Huish and Huish

[2008] FMCAfam 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUISH & HUISH [2008] FMCAfam 68

FAMILY LAW – Enforcement of orders for property – payment of interest – was loss attributable to actions of husband – interest and damages – application of s.117B.

Family Law Act 1975, ss.4, 79, 117B

Cross v Beaumont [2007] FamCA 123
JEL v DDF [2001] FamCA 907
Jones & Jones (1990) FLC 92-143

Applicant: MS HUISH

Respondent: MR HUISH

File Number: SYC 3850 of 2007

Judgment of: Altobelli FM

Hearing date: 19 November 2007

Date of Last Submission: 19 November 2007

Delivered at: Sydney

Delivered on: 7 February 2008

REPRESENTATION

Solicitor Advocate for the Applicant: Mr Twigg

Solicitors for the Applicant: Adrian Twigg & Co

Counsel for the Respondent: Mr Jackson

Solicitors for the Respondent: Wight & Strickland

ORDERS

1. The parties are to forthwith do all things necessary to implement the orders for property settlement made 30 January 2004 save as otherwise provided in these orders.

2. Out of the husband’s share of the funds to which he is entitled to receive pursuant to the orders made 30 January 2004, he is to first pay to the wife the following sums:

   (a)$3,500.00; and

   (b)interest on $3,500.00 calculated in accordance with the Family Law Rules 2004 and calculated from 30 March 2004; and

   (c)$5,000.00; and

   (d)interest on $5,000.00 calculated in accordance with the Family Law Rules 2004 and calculated from 30 June 2004.

3. Leave is granted to the parties to re-list this matter before me at any time prior to 15 March 2008 as regards interpretation, implementation and enforcement of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Huish & Huish is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3850 of 2007

MS HUISH

Applicant

And

MR HUISH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This application is brought by the wife, Ms Huish. In effect it is all about compensating her for the loss she claims she sustained as a result of an alleged breach by her husband of orders for alteration of property interests made by the Family Court of Australia on 30 January 2004. The respondent is Mr Huish, the husband. He is a carpenter by trade. The applicant argues that losses she has suffered were as a result of acts or omissions of the husband, and that they are recoverable pursuant to s 117B of the Family Law Act. The husband denies that any losses that might have been incurred were attributable to any act or omission on his part, and he disputes that s.117B empowers the Court to make the orders sought by the wife.

Background

1. The parties married in 1988, separated on 28 August 2000 after cohabiting for 12 years, and were divorced on 22 April 2003. They have two children, K who is now 16 years old, and M now 12 years old. The mother has now repartnered with Mr L. For all practical purposes, the only asset…