Joans and Singerson and Anor
[2017] FCWA 29
•3 MARCH 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: JOANS and SINGERSON & ANOR [2017] FCWA 29
CORAM: DUNCANSON J
HEARD: 15 NOVEMBER 2017 AND WRITTEN SUBMISSIONS RECEIVED 30 NOVEMBER, 22 DECEMBER 2016 AND 16 FEBRUARY 2017
DELIVERED : 3 MARCH 2017
FILE NO/S: PTW 726 of 2011
BETWEEN: MS JOANS
Applicant
AND
MR SINGERSON
First RespondentAND
MS SINGERSON
Second Respondent
Catchwords:
PROPERTY - Enforcement of orders for property settlement, child support and costs - where the first respondent owns property either jointly or as tenants in common with the second respondent - consideration of impact of orders to enforce upon parties - discretion exercised to enforce
Legislation:
Family Law Act 1975 (Cth) s 105(1), s 106A, s 117B
Child Support (Assessment) Act 1989 (Cth) s 124, s 129
Family Law Rules 2004 (Cth) r 15.47, r 17.03, r 20.07
Category: Not Reportable
Representation:
Counsel:
Applicant: [Ms Kyle]
First Respondent : Self-Represented Litigant
Second Respondent : Mr K Mwende
Solicitors:
Applicant: DCH Legal Group
First Respondent : Self-Represented Litigant
Second Respondent : O'Sullivan Davies
Case(s) referred to in judgment(s):
Duroux v Martin (1993) FLC 92-432
McMillan & McMillan [2016] FamCA 387
Ramsey & Ramsey (No 2) (1983) FLC 91-323
Ramsey and Ramsey (1983) FLC 91-301
W & W and Anor [2016] FCWA 45
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1By her amended application in a case filed 28 July 2016 the applicant, [Ms Joans] seeks to enforce orders made in proceedings between her and the first respondent [Mr Singerson].
BRIEF BACKGROUND
2The parties separated in 2009.
3On 14 March 2013 Acting Judge Jordan made parenting orders by consent. He also made final property settlement orders and child support orders.
4On 8 September 2015 after an appeal, the Full Court made further property orders.
5The first respondent has a one half interest in property with his sister [Ms Singerson], who is the second respondent. The second respondent was joined to the proceedings as she would be affected by the orders sought by the applicant in relation to properties owned by her and the first respondent.
THE ORDERS SOUGHT
The orders sought by the applicant
6The orders sought by the applicant at the hearing on 15 November 2016 were contained in a minute of proposed enforcement orders filed 8 November 2016. The orders now sought by the applicant are contained in her amended minute of proposed enforcement orders attached to her closing submissions filed 16 February 2017.
7The enforcement orders sought by the applicant are, that within four days from the making of the orders the first respondent pay to the applicant the following:-
(a)$122,093 plus interest on this sum calculated from 29 September 2015; and
(b)$2,060.43; and
(c)$2,200; and
(d)$2,200; and
(e)$4,860 plus interest on this sum calculated from 24 November 2016; and
(f)$5,905 plus interest on this sum calculated from 25 February 2016; and
(g)$10,587 plus interest on this sum calculated from 24 November 2016; and
(h)$25,925.
8If the first respondent does not pay any, or all of the amounts referred to above, the applicant seeks an order that the second respondent be appointed sole trustee to sell and/or call in shares and cash resources held by the first respondent, whether jointly with the second respondent, or as a beneficiary, or in any other manner, and that within 21 days the second respondent sell that property.
9In the alternative, the second respondent should notify the applicant if payment of the enforcement sums cannot be made in full from the sale of that property and in that event, the applicant seeks an order that the properties at [Suburb R] be forthwith listed for sale. The applicant seeks an order that she and the second respondent be appointed as joint trustees for the sale of the properties on certain terms of sale as set out in the amended minute.
10Upon the sale of the said properties, after the deduction of necessary expenses, the applicant proposes that 50% of the balance of the proceeds of sale be paid to the second respondent.
11The applicant proposes that the remaining proceeds of sale be paid in order of priority as set out at paragraph 7 above.
12The applicant proposes that the balance then remaining, be placed into an interest bearing account in the name of the first respondent and he be restrained by injunction from withdrawing, or dealing with those funds until:
(a)the order is made by a Registrar of the Family Court of Western Australia for the party/party costs order dated 20 April 2016; and
(b)an order is made in relation to the applicant’s costs application (either ordering costs or dismissing the applicant’s application) in relation to contravention proceedings determined on 14 April 2016; and
(c)an order is made in relation to the applicant’s costs application (either ordering costs or dismissing the applicant’s application) in relation to these enforcement proceedings.
13The applicant now seeks child support modification orders in the following terms:
Pursuant to section 129 of the Child Support (Assessment) Act 1989, paragraph 23 of the Orders dated 14 March 2013 be modified to be read as follows:-
Pursuant to section 124 of the Child Support (Assessment) Act 1989, the first respondent pay lump sum child support to the applicant of $25,925 and the applicant be permitted to draw on the lump sum child support payment to meet the reasonable requirements of [Child A]. [Child A’s] reasonably (sic) requirements are with respect to:-
(a)tuition fees;
(b)extracurricular activities as agreed;
(c)school trips and excursions;
(d)sporting costs including membership fees, school uniform costs and for the purchase of sporting equipment;
(e)school uniform costs;
(f)tuck shop costs; and
(g)any other incidental expenses relating to the schooling and education of the children which routinely appear on the school account.
14The applicant also seeks an order pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) for the execution of documents necessary to give effect to superannuation splitting orders made by the Full Court on 8 September 2015 and related orders.
15The applicant also seeks an order that a costs hearing be listed before me with an estimated hearing time of two hours on a date to be advised.
The orders sought by the first respondent
16The orders sought by the first respondent at the hearing are contained in his response dated 14 November 2016 and were that the said proceedings be vacated and adjourned and the parties participate in professional mediation.
17For reasons given at the hearing the first respondent’s application for an adjournment was refused.
18The orders now sought by the first respondent are contained within his written submissions filed 1 December 2016. Most of those orders now sought do not relate to these enforcement proceedings and were not the subject of evidence at the hearing.
19The first respondent repeats the order previously sought that the enforcement application be vacated and the parties be ordered to participate in professional mediation. The remaining orders sought are as follows:
•[Mr Singerson] be granted permission to update this submission once he is well enough to do so.
•That Justice Susan Duncanson be discharged as the appointed Judge in respect of all current and future proceedings associated with this family.
•That the current enforcement application be vacated.
•That the parties be ordered to participate in professional mediation on a reportable, good faith / genuine basis in respect of the outstanding issues around the Enforcement application.
•Alternatively that a retrial of the current enforcement application be ordered (or at least adjourned to allow for additional hearing days so as to allow the Respondents to comply with the reverse onus of proof that is unjustly exercised against them by the Court).
•That a full retrial of the original financial matters be ordered.
•Prior to the full financial retrial and or any enforcement retrial or adjournment [Ms Joans] be required to make full unredacted financial disclosure dating back 1 July 2008.
•Prior to the full financial retrial and or any enforcement retrial or adjournment [Ms Joans’] long term life / sexual partner [Mr McCrae] be required to make full unredacted financial disclosure dating back 1 July 2008.
•Prior to the full financial retrial and or the enforcement retrial or adjournment the immediate family members of [Ms Joans], being [Mr A Joans], [Ms B Joans] and [Ms C Joans] be required to make full unredacted financial disclosure dating back 1 July 2008.
•That [Ms Joans] be referred to the WA State Department of Public Prosecutions to be prosecuted for repeated perjury.
•That [Ms Kyle] as an Officer of the Court and Barrister in the State of WA be prosecuted for knowingly lying to the Bench of the Family Court of WA on multiple occasions.
•That [Ms Kyle] be referred to the Chief Justice of WA, Wayne Martin QC AO, with the judicial recommendation that [Ms Kyle] be disbarred as a barrister and be further restrained from practicing law as a solicitor.
•That [Ms Haydon] as an Officer of the Court and barrister in the State of WA be prosecuted for knowingly lying to the Bench of the Family Court of WA and the Appeal Bench on multiple occasions in 2011 and 2012.
•That [Ms Haydon] be referred to the Chief Justice of WA, Wayne Martin QC AO, with the judicial recommendation that [Ms Kyle] (sic) be disbarred as a barrister and be further restrained from practicing law as a solicitor.
•That [Mr Deane] be referred to the Chief Justice of WA, Wayne Martin QC AO, with the judicial recommendation that [Mr Deane] be disbarred as a barrister and be further restrained from practicing law as a solicitor.
The orders sought by the second respondent
20The orders sought by the second respondent are contained within her closing submissions filed 22 December 2016 and are as follows:
1Within 14 days, the First Respondent pay to the Applicant such sum as the Court deems due and payable ("the Debt") from his financial resource of $150,000.
2In the event that the Court finds that the Debt is greater than $150,000 ("the Shortfall"), then within 14 days of the date of orders:
(a) the Second Respondent be appointed as sole trustee for the sale of parcels of shares held by [Company K] as trustee for the [Singerson Family Trust];
(b) the Second Respondent be at liberty to nominate the parcels of shares to be sold ("the Nominated Shares");
(c) the Second Respondent do all acts and things and sign all documents necessary to cause the sale of the Nominated Shares; and
(d) upon settlement of the sale of the Nominated Shares, the Second Respondent:
(i)set aside such sum sufficient to pay all costs of sales and taxation consequences; and
(ii)pay or cause to be paid to the Applicant an amount equivalent to the Shortfall.
3The Second Respondent do keep the Applicant informed of the decisions she makes in relation to the sale process of the Nominated Shares.
4The First Respondent do all such acts and things and sign all documents necessary to declare on his relevant taxation return the sale of the nominated shares or follow such advice as directed by the accountant for [Company K] as trustee for the [Singerson Family Trust].
5The Claim and the Response be dismissed.
THE LEGAL PRINCIPLES
21The court’s power to enforce orders under the Act is contained in s 105(1) of the Act, which provides as follows:
Subject to this Part, to 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.
22The court has a discretion to enforce, or to refuse to enforce an order.
23The discretionary nature of enforcement was set out by Thackray CJ in [W & W and Anor] [2016] FCWA 45 at [46] as follows:
The law is well settled that a court exercising jurisdiction under the Act has the discretion to refuse to enforce one of its own orders: Ramsey and Ramsey (1983) FLC 91-301. To this fundamental proposition, I would add the following (albeit noting that no submissions were made about principles governing the exercise of the discretion):
•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 [McMillan & McMillan] [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.
24The Family Law Rules 2004 (“the Rules”) provides as follows:
20.07General enforcement powers of court
The court may make an order:
(a)declaring the total amount owing under an obligation;
(b)that the total amount owing must be paid in full or by instalments and when the amount must be paid;
(c)for enforcement (see rule 20.05);
(d)in aid of the enforcement of an obligation;
(e)to prevent the dissipation or wasting of property;
(f)for costs;
(g)staying the enforcement of an obligation (including an enforcement order);
(h)requiring the payer to attend an enforcement hearing;
(i)requiring a party to give further information or evidence;
(j)that a payer must file a Financial Statement;
(k)that a payer must produce documents for inspection by the court;
(l)dismissing an application; or
(m)varying, suspending or discharging an enforcement order.
Note:For the collection of child support, the court has general powers set out in section 111B of the Registration Act.
Section 117B of the Act provides as follows:
(1)Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:
(a) the date on which the order is made; or
(b) the date on which the order takes effect;
whichever is later, on so much of the money as is from time to time unpaid.
(2)A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first‑mentioned order or may order:
(a) that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or
(b)that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).
25Rule 17.03 provides for the rate of interest payable.
THE AMOUNTS SOUGHT TO BE ENFORCED
$122,078 pursuant to Full Court orders
26On 8 September 2015 the Full Court ordered the first respondent to pay to the applicant the sum of $122,078 within 21 days. Payment was due on 29 September 2015. The applicant seeks interest on this sum from that date to date of payment.
27The first respondent did not dispute that he had not paid the sum of $122,078 to the applicant. His position is that payment of the sum due to the applicant was to correspond with the applicant’s compliance with order 4 of the Full Court’s orders which provide that an amount of $100,000 was allocated to the first respondent out of the applicant’s interest in the [ABC] Superannuation Fund. That order has not been given effect.
28The first respondent suggested, in the alternative, that the applicant should retain her interest in the ABC Superannuation Fund without the allocation ordered by the Full Court and he would simply pay her the balance of $22,078. This was not acceptable to the applicant.
29The orders of the Full Court are clear. Pursuant to order 3 the first respondent was to pay the applicant the sum of $122,078 within 21 days. Order 4 provides for the superannuation split, but it contains no time limit by which that is to occur. Order 3 for payment to the applicant was not stated to be contemporaneous with, or conditional upon order 4. The first respondent may have understood the two orders were related, as submitted by him however, that is not the case. They are stand-alone orders. In these circumstances the first respondent was obliged to pay the sum of $122,078 to the applicant within 21 days regardless of whether the superannuation split had been effected. Having failed to do so, payment is due with interest from 29 September 2015 to date of payment at the rate prescribed by the Rules.
Interest of $2,060.43 on costs order
30On 20 May 2014, the first respondent was ordered to pay the sum of $9,000 to the applicant by way of costs of contravention proceedings. Payment was due within 28 days of the date of the order that is, by 17 June 2014. The first respondent paid the sum of $9,000 to the applicant on 18 November 2016.
31At the hearing the first respondent did not dispute the amount of the costs order was due. He explained he had endeavoured to make payment, but there was some confusion about the trust account details of the applicant’s solicitors. The first respondent disputed the interest sought pointing to his initial attempt to pay the sum due.
32The first respondent said he endeavoured to transfer funds to the applicant’s solicitors’ nominated bank account. His payment did not reach the applicant’s solicitors. At the commencement of the financial year the applicant’s solicitors changed their financial institution. On 30 July 2014 the applicant’s solicitors wrote to the first respondent’s solicitors requesting payment of the sum of $9,000 and they specified the account number into which that was to be paid which differed to the account number previously provided to the first respondent. On 3 September 2014 the applicant’s solicitors wrote to the first respondent requesting payment of the costs order, plus interest and in that letter they explained the reason for the change in the account details. The first respondent explained that the money went “into limbo somewhere” but eventually he tracked it down and received the money back.
33The first respondent acknowledged he received the correspondence dated 3 September 2014 from the applicant’s solicitors, but he said with everything else going on, and the December trial, “it has clearly just fallen into a hole”.
34At the hearing the first respondent offered to make immediate payment of the sum of $9,000. He subsequently made that payment on 18 November 2016.
35The issue remains whether the first respondent should pay interest. I accept his evidence that he attempted to pay the costs order, but payment did not reach the correct account of the applicant’s solicitors. I give the first respondent the benefit of the doubt as to any confusion which arose by reason of the change of the account to which payment ought to have been made. Since receiving the applicant’s solicitors’ correspondence dated 3 September 2014 however, the first respondent was aware of the correct account and ought to have taken steps to pay the costs order promptly. He did not do so. Although the first respondent was preoccupied with the ongoing proceedings, payment ought to have been made.
36I find that interest is payable. It should be paid for the period from 3 September 2014 until 18 November 2016. I calculate that amount to be $1,612 as set out below:
Period
Days in period
RBA cash rate
Rate of interest under r 17.03
Annual interest
Interest in period
From 3/09/2014
to 31/12/2014119
2.50%
8.50%
$765.00
$249.41
From 1/01/2015
to 30/06/2015180
2.50%
8.50%
$765.00
$377.26
From 1/07/2015 to 31/12/2015
183
2.00%
8.00%
$720.00
$360.99
From 1/01/2016 to 30/06/2016
181
2.00%
8.00%
$720.00
$357.04
From 1/07/2016 to 18/11/2016
140
1.75%
7.75%
$697.50
$267.53
INTEREST PAYABLE ON $9,000 PRINCIPAL
$1,612.23
Single expert fees
37The applicant made two payments of $4,400 to Walker Wayland, the jointly instructed single expert witness to value the business of the [Company W] and [Company C]. The first respondent has not paid a 50% share of those amounts. In evidence the first respondent explained that he had contacted his former solicitors, to whom he had paid funds for valuations. He said it appeared on face value he had not paid and, if not, he could pay.
38The first respondent thought he had paid invoices for valuations of property to M3 Property Strategists on the basis that the applicant would pay the invoices from Walker Wayland. The applicant explained that was not the case as the amounts were different and each party was to pay one half of each of the accounts from each of the valuers.
39No order was made for payment of the single expert witness’ fees, but the applicant said Magistrate Sutherland stated that each party would pay half of the cost of valuations paid for by the other. The applicant relies on r 15.47 which provides that parties shall be jointly responsible for the expert’s fees.
40 The M3 Property Strategists invoice dated 25 February 2013 for the applicant’s share of the account became Exhibit 12. I accept the applicant paid her share of the M3 Property Strategists accounts and the first respondent is responsible for one half of the cost of the Walker Wayland accounts.
41In his closing submissions the first respondent submits he is yet to check invoices to see if any payments have been paid and he would “update the Court in due course if payments have been made”. The first respondent has not provided an update. Upon the evidence and in the absence of any further information from the first respondent I find that two amounts of $2,200 are payable by him to the applicant.
Child B’s school fees $10,587
42Paragraph 23 of the orders dated 14 March 2013 provides that pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) the parties each pay one half of the children’s reasonable requirements with respect to a variety of educational and related expenses.
43[Child B] attended at [School A]. Child A was formerly educated at School A, but as discussed below moved to [School B] at the commencement of the academic year in 2015. The applicant relied on the transaction listing showing expenses and payments in relation to the children’s attendance at School A which became Exhibit 7. The applicant explained and I accept that the school provided her with that transaction listing.
44The first respondent questioned the source of this document and its accuracy. He did not dispute that he had not paid School A fees. He said he had always been willing to pay the fees, but the applicant’s solicitors had not provided him with relevant invoices. In evidence the first respondent said upon the receipt of the invoices, he would pay the sum due to School A.
45At the hearing it was not established that all School A invoices had been provided to the first respondent. Counsel for the applicant undertook to provide them. In his closing submissions the first respondent says on 24 November 2016 the applicant’s solicitors provided him with an incomplete set of invoices.
46The first respondent submits the missing early 2015 School A invoices would show payments made by him to the school prior to him being blocked from the school portal and would detail if student withdrawal fines were levied in respect of Child A being removed from the school without prior notice.
47Line items 106 and 107 of the transaction listing shows two payments made by the first respondent to School A on 28 January 2015 in the sums of $4,569 and $9,180. There is no reference to any student withdrawal fines being levied in respect of Child A’s removal from school.
48I accept the applicant’s evidence as to the transaction listing and the sum due. In terms of the transaction listing the amount paid by the applicant (excluding boarding which was not covered by the orders) was $59,041. The amount paid by the first respondent was initially said to be $42,867. The applicant calculated to equalise the parties, the first respondent would have to pay her, the sum of $8,087.
49The applicant subsequently corrected the figures. The applicant referred to an entry at line item 74 on the transaction listing, which was a payment of $5,000, said to have been made by the first respondent, but was in fact paid by her, being the cost of a trip for Child B to [an overseas university]. (This too was not covered by the orders.) The effect of this was that the first respondent had in fact paid $5,000 less.
50To calculate equal shares of the School A costs, it is necessary to add together the amounts actually paid by the parties and then divide by two. The first respondent has paid $37,867, which when added to the amount of $59,041 paid by the applicant, brings out a total of $96,908. When, divided by two, that brings out an amount of $48,454 which is the amount each party ought to have paid. The first respondent has actually paid $37,867 leaving a balance due by him to the applicant of $10,587.
51I am satisfied upon the evidence of the applicant that she has not sought to recover any amounts which are not covered by the orders. Although the first respondent says he has not received all of the invoices, the transaction listing shows payments he says he made in early 2015 direct to the school and it does not disclose any student withdrawal fees.
52Interest is sought on the amount of $10,587 from 24 November 2016 to date of payment. I find the sum of $10,587 is due and payable with interest as sought to date of payment.
Child A’s school fees $4,869 and $5,905
53The applicant seeks payment of two sums from the first respondent in respect of school fees for Child A’s attendance at School B.
54The first amount is $4,860 being one half of the school fees paid by the applicant for the 2015 school year. Interest is sought from 24 November 2016 to date of payment.
55The applicant also seeks payment of $5,905 being one half of Child A’s school fees for 2016. Interest is sought from 25 February 2016 being 14 days after the date the first respondent received the invoice, namely 11 February 2016, to date of payment.
56The first respondent submits he has no obligation to pay the school fees sought. He refers to the orders made by consent on 15 December 2014. Paragraph 3 of the orders provides “All previous child related orders be discharged.” The first respondent submits the order dated 15 December 2014 encompasses the child support departure order made on 14 March 2013.
57The first respondent’s position is somewhat inconsistent because in evidence he said, if he can be satisfied by production of invoices that Child B’ School A fees are due, he would pay them. In relation to the School A fees he did not suggest that his obligation to pay them had been discharged by the 15 December 2014 orders.
58In my view paragraph 3 of the orders does not include the child support departure order. The subject matter of the trial after which the orders dated 15 December 2015 were made concerned the parenting arrangements for the children and not the issue of their financial support. The parenting orders did not discharge the orders made pursuant to the Assessment Act.
59As set out below, the first respondent’s position is that he will never pay school fees for Child A at School B as he is strongly opposed to his attendance there.
60I find the sums of $4,860 and $5,905 are due and payable with interest as sought to date of payment.
Child A’s future school fees $25,925
61At the hearing the applicant sought payment of $25,925 and proposed to place this amount into an interest bearing account in her sole name. She proposed to draw on this sum as required to meet one half of the tuition expenses of Child A in respect of his attendance at School B. In an email to the applicant’s solicitor dated 15 February 2016 the first respondent stated:
“Understand this very clearly – I will never make payment to [School B].
I agreed to pay 50% of the boys school fees on the basis [Child A] (and [Child B]) was attending [School A] – the best school in the State.
....................
Return [Child A] immediately to [School A] and I will pay the school fees as per the agreement you and your client purposefully and unscrupulously betrayed.”
62The applicant’s position is that there is no prospect of the first respondent voluntarily paying Child A’s future school fees.
63In her closing submissions filed 16 February 2017, the applicant proposes an order pursuant to s 129 of the Assessment Act, that paragraph 23 of the orders dated 14 March 2013 be modified to read as set out at [13] above. If made, the order would oblige the first respondent to pay lump sum child support sufficient to cover the remainder of Child A’s school fees at School A and she seeks to enforce that obligation.
64Section 129 of the Assessment Act provides as follows:
129 Modification of orders under Division
(1)If an order under section 123A or 124 is in force in relation to a child (whether or not all things ordered to be done by the order have been done):
(a)the court that made the order; or
(b)another court having jurisdiction under this Act in which the order has been registered;
may under this section, by order:
(c) discharge the order; or
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(e)if the operation of the order has been suspended under paragraph (d)—revive its operation wholly or in part; or
(f)subject to subsection (3), vary the order (including any matter specified under subsection 123A(3), or any statement made under section 125, included in the order) in any way.
(2)The court must not make an order under subsection (1) in relation to the order under section 123A or 124 unless the court is satisfied, having regard in particular to any matter specified under subsection 123A(3), or any statement made under section 125, that it would be:
(a)just and equitable as regards the child, the carer entitled to child support and the liable parent concerned; and
(b)otherwise proper;
to make the order.
(3)The court must not, by order under subsection (1), vary an order unless it is also satisfied:
(a)that making the variation is justified because of a change in the circumstances of the child, the carer entitled to child support or a liable parent concerned since the order was made or last varied; or
(c)that making the variation is justified because of a change in the cost of living since the order was made or last varied; or
(d)in a case where the order was made by consent - that the order is not proper or adequate; or
(e)that material facts were withheld from the court that made the order or from a court that varied the order, or that material evidence previously given before such a court was false.
(4)If the court proposes to vary an order made under section 123A or 124 otherwise than by varying any matter specified in the order under subsection 123A(3), or any statement included in the order under section 125, the court must consider whether, having regard to the proposed variation, it should also order the variation of any such matter or statement.
(5)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and a liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(5A)In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(6)In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(7)Subsections (5), (5A) and (6) do not limit the matters to which the court may have regard.
(8)In satisfying itself for the purposes of paragraph (3)(d), the court must have regard to any payments, and any transfer or settlement of property, previously made by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
(9)In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any changes that have occurred in a relevant Consumer Price Index published by the Australian Statistician.
(10)The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made, or was last varied having regard to a change in the cost of living.
(11)Subject to any order made under section 131, the discharge of an order does not affect the recovery of arrears due under the order, or under this Act, when the discharge takes effect.
65I decline to make the child support modification orders sought by the applicant. These orders were not sought by her at the hearing. The other parties, in particular the first respondent, have not had an opportunity to respond to this amendment to the applicant’s case. The evidence at the hearing does not enable me to satisfy myself as to the matters about which I am required to be satisfied as set out in s 129.
Funds to be held to meet future costs orders
66Litigation is ongoing. The applicant seeks an order that funds be placed in an interest bearing account to meet the costs of litigation.
67On 20 April 2016 an order was made that the first respondent pay the applicant’s costs of parenting proceedings to be assessed by a Registrar. That assessment has yet to take place, but will give rise to an amount owed by the first respondent to the applicant. It is not known when that amount will be determined or how much it will be.
68The first respondent is obliged to pay those costs. I accept that funds should be held to meet that costs order in a reasonably estimated amount.
69Contravention proceedings were determined by the Court on 14 April 2015.
70On 27 February 2017 I determined that the first respondent should pay the applicant’s costs of those contravention proceedings in the sum of $4,000 and ordered payment of that amount within 14 days. Payment is due on or before 13 March 2017.
71If a costs order is made in favour of the applicant in relation to these enforcement proceedings a further sum will be payable by the first respondent to the applicant. It is not known at this time if a costs order will be made, and if so, how much it will be. In all the circumstances and to avoid the cost of further proceedings, I consider it appropriate to hold funds in a reasonably estimated amount to meet an order which may be made.
72The applicant seeks an order that after payment of 50% of the balance of proceeds of sale of property to the second respondent, the remaining proceeds of sale be paid in order of priority as set out at [7] above. She proposes the balance then remaining be placed in an interest bearing account in the name of the first respondent to meet the costs referred to at [12] above. She seeks an order that the first respondent be restrained by injunction from making any withdrawal or dealing with the funds in the interest bearing account until orders are made with respect to costs. In all the circumstances I consider it proper to make the injunction sought.
73In her closing submissions at paragraph 71, the applicant refers to an injunction in different terms to that sought in the amended minute of orders sought. At paragraph 71 she proposes injunctive orders restraining the husband from accessing certain property in which he has an interest, whereas the order sought in the amended minute is that the first respondent be restrained from accessing funds in the interest bearing account.
Superannuation splitting order
74Order 4 of the orders of the Full Court dated 8 September 2015 provides as follows:
“In accordance with s 90MT(4) of the Family Law Act 1975 (Cth.) (“the Act”) a base amount of $100,000 is allocated to the husband out of the wife’s interest in the [ABC] Superannuation Fund (“the Fund”).”
75Further orders were made to give effect to the order for the superannuation split, the operative date being 30 June 2013. The superannuation split has not been effected. The applicant asserts the first respondent delayed signing the necessary documents, something he disputes. The first respondent submits he executed all documents he was required to execute.
76The first respondent submits he is not prepared to “hand over $100,000 in cash to [Ms Joans] unless the corresponding superannuation transfer is in actual progress/has occurred.”
77For reasons set out at [29] above the first respondent must pay the sum ordered by the Full Court and he must execute the necessary documents to give effect to the superannuation split.
78The first respondent’s position in relation to orders 3 and 4 of the Full Court’s order is as set out above. I am not convinced he will cooperate and promptly sign the necessary documents. I intend to make the order sought by the applicant that the Principal Registrar execute the necessary documents to give effect to the superannuation splitting order on behalf of the first respondent.
79The orders sought by the applicant as set out at paragraph 10 of the amended minute are appropriate to give effect to the superannuation splitting order.
THE PARTIES’ FINANCIAL CIRCUMSTANCES
80The sums sought by the applicant are significant. She deposes she lives in rental accommodation as she does not have sufficient funds to make a deposit towards a home. In the 2015 financial year, her taxable income was $382,467 and her tax payable was $145,657. After meeting private school expenses for the children, rental accommodation costs, costs associated with the children’s health and extracurricular activities, the balance remaining was applied to the costs of the family.
81It is clear that recovery of the funds sought to be enforced will have a significant impact on her financial situation.
82The first respondent and the second respondent together own property and resources valued at $5,182,761. The applicant submits that by inference the first respondent has property interests valued at about $2,500,000 and neither respondent suggested otherwise. In evidence the first respondent said he also has some furniture. He says he has two cars worth about $18,500 and some paintings worth about $30,000. He has cash of $4,500. He has few shares. The first respondent explained he sold shares to pay legal bills and paid capital gains tax on the proceeds of the shares. He has a joint superannuation fund with the applicant and a self-managed fund worth about $20,000.
83In April 2013 the first respondent received the sum of $954,636 by way of property settlement after the sale of the former matrimonial home. He has disposed of the cash. It was used for school fees, lawyers, travel and living expenses. He also made some bad share investments.
84At the hearing the first respondent stated he could access funds. He said he could borrow $150,000 from a friend and have the cash within a few days.
85However, the first respondent does not mention these funds in his closing submissions. In his closing submissions the first respondent states:
“[Mr Singerson] has with effect 15 November 2016 sourced a line of credit to enable the $100,000 cash transfer once the corresponding superannuation transfer is complete.”
86The first respondent has sufficient property and resources to enable him to pay the sums due to the applicant, although an enforcement order will involve the realisation or sale of property including shares and real estate.
87It is necessary to consider the impact of the order for enforcement also upon the second respondent.
88The second respondent’s financial relationship with the first respondent is set out in her affidavit filed 17 October 2016. The [Suburb R] properties are duplexes which are currently rented out on the open market. The second respondent does not wish to sell these properties as they are part of her long term retirement plan, they are rented out at market value and their sale will result in the loss of the rental income.
89The applicant says she will work closely with the second respondent in an attempt to minimise the financial impact of the orders sought by her upon the second respondent.
CONCLUSION
90Having regard to and weighing the above matters I am satisfied that I should exercise my discretion to enforce the orders. The first respondent has not persuaded me that it would be inequitable to do so. Until the hearing, the approach taken by the first respondent has been to ignore the orders made for payment of sums due. Having regard to his attitude to the applicant and these proceedings as is evidenced by the orders sought by him, I have little confidence he will pay the outstanding amount unless the orders are enforced. The applicant is entitled to the benefit of the Court orders.
91I intend to order that the first respondent pay to the applicant the sums referred to at [7] above, specifically those at (a), (b) (in a modified amount), (c), (d), (e), (f) and (g).
92In relation to (b), the interest on the costs order has been recalculated such that it is payable for the period from 3 September 2014 to 18 November 2016, in the sum of $1,612.
93In relation to (h), I have declined to make the orders seeking modification of the child support order.
94I consider it appropriate that a reasonably estimated sum in respect of costs already ordered, but not assessed be held pending the assessment. I have yet to hear from the parties in respect of any application for costs arising out of these enforcement proceedings, but will do so promptly with a view to finalising as many financial proceedings between the parties as possible.
95The orders sought by the second respondent would see the first respondent pay such sum to the applicant as the Court determines is due up to $150,000. In the event that the court finds that the debt due by the first respondent is greater than $150,000 then, within 14 days of orders, the second respondent proposes she be appointed sole trustee for the sale of parcels of shares held by Company K as trustee for the Singerson Family Trust. She would nominate the shares to be sold.
96In her closing submissions the applicant appears to take on board the position of the second respondent. Initially she sought enforcement of the sums due to her by the first respondent through the sale of property, in particular the Suburb R properties. As a consequence of the evidence, the applicant seeks amended orders as set out in her amended minute of proposed enforcement orders. Specifically, she proposes that the first respondent must then pay the sums due within four days and if he does not do so, the second respondent sell, or call in shares and cash resources held by the first respondent, whether with her, or as a beneficiary or in any other manner and within 21 days of orders, the second respondent sell the Suburb R properties.
97The applicant correctly points out that the second respondent does not deal with the first respondent’s submission that he has a line of credit of $100,000 and her orders do not cover the possibility that the first respondent may not have funds of $150,000, $100,000 or any funds at all.
98The applicant’s orders give an opportunity to the first respondent to access the funds which, at the hearing, he said were available to him. I consider he have the opportunity to do so within 7 days. If he does not do so, or in the event of a shortfall between the amount he can access and the amount due, firstly shares or cash resources would be realised. Then, and only if necessary, the Suburb R properties would be sold.
99The second respondent will be the sole trustee to sell and/or call in shares and cash resources held by the first respondent whether jointly with her or in any other manner. In the event it is necessary that the Suburb R properties be sold, I consider the applicant and the second respondent should be appointed as joint trustees of the sale. I accept the applicant’s evidence that she is mindful of the second respondent’s reluctant involvement in these proceedings and her reluctance to sell these properties. I accept the applicant’s evidence is that she will do what she can to minimise the impact of the enforcement orders upon the second respondent and that she and the second respondent will be able to cooperate in this respect.
THE PROPOSED ORDERS
100The orders I propose to make are as follows:
Enforcement Orders
1Within 7 days from the making of these orders, the first respondent, pay to the applicant the following:
(a) $122,093 plus interest on this sum calculated from 29 September 2015;
(b) $1,612;
(c) $2,200;
(d) $2,200;
(e) $4,860 plus interest on this sum calculated from 24 November 2016;
(f) $5,905 plus interest on this sum calculated from 25 February 2016; and
(g) $10,587 plus interest on this sum calculated from 24 November 2016.
2In the event the first respondent fails to pay the sum of $4,000 to the applicant pursuant to the orders dated 27 February 2017, he pay said sum to the applicant plus interest calculated from 14 March 2017 to date of payment.
3Contemporaneously with the payments referred to in paragraph 1, the first respondent provide to the solicitors for the applicant and the second respondent, by email, with documents showing payment of the amounts referred to in paragraph 1 with such documents to include:
(a) the payment amount;
(b) the date and time when the payment was made;
(c) the receipt number for the payment;
(d) the account details from which the payment was made; and
(e) the account details into which the payment was made.
4If the first respondent does not pay all of the amounts referred to in paragraph 1 to the applicant, or if the first respondent does not pay any of the amounts referred to in paragraph 1 to the applicant:
(a) the second respondent be appointed as sole trustee to sell and/or call in any and all shares and cash resources held by the first respondent whether held jointly with the second respondent or whether as a beneficiary or whether held in any other manner;
(b) within 21 days from the making of these orders, the second respondent sell the property referred to in paragraph 3(a) and pay the applicant the enforcement sum ordered;
or, alternatively;
(c) the second respondent forthwith notify the applicant that payment of the enforcement sum cannot be made in full from the sale by the second respondent of property owned by the first respondent and the [Suburb R] properties be, therefore, sold in accordance with paragraphs 5 through to 7 below.
Sale of [Suburb R] Properties
5The properties located at [Suburb R] being the land described as Lot [X]on Strata Plan [XXXXX ] in Certificate of Title [XXXX] Folio [XXX] (“the first property”) and Lot [Y] on Strata Plan [YYYYY] in Certificate of Title [YYYY] Folio [YYY] (“the second property”), be forthwith listed for sale.
6The applicant and second respondent be appointed as the joint trustees of sale of the first property and the second property (“trustees for sale”);
7In relation to the sale of the properties:-
(a) [Ms Murphy] of [Real Estate Agent, Suburb R] or such other agent as is agreed by the trustees for sale be appointed as the real estate agent to carry out the sale of the first property and the sale of the second property (“the properties”).
(b) the properties be listed for sale at such price as is recommended by [Ms Murphy] as being reasonable;
(c) the trustees for sale do all things necessary to:-
(i)accept any offer for either property which is recommended by the agent being reasonable;
(ii)propose any counter offer that is recommended by [Ms Murphy] the agent to achieve the maximum sale price possible; and
(iii)forthwith cause the sale of the properties.
Payment of Enforcement Amounts
8Upon the sale and settlement of the properties, the proceeds of sale be paid as follows:-
(a) in repayment of agent fees and settlement fees;
(b) to pay any adjustment of rates and taxes;
(c) the equivalent of one half of the agent fees and settlement fees be reimbursed to the second respondent;
(d) such sum be paid to the applicant and second respondent as will reimburse them for the reasonable costs of sale which they each incur;
(e) 50% of the balance of the proceeds of sale be paid to the second respondent;
(f) the remaining proceeds of sale be paid in the following order of priority;
(i)$122,093 plus interest on this sum calculated from 29 September 2015;
(ii)$1,612;
(iii)$2,200;
(iii)$2,200;
(iv)$4,860 plus interest on this sum calculated from 24 November 2016;
(v)$5,905 plus interest on this sum calculated from 25 February 2016;
(vi)$10,587 plus interest on this sum calculated from 24 November 2016; and
(g) the balance then remaining be placed into an interest bearing account in the name of the first respondent (“interest bearing account”).
9Until further order, the first respondent be restrained and an injunction be granted restraining him from making any withdrawal or dealing with the funds in the interest bearing account in any way until:-
(a) the order is made by a Registrar of the Family Court of Western Australia for the party/party costs order dated 20 April 2016; and
(b) an order is made in relation to the applicant’s costs application (either ordering costs or dismissing the applicant’s application) in relation to these enforcement proceedings.
Superannuation Splitting Orders
10Pursuant to section 106A of the Family Law Act 1975 and noting that under the terms of the orders of the Full Court of the Family Court of Australia dated 8 September 2015 (“Full Court orders”), the respondent is directed to execute deeds and instruments to give effect to the orders therein, and noting that the Court finds pursuant to section 106A(1)(b), that it is necessary to exercise the powers of the Court, the Court appoints the Principal Registrar of the Family Court of Western Australia to execute the instruments necessary to give effect to:-
(a) the superannuation splitting orders referred to in paragraphs 4, 5, 6, 7 and 8 of the Full Court orders; and
(b) the rollout of the husband’s member balance in [ABC] Superannuation Fund; and
(c) thereafter, the closure of the [ABC] Superannuation Fund.
11All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
12All parties to contact the chambers of Justice Duncanson to arrange the collection of their exhibits tendered by them 28 days after the date of this order and no later than 42 days from the date of this order.
13In default of compliance with paragraph 12 above, all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
14In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 11, 12 and 13 above do not apply.
15The proceedings otherwise be dismissed.
I certify that the preceding [100] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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