FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENLEY & GARRETT and GARRETT & HENLEY | [2010] FMCAfam 314 |
| FAMILY LAW – Parenting – enforcement of orders – change of parenting orders sought by respondent – respondent brings enforcement of spousal maintenance and child support orders – application for receiver. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 80, 117 Federal Magistrates Court Rules 2001, rr.1.03, 1.05, 16.05, 25B.02 Family Law Rules 2004, rr.20.06, 20.46, 20.47 Child Support (Assessment) Act 1989, s.117 |
| Ex parte Farmer’s Fertilisers Corp Ltd (1916) 16 SR (NSW) 645 Rice & Asplund (1979) FLC 90-725 Penfold v Penfold (1980) 144 CLR 311 Oliver & Oliver [2010] FMCAfam 220 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 |
| Applicant: | MR HENLEY |
| Respondent: | MS GARRETT |
| File Number: | BRC 88 of 2008 |
| Judgment of: | Coates FM |
| Hearing date: | 2 March 2010 |
| Date of Last Submission: | 25 March 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 31 March 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondent: | Ms Anderson |
| Solicitors for the Respondent: | Anthony Black Family Law |
| Applicant: | MS GARRETT |
| Respondent: | MR HENLEY |
| File Number: | BRC 88 of 2008 |
| Judgment of: | Coates FM |
| Hearing date: | 2 March 2010 |
| Date of Last Submission: | 25 March 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 31 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Anderson |
| Solicitors for the Applicant: | Anthony Black Family Law |
| Solicitors for the Respondent: | Self Represented |
ORDERS
That pursuant to Rule 20.46(1) of the Family Law Rules, Mr S and
Ms M be appointed as Joint Receivers (“the Receivers”) of the income and property of Mr Henley (hereinafter referred to as “the husband”) so as to give effect to Orders 1, 2 and 5 of the Orders of Federal Magistrate Coates made 22 September 2009, together with any Orders for costs payable by the Husband.
That pursuant to Rule 20.47(3) of the Family Law Rules the Receivers are authorised to do (in the Receiver’s names or otherwise) anything that the husband may do.
That pursuant to Rule 20.47(4) of the Family Law Rules the Receivers’ powers operate to the exclusion of the powers of the Husband during the receivership in relation to compliance with Orders 1, 2 and 5 of the Orders of Federal Magistrate Coates made 22 September 2009.
That the Receivers’ remuneration be paid from the estate of the husband and such remuneration be calculated in accordance with the standard rates effective from time to time of [K] Chartered Accountants (Qld).
That there be no security given by the Receivers.
That the husband co-operate with the Receivers and shall:-
(a)Provide such documents, financial records, bank statements / books, tax records and any other financial document as required by the Receivers within twenty-four (24) hours of request by the Receivers;
(b)Provide full details to the Receivers within twenty-four (24) hours of request of the names and address of any employer or entity controlled by the husband which has received remuneration within the last seven (7) years;
(c)Provide…
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- Case
- [2010] FMCAfam 314
- Decision Date
CaseChat Overview and Summary
The court found that the appointment of joint receivers was necessary to ensure Mr Henley complied with the previous orders, and granted Mr S and Ms M the authority to act as joint receivers. These receivers were authorised to perform any actions Mr Henley could undertake and their powers were to operate exclusively during the receivership period. Mr Henley was required to co-operate fully with the receivers, providing them with necessary documents and information within specified timeframes. The receivers’ remuneration was to be paid from Mr Henley’s estate and calculated according to the rates set by [K] Chartered Accountants. Ms Garrett was granted the right to apply for the lodgement of Mr Henley’s passport if he failed to comply with the orders. The court also granted Ms Garrett sole parental responsibility for the child, ordered that the child live with her, and set out arrangements for shared school fee costs and visitation times with the father. Finally, the court ordered Mr Henley to pay Ms Garrett’s legal costs from the initial application up until the enforcement proceedings.
The court made several orders to enforce compliance with previous directives, manage Mr Henley’s assets, and ensure the welfare of the child. The joint receivers were tasked with administering Mr Henley’s income and property to ensure compliance with specific orders. Mr Henley was directed to provide full co-operation and financial information to the receivers, and his powers were restricted during the receivership. Additionally, the court finalised the living arrangements for the child, awarding sole parental responsibility to Ms Garrett, and set out the terms for shared school fees and visitation. Finally, Mr Henley was ordered to pay Ms Garrett’s legal costs from the initial application through to the enforcement proceedings.
Orders
Orders of the court
1.
That pursuant to Rule 20.46(1) of the Family Law Rules, Mr S and
Ms M be appointed as Joint Receivers (“the Receivers”) of the income and property of Mr Henley (hereinafter referred to as “the husband”) so as to give effect to Orders 1, 2 and 5 of the Orders of Federal Magistrate Coates made 22 September 2009, together with any Orders for costs payable by the Husband.
2.
That pursuant to Rule 20.47(3) of the Family Law Rules the Receivers are authorised to do (in the Receiver’s names or otherwise) anything that the husband may do.
3.
That pursuant to Rule 20.47(4) of the Family Law Rules the Receivers’ powers operate to the exclusion of the powers of the Husband during the receivership in relation to compliance with Orders 1, 2 and 5 of the Orders of Federal Magistrate Coates made 22 September 2009.
4.
That the Receivers’ remuneration be paid from the estate of the husband and such remuneration be calculated in accordance with the standard rates effective from time to time of [K] Chartered Accountants (Qld).
5.
That there be no security given by the Receivers.
6.
That the husband co-operate with the Receivers and shall:-
(a) Provide such documents, financial records, bank statements / books, tax records and any other financial document as required by the Receivers within twenty-four (24) hours of request by the Receivers;
(b) Provide full details to the Receivers within twenty-four (24) hours of request of the names and address of any employer or entity controlled by the husband which has received remuneration within the last seven (7) years;
(c) Provide any other information sought by the Receivers which relate to income or property of the husband.
7.
That the Receivers shall submit accounts to the following parties on a monthly basis:-
(a) Ms Garrett;
(b) Mr Henley.
8.
That the wife have liberty upon giving fourteen (14) days written notice to apply, including an Application that the husband’s passport be lodged with this Honourable Court until the husband’s obligations created by Orders 1, 2 and 5 of the Orders made 22 September 2009 are complied with.
9.
That the Orders made by consent in the Family Court at Brisbane on
8 July 2004 relating to the child [Z] born [in] 1996 are discharged.
10.
That the child [Z] live with the mother, Ms Garrett.
11.
That the mother have sole parental responsibility for the child.
12.
That upon the mother’s enrolment of the child [Z] at [S] School, the mother and father share equally the costs of school fees.
13.
Upon enrolment, the mother is to inform the father in writing of such enrolment and to supply him with a copy of each account for fees when received.
14.
That the child [Z] spend time with the father at such times as agreed between parties and after consultation with the child.
15.
That the husband shall pay the wife’s costs of and incidental to the proceedings commenced by the wife’s Application on 4 January 2008 up and until orders were made on 22 September 2009 fixed in the sum of $43,012.46.
16.
That the husband shall pay the wife’s costs of and incidental to the enforcement and parenting proceedings up to and including 31 March 2010 fixed in the sum of $7,260.00.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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