vehicle for $34,000.00; and the balance utilised to meet living expenses and renovation costs to the T property; and investment with BT Investments.
Subsequently, the husband derived income from the investment with BT Investments until the capital was fully utilised.
Since 8 June 1999 the husband has been in receipt of a disability pension.
The husband’s financial contributions, to which I have referred, were not the subject of any challenge. I make findings accordingly.
Subsequent to the separation of the parties the child has lived continuously with the wife. The husband has cared for the child on average during each second weekend and part of school holidays until 2002. The husband has not seen the child since that time.
The husband has paid child support at the rate of $10.00 per fortnight which has been increased since July 2007 to $11.00 per fortnight.
I find that the husband has made a contribution as a homemaker and parent since separation and provided child support for the child as outlined in his evidence which I summarised in the previous paragraph.
The wife
The wife’s affidavit evidence in relation to her contributions was unchallenged.
In summary, no evidence was given by the wife of her initial financial contributions. Accordingly, I infer that such property that the wife had at that time was negligible.
During the period of cohabitation the wife made a contribution to the welfare of the family in carrying out domestic work in and about the home and caring for the child.
There is a lack of evidence given by the wife in relation to paid employment in which she was engaged during the period of cohabitation. Accordingly, I find that a contribution of that type was not made by the wife as undoubtedly it would have been set forth in her affidavit or in oral evidence by leave had she made financial contributions in that regard.
At the time the parties separated the child was approximately 6 ½ years of age. The child has lived continuously with the wife since that time. The wife has been the only homemaker and parent for the child since the parties separated with the exception of a period of about five years during which time the husband had the care of the child during alternate weekends and for a period unspecified during school holidays.
The wife has had the almost full financial responsibility for the child given the meagre amount of child support provided by the husband at the rate to which earlier reference has been made.
Evidence was given by the husband of a savings account that he established in trust for the child with a building society …. The relevant passbook and related building society documents are in evidence before me.[15]
[15] Exhibit 7.
The passbook establishes that the account was opened with a cash deposit of $20.00 on 8 February 2006. The last recorded balance is on 4 October 2007 in the sum of $565.30. There have not been any withdrawals.
The evidence of the wife, which I accept, is that she had not been able to make withdrawals. The wife did not have access to the passbook. However, a letter from a building society officer at the Burnie branch dated 7 May 2007 makes it clear that she has had authority to make withdrawals since 29 March 2007 which attract a transaction fee of $2.50. No withdrawals have occurred to date.
Assessment of contributions of the parties
I have assessed the contributions of the parties to their net property in the proportions of 60% in favour of the husband and the remaining 40% in favour of the wife.
My reasons for doing so are as follows.
I have assessed the respective contributions of the parties at the date of separation as being 70% in favour of the husband and 30% in favour of the wife. My reason for doing so is that notwithstanding the contributions made by each of them in their respective spheres which were essentially represented by the wife’s contribution as homemaker and parent well exceeding that of the husband and the husband’s minor contribution in that regard but making the greater financial contributions as the provider of income, nonetheless his financial contribution made approximately two years prior to the parties separating was significant indeed.
That financial contribution of the husband was represented by the net damages he received from personal injuries in the amount of $422,895.00. Inferentially (there not being any evidence to the contrary) the parties’ financial circumstances immediately prior to receiving that amount of money were modest. The amount so received represented an enormous improvement in the parties’ financial situation.
The manner in which that amount was applied was for the parties’ joint benefit represented by the acquisition of two parcels of real estate and otherwise expenditure of monies including the establishment of an investment as set forth in paragraph 5 of the husband’s Affidavit sworn and filed on 26 April 2007 which was not challenged.
However, in the period of 10 ½ years since the parties separated the contributions made by the wife have greatly exceeded those made by the husband.
At the time of the parties’ separation the child was 6 ½ years of age. Since that time the wife has made the substantial contribution in the role of homemaker and parent given that the husband has not made any contribution in that regard since during 2002.
In addition, the wife has provided the financial support for the child with negligible financial contributions made by the husband. I refer to my earlier findings in that regard.
Consequently, I have assessed the contributions of the wife in the period since the parties separated as being greater than those made by the husband and adjusted the assessment of the respective contributions of the parties as at the time of separation by 10% in favour of the wife.
The result has been the assessment of the parties’ contributions to which I have made earlier reference, namely 60% in favour of the husband and 40% in favour of the wife.
Relevant section 75(2) matters
I make the following findings in relation to relevant matters pursuant to the provisions of s 75(2).
The husband is 54 years of age and is of unsound health. That is implicit from the husband receiving a disability pension. However, in addition there is medical evidence before me, albeit aged in part. That evidence includes a medical report dated 15 April 1998 provided by Dr S, specialist occupational physician which is annexure “RG2” to the Affidavit of the husband sworn and filed 26 April 2007.
The report of Dr S noted that the husband had suffered head injuries as a result of a workplace accident on 22 December 1987. Detailed medical history was given including opinions expressed by other specialists. Dr S’s opinion was that the husband continues to suffer neck pain and decreased range of movement in his neck. The husband also continued to have numbness in the left hand. However, the husband’s mental state had improved.
Annexure “RG3” to the same affidavit is a medical imaging report dated 31 May 2006 prepared by Dr M, radiologist. Dr M concluded that the husband suffers from degenerative disc disease which restricted right side neck movement and radicular pain in the left upper limb.
The husband’s affidavit evidence is that he experiences pain nearly every day. To provide him with supported relief the husband uses a back and neck brace for an hour a day, attempts to keep mobile, and takes pain relief and anti-inflammatory medication.
The evidence in relation to the husband’s health which I have summarised was not the subject of any challenge. I accept both the expert evidence and that of the husband and make findings accordingly.
The wife is 47 years of age. I find that the wife’s health is good, absent any evidence to the contrary.
The husband’s sole source of income is his disability pension in the sum of approximately $250.00 per week.
The husband has the property and financial resources set forth in paragraph 99.
During the course of his submissions, counsel for the wife conceded that the husband currently lacks work capacity. I find that the husband does lack the capacity for employment although he may have potential for part-time employment at some indeterminate future time given the tertiary education which he has completed … as set forth in paragraph 14 of his Affidavit sworn 23 April 2007, and in particular the total “… jobs” he has performed “from time to time” referred to him in the same affidavit.
The wife’s income is an average of $714.00 per week gross derived from her salary.
The wife has the property and financial resources set forth in paragraph 99. The wife has further financial resources represented by the indirect benefit that she receives from the husband’s joint ownership of their home at B and the income derived by him from his employment which amounts to $167.00 per week gross. He has applied that income towards meeting household expenses and assisting the wife in the financial support of the child. They have income for discretionary spending.
Subsequent to the separation of the parties the wife has completed tertiary education which includes Certificate III in computer studies and Certificate IV in business administration with TAFE.
The wife is currently employed on a full-time basis as an administrative officer with M. I find that the wife has the capacity to be engaged in employment in her current occupation.
The wife has the care of the child who is 17 years of age.
Each of the parties has commitments to support themselves as set forth in their respective financial statements. Whilst the parties have a joint duty to maintain the child, the reality is that the child is maintained by the wife and her financial resources and the negligible amount of child support paid by the husband although there is the potential to draw upon the building society account which has a modest balance to which earlier reference has been made. The husband is not eligible for superannuation entitlements. He receives a disability pension.
The wife has relatively small superannuation entitlements referred to in paragraph 99.
There is no issue that the consent orders had the effect of altering the property interests of the parties as follows.
In that regard, the description of property that is given together with amounts by way of value or otherwise are drawn from the evidence before me which is uncontroversial.
The husband:
(a) The T property - $133,500.00.
(b) Astina motor vehicle - $18,500.00.
(c) Money on investments with BT Investments - $27,799.73.
(d) AMP Deferred Annuity - $9,014.95.
(e)Balance of proceeds of sale of X property - $6,000.00.
(f)Furniture and contents - $2,425.00.
(g)National Australia Bank account (estimate) - $150.28.
(h)National Australia Bank account for rental and expenses on the Queensland property (estimate) - $1,066.29.
(i)Westpac account (estimate) - $24.89.
(j)Total - $198,481.14[16] less the liability referred to below.
The wife:
(a) Queensland property net proceeds of sale - $88,740.73.
(b)Balance of monies payable by husband to wife pursuant to consent orders - $31,260.00.
(c)Total - $120,000.73.[17]
[16] Affidavit of husband filed 26 April 2007, paragraph 3.
[17] Affidavit of wife filed 7 May 2007, paragraph 30.
Pursuant to the consent orders a declaration was made whereby each party was solely entitled to the remainder of property including superannuation entitlements in his or her possession respectively.
Child support which has been paid by the husband subsequent to the separation of the parties has been negligible. In that regard, I refer to previous findings.
Assessment of relevant section 75(2) matters
I have determined to make an adjustment in favour of the wife of 10% of the parties’ net property to reflect the weight I give to relevant s 75(2) matters for the following reasons.
There is no doubt that the husband is in a disadvantageous position compared with the wife so far as their respective health, income earning capacity and financial resources are concerned.
However, in my view the weight that I attribute to the matters referred to in the last paragraph is exceeded by the weight that I attach to the matters set forth in the following paragraph.
The wife has the ongoing responsibility for the care, supervision and upbringing of the child, notwithstanding that he is 17 years of age, at least until he attains the age of 18 years or more likely when he completes his secondary education. The exercise of that responsibility is in the context that at this important stage of the child’s life the husband does not have any direct or indirect involvement, influence or support for the child either emotionally or personally so far as his educational progress is concerned.
In addition, the wife realistically is providing all of the ongoing financial support for the child, which given his age is obviously substantial notwithstanding the lack of detailed evidence in that regard. The only provision that is made by the husband by way of child support is the sum of $11.00 per fortnight which is patently negligible. There is no proposal by the husband to increase the level of child support other than by reference to the current balance in the building society account to which earlier reference has been made. The credit balance in that account as at 4 October 2007 is $565.30 reflecting fortnightly deposits by the husband of $15.00. In the circumstances that pertain to a 17 year old child, the amount in that account is clearly insignificant.[18]
[18] Exhibit 7; CCH (vol 2) Handbook “Tables”, costs of maintaining children (a guide only).
In addition, the husband has failed to comply with all of his liabilities that arose pursuant to the consent orders. In that regard, the balance of the monies payable by him to the wife is the sum total of:
(a)Balance of monies payable pursuant to Orders 9 and 13 of the consent orders ($31,260.00).
(b)$1,000.00 per month for the period 5 December 1998 to 5 May 2001 - $30,000.00.
(c)Total =
(d)Together with interest on the outstanding amounts for the abovementioned period pursuant to the Family Law Rules.
I have isolated the period 5 December 1998 to 5 May 2001 in view of the provision in Order 12 of the consent orders and my findings as to the qualified consent given by the wife to the husband in their telephone conversation subsequently implemented without qualification, the subject of earlier findings.
Conclusion
It is clear from my findings as to the contribution-based entitlements of the parties and the adjustment in favour of the wife having regard to the weight to be given to relevant s 75(2) matters that the result would be that the net property of the parties of $333,185.00 be divided between them equally.
However, that approach is subject to further consideration that I must give as to whether an equal division of the net property of the parties between them would result in orders that are just and equitable.
As has been emphasised by the Full Court in at least two reported judgments over many years, the trial Judge must consider the practical implications of proposed orders for property settlement rather than being solely focused on a theoretical result reflecting particular percentages of the net property of the parties.[19]
[19] Preece and Preece (1981) FLC 91-048 at 76,404; Elsey and Elsey (1997) FLC 92-727 at 83,799.
For the purpose of implementing that consideration, an equal division between the parties of their net property of $333,185.00 would have the following economic consequences:
The wife retains and receives:
(a) Wife’s equity in her house of $95,500.00
(b) Wife’s car of $5,000.00
(c) Wife’s superannuation of $11,960.00
(d) Lump sum payable by husband of $58,407.50
(e) Total = $170,367.50
(f) Less - wife’s credit card and ANZ loan of $4,275.00
(g) Balance = $166,092.50
So far as the husband is concerned, the economic consequences of an equal division of the parties’ net property would be as follows:
(a)Husband’s equity in his house of $225,000.00 - $5,000.00 = $230,000.00.
(b)Less lump sum payable to wife of $58,407.50.
(c)Balance = $171,592.50.
The economic consequences of a division of the net property of the parties to which I attach much weight is that for practical purposes the husband would be compelled to sell his only significant asset, namely the equity he has in the T property, as the husband does not have the borrowing capacity to borrow and repay $58,407.50.
It is clear to me given that the husband is a disability pensioner, and does not have a current capacity to earn income albeit there may be some improvement in the foreseeable future. He is unlikely to supplement the modest assets he otherwise has. I make those observations given that the husband was not cross-examined in relation to his current or future borrowing capacity. No doubt experienced counsel did not do so is for the reasons set forth in this paragraph.
There is a certain irony to the consideration of the lump sum, if any, that should be paid by the husband to the wife in accordance with a property settlement order that is just and equitable given that I have determined to vary certain of the consent orders due to the husband’s successful application pursuant to s79A(1A). However, as I emphasised to counsel during the hearing, in the event of the husband being successful with that application, I am required to consider what other order or orders pursuant to s 79 should be made. That in turn requires me to apply the principles that have been well-established for that purpose to which earlier reference has been made.
Consequently, setting aside or varying past property settlement orders does not and cannot inhibit me in the findings that must be made for the purpose of exercising the wide discretionary power pursuant to s79 to make orders that are just and equitable.
Indeed, due to my concerns regarding the range of possible orders that may be made against a background of modest net property, I provided ample opportunities for the parties to confer with a view to reaching a compromise and exhorted them and their legal representatives to utilise those opportunities to the full. Regrettably, an agreement was not reached. It is the undoubted right of the parties to seek a judicial determination mindful of the pitfalls of litigation.
In the unusual circumstances of this hearing, I do not consider that it would be just and equitable to make an order that the husband pay to the wife $58,407.50 which is the net result of an equal division between the parties of their net property.
My reasons are that the husband is a disability pensioner with no current capacity to earn income notwithstanding, the possibilities for some income earning activity in the future. The husband’s borrowing capacity is also limited. His significant property is his equity in the T property which is subject to a mortgage he granted in 2001 as security for a loan to allow him to pay his outstanding legal costs. The husband’s health is unsound.
The obvious effect of an order for payment of $58,407.00 by the husband to the wife will be the necessary sale by him of the T property, barring unforeseen improvement in his financial circumstances.
The wife for her part, is in a much more secure financial position than the husband having regard to the various matters previously set forth. In addition, the wife through her counsel, submits that the payment the wife seeks to be made by the husband pursuant to orders for property settlement is the sum of $31,266.00 being the balance of monies payable by him pursuant to Orders 9 and 13 of the consent orders. Counsel for the wife submitted that she does not seek an order which would reflect either or both of the monthly payment of $1,000.00 required pursuant to Order 12 of the consent orders or interest payable in accordance with the Family Law Rules for any relevant period.
Whilst the husband may struggle to raise the further amount of $31,266.00, I consider that it is just and equitable that an order be made in those terms as the concept of “just and equitable” must apply to both parties and not just to the husband.
I propose to provide what I consider a reasonable period of time for the husband to re-organise his finances in an effort to avoid selling the T property to satisfy the orders that I will make. I will provide the period of four (4) months for that purpose taking into account that lending institutions are likely to be closed over the Christmas/New Year period.
Certificate of taxation of costs dated 15 March 2000
Pursuant to this certificate of taxation following a costs order the husband remains liable to pay to the wife the sum of $1,250.35. That amount remains outstanding.
Counsel for the husband submitted that his client was prepared to discharge this liability at the rate of $20.00 per month.
The amount has been outstanding for approximately seven and a half years. I do not consider it reasonable for the husband to pay at the instalment rate that his counsel submitted on his client’s instructions. If necessary, the husband will have to increase the amount of finance he will need to raise to meet the consent orders by the amount of the outstanding costs or otherwise, in default, the husband will have to pay the outstanding amount upon the realisation of his property.
Consequently, I will stand over the wife’s enforcement warrant filed 17 August 2005 for mention with liberty to restore it to the list upon seven (7) days written notice being given. That will enable the wife to proceed on an amended basis in the event of the husband defaulting in compliance with the orders that I will make.
I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose
Associate:
Dated: 30 October 2007
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Remedies
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Res Judicata
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Appeal
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Costs
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Intention
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