Leiber and Leiber
[2012] FMCAfam 1354
•11 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEIBER & LEIBER | [2012] FMCAfam 1354 |
| FAMILY LAW – Property – maintenance – child maintenance – enforcement of Orders. FAMILY LAW – Injunction – anti-suit injunction – forum non conveniens – appropriate forum. FAMILY LAW – Stay – application for Stay of proceeding in the Federal Magistrates Court pending resolution of proceeding between the parties in Singapore. PRACTICE AND PROCEDURE – Enforcement of Consent Orders – whether payments can be said to “fall due” during a moratorium on payment. COSTS – Rule 19.18 of the Family Law Rules 2004 does not apply in the Federal Magistrates Court. |
| Family Law Act 1975 (Cth), ss.65H, 66L Federal Magistrates Act 1999 (Cth), s.10 Family Law Rules 2004 Rule 19.18 Federal Magistrates Court Rules 2001 rr.1.05, 4.01, 21.02, 25B.08, 25B.09, Part 21 |
| Henry v Henry (1996) 185 CLR 571; 20 Fam LR 171; FLC 92-685 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| Applicant: | MS LEIBER |
| Respondent: | MR LEIBER |
| File Number: | SYC 715 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 November 2012 |
| Date of Last Submission: | 13 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Paul & Paul Lawyers |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | TW Legal |
ORDERS
By way of enforcement of Order 5 made by consent on 22 June 2011 the parties are to do all things and sign all such documents necessary to authorise TERENCE JESSOP, solicitor to pay from the funds currently standing to the credit of the parties in his Trust Account the following amounts:
(a)The sum of $121,121.77 less SGD 17,500 to the nominated bank account of the Applicant wife or as she may otherwise direct in writing; and
(b)The balance to the nominated bank account of the Respondent Husband or as he may otherwise direct in writing
PROVIDED THAT the said solicitor is at liberty to deduct from the amount standing to the credit of the parties such sum as may properly be due to him for his costs of acting of the parties.
The parties are to forward a sealed copy of these Orders to the said solicitor within seven (7) days of the date of these Orders.
All other Applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Leiber & Leiber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 715 of 2011
| MS LEIBER |
Applicant
And
| MR LEIBER |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for enforcement of Consent Orders made between the husband and the wife on 22 June 2011.
The Applicant wife seeks to enforce Order 5 of the Consent Orders which provided that the Respondent Husband should pay the expenses and outgoings associated with the sale of the parties’ properties, claiming that he failed to do so, leaving a shortfall of $25,449.62.
She also seeks to enforce Order 17 of the Consent Orders relating to orders by way of child maintenance, providing that the husband is obliged to pay the children’s school fees, which she claimed that he threatened not to pay.
Further, she seeks an injunction restraining the husband from taking any steps in proceedings in the High Court of Singapore relating to the issues concerning the secondary education of the parties’ children and periodic maintenance other than registering the Consent Orders and any other relevant Orders of this Court in the High Court of Singapore.
The husband opposes the wife’s proposed orders, seeking summary dismissal of the application to enforce Order 17, relating to child maintenance, and claiming that the anti-suit injunction should be refused, as the proceedings in the High Court relate to the parties’ now-adult son, [X], who is no longer subject to the jurisdiction of this Court.
Background
The parties are Australian citizens who reside in Singapore, as do their two children. They were married [in] 1993 and separated on 10 July 2009. They are now divorced. A Divorce Order was made on 7 April 2011.
There are two children of the marriage. [X] was born [in] 1994. [Y] was born [in] 1997.
It can be seen that the parties’ son, [X], is now eighteen years old and therefore an adult.
The parties entered into Consent Orders in this Court on 22 June 2011, resolving property and child support matters between them. The recitals to the Minute of Proposed Consent Order stated that:
The children presently live with each of the parties on a shared care basis and it is proposed that this arrangement continue into the future.
The recitals also described how the parties had agreed to deal with the issue of child support:
11. In addition the parties have resolved all matters in respect of child support.
12. It is agreed between the parties that no periodic child support will be paid by one parent to the other parent.
13. The husband will pay all of the school fees pursuant to the terms of this agreement, if however in the future the wife’s income increases and she is in a position to do so, the wife will offer to also make a contribution towards the children’s school fees as a sign of good faith.
Orders 1 and 2 of the Consent Orders dealt with the sale of the parties’ real estate at Dural, NSW, and Canberra in the ACT.
Orders 3, 4 and 5 provided:
3. That upon on settlement of the sale of each of the Properties the proceeds of sale be paid in the following manner and priority:
3.1 All costs and expenses of sale including legal costs and disbursements, agents commission, valuer’s fees, and auction expenses (including repayment of any such expenses as been paid[1] by either or both of the parties);
3.2 The amounts required to pay all municipal and water rates outstanding with respect to the Property;
3.3 To the relevant Bank the amount required to discharge the Mortgage secured thereon;
3.4 55% of the net proceeds of sale to the wife;
3.5 The balance remaining to the husband.
[1] sic
4. That simultaneously with the payment to the wife pursuant to paragraph 3.4 the wife pay to the husband’s nominated bank account the sum of SGD$17,500.
5. Pending the settlement of the sale of the properties
5.1 the husband must pay as and when they fall due, all expenses, costs and outgoings associated with the properties including but not limited to all costs associated with the mortgage, all water rates, municipals and the like.
5.2 That the husband be and continue to receive all rental income with respect to the properties.
5.3 The parties be and are hereby restrained from further encumbering the properties or altering any of the terms of the properties’ mortgage.
Orders 6 to 15 inclusive are not directly relevant to the matters to be decided.
Orders 16 and 17 of the Consent Orders relate to child maintenance:
16. Each party shall maintain the children at all times the children are living with them from their own separate resources and there shall be no periodic child support payments as between the parties.
17. That the Respondent husband do pay by way of child maintenance for the children of the marriage [X] born [in] 1994 (“[X]”) and [Y] (“[Y]”) the children’s school fees with respect to the children’s attendance at their current school or such other school as the parties may agree upon in writing that the children may attend from time to time.
The wife commenced proceedings on 24 April 2012 by filing an Application in a Case and an affidavit in support claiming that the husband was in default of Orders 5 and 17 and seeking to enforce those Orders.
The husband filed a Response on 29 June 2012.
On 15 August 2012 the husband commenced court proceedings in Singapore.
The husband filed an Amended Response on 20 August 2012 and a further Amended Response on 21 August 2012. He filed an Application in a Case on 15 October 2012 seeking to vacate the hearing scheduled for 13 November 2012 and staying the proceedings in this Court pending the resolution of proceedings in the Subordinate Courts of the Republic of Singapore involving the Applicant and the Respondent.
The wife filed an Application in a Case on 15 October 2012 seeking an injunction that the husband be permanently restrained from doing any act or thing other than to consent to a permanent stay or dismissal of proceedings in the High Court of Singapore.
The husband filed a further Amended Response on 12 November 2012.
The proceedings were heard on 13 November 2012. Neither party attended Court personally. No oral evidence was taken. The parties were each represented by counsel and the matter proceeded on the papers by way of submissions.
Issues
Counsel for the wife told the Court that there were in effect three issues to be decided.
The first issue concerns the division of the proceeds of sale of the property held in the Trust Account of a solicitor, Mr Terence Jessop. There is no dispute between the parties about the meaning or the application of Order 3 of the Consent Orders. However, the wife claims that the husband failed to comply with Order 5 of the Consent Orders, requiring him to pay the expenses, costs and outgoings until the properties were sold, thus causing a shortfall in the proceeds of sale of $25,449.62. The wife claims that the husband owes her 55% of that shortfall.
Second, the wife claims that the husband should be required to pay from his share of the property proceedings an amount of $83,852.33 by way of child maintenance, being the sum required to pay the children’s school fees up to the date when the children will finish their secondary education, which would require an amendment to Order 17.
Third, the wife seeks an injunction against the husband restraining him from continuing with the proceedings he has commenced in Singapore.
The husband, for his part, seeks summary dismissal of the wife’s application to enforce the payment of school fees under Order 17, claiming that the school fees were not in arrears at the commencement of the proceedings and at no time has he been in breach of that Order.
He also seeks a dismissal of the wife’s application for an anti-suit injunction, saying that the relief sought in the Singapore proceedings regarding [X] only relates to his university education, which is not the subject of the Consent Orders sought to be enforced.
Orders Sought
The wife relies on two Applications in a Case, one filed on 24 April 2012 and the other filed on 15 October 2012.
The Application in a Case filed on 24 April 2012 seeks to enforce Orders 5 and 17 made by consent on 22 June 2011. It is doubtful that an Application in a Case is the correct Application, because what is being sought are final orders enforcing Consent Orders which were themselves final orders. At the time the proceedings were commenced, there were no other proceedings on foot in this Court, so the proper Application in my view should have been an Application for Final Orders, as provided by Rule 4.01. Rules 25B.07 and 25B.08, which provide for enforcement of obligations, do not say otherwise. Whilst Rule 25B.09 refers to the need to file an application in a case, that rule does not apply in this case. It applies to enforce payment of a child support liability that is not an order and is not taken to be an order (Subrule 25B.09(1)).
As neither party has sought to take that point, nothing further needs to be done at this stage.
The Application in a Case filed on 15 October 2012 is unexceptionable, as it has quite clearly been filed as a part of ongoing proceedings. It seeks an order by way of injunction, restraining the husband from continuing the proceedings in Singapore.
The Orders sought are handily set out in a Minute of Order Sought by the Applicant Wife prepared by the wife’s solicitor.
The wife seeks the following Orders:
1. That by way of enforcement of paragraph 5 of the consent orders forthwith upon the making of those orders the sum of AUD $128,599.60 less SGD17,500 be paid to the wife’s nominated bank account or as she may otherwise direct in writing from the funds presently standing to the credit of the Trust Account of Terence Jessop (“Jessop’s trust account”).
2. That by way of enforcement of paragraph 17 of the consent orders that the sum of SGD 76,193 be paid to the [A] School Singapore (“[A]”) from the husband’s share of the funds in the Jessop trust account provided that should the children at any time leave the [A], any funds that have not been applied to the children’s school fees at the [A] shall be paid to the husband PROVIDED THAT the husband thereafter is responsible for the payment of the school fees at the children’s new school.
3. Upon the payment being made pursuant to paragraphs 1 and 2 the balance of the funds standing to the credit of Jessop’s trust account shall be paid to the husband’s nominated bank account or as he may otherwise direct in writing.
4. That by way of injunction, the husband (be) and is permanently restrained from doing any act or thing, other than to consent to a permanent stay or dismissal of the proceedings and/or to register any order of the Federal Magistrates Court of Australia, in proceedings no OSF No. 372/2012/Y in the High Court of the Republic of Singapore being proceedings commenced by the father on 15 August 2012 so far as it relates to the children’s secondary education and periodic maintenance until such time as they are 18 years of age.
5. That the parties shall forthwith upon the making of these orders do all acts and things to register these orders and the consent orders with the relevant Court in Singapore.
6. That pursuant to Rule 19.18(1)(a) and (b) the husband pay the wife’s costs of and incidental to this application and that such costs be paid in the amount assessed as fair and reasonable costs as between party and party on application by the Wife to the Manager Costs Assessment of the Supreme Court of NSW in accordance with the Legal Profession act 2004 such costs to be assessed without reference to the scale provided for in Schedule 3 to the Family Law Rules which scale is to be disregarded completely for the purpose of the assessment having regard to the costs reasonably and actually incurred by the wife in the proceedings in accordance with her retainer agreement with her solicitors.
The wife’s proposed Order 6 is problematic, as it appears to rely on Rule 19.18 of the Family Law Rules 2004. Rule 19.18 does not apply in the Federal Magistrates Court (see rule 1.05)
The rules relating to costs in this Court are found in Part 21 of the Federal Magistrates Court Rules 2001.
In his Application in a Case filed on 15 October 2012 the husband sought these Orders:
1. That hearing of this matter scheduled for 2:15 pm on Tuesday, 13 November 2012 be vacated.
2. That these proceedings in this honourable Court be stayed pending the resolution of the parenting proceedings in the Subordinate Courts of the Republic of Singapore, proceedings No. OSF 372/2012/Y, involving the Applicant and the Respondent.
This Application was somewhat overtaken by events. Counsel for the husband did not press either of the Orders sought in the Application.
The husband’s Amended Response filed on 12 November 2012, the day before the hearing, sought these orders:
1. That the distribution of the proceeds of the houses be enforced, as per the Consent Orders, except as per Proposed Order 2 below.
2. That an adjustment of SGD$17,500 be made in favour of the Respondent from the amount due to the Applicant from the funds held in Jessop’s Trust Account, on account of Paragraph 4 of the Consent Orders dated 17 June 2012[2] to ensure compliance with the Order by the Applicant.
3. As an alternative to Proposed Order 1, should the Court not be satisfied as to the Respondent’s compliance with Paragraph 17 of the Consent Orders, that:
a. the sum of SGD$76,193 from the Respondent’s share of the funds held in Jessop’s Trust Account be forwarded directly to the [A] School Singapore to be held on account for payment of the Children’s school fees; and
b. should the Children leave the [A] School Singapore, the funds are to be refunded to the Respondent and he then be responsible for payment of the school fees at the children’s new school.
4. That the Applicant pay the Respondent’s legal costs on responding to the Applications filed 24 April and 15 October 2012 and attending the Hearing of those Applications.
[2] Sic There are no consent orders of 17 June 2012. This Application concerns enforcement of Orders of 22 June 2011.
The husband sets out in the Amended Response a list of Grounds of Opposition or further orders. Those grounds are as follows and succinctly set out a significant part of the husband’s case:
1. The delay in selling the former matrimonial property was caused in part by the Applicant and therefore the Respondent’s obligation to make payments under Paragraph 5.1 of the Consent Orders was increased substantially
2. The Respondent is willing to comply with his obligations under Paragraph 17 of the Consent Orders and the Children’s school fees are currently paid up to date in comp0liance with that Order; and
3. The Respondent is not confident that the Applicant will comply with Paragraph 4 of the Consent Orders.
4. The Respondent was not at the time of filing the Application in a Case filed on 24 April 2012, nor is he currently, in default of the Consent Orders. Therefore, these proceedings were vexatious and not necessary.
Evidence
The wife relied on her affidavits sworn on 13 April, 10 October and 9 November 2012.
In her affidavit of 13 April 2012, the wife deposed that, in respect of the husband’s obligations under Order 5 of the Consent Orders, the husband did not meet all of the costs associated with the properties pending the settlement of their sale.[3] He continued to apply the rental income in part payment of the expenses associated with the properties, but there was a shortfall each month.[4]
[3] Affidavit of Ms Leiber 13.4.2012 at paragraph [11]
[4] Ibid at [12]
The shortfall amounted to a total of $25,449.62.[5]
[5] Ibid at [13]-[14]
This shortfall meant that the net proceeds received on settlement was $207,372.44, rather than $233,817.53.[6] That amount is still being held by Mr Jessop in his Trust Account. The wife calculates that if the husband had complied fully with the Order, she would receive from the proceeds of sale an amount of $128,599.60. However, because of the shortfall of $25,449.62, she stands to receive only $114,054.82. Thus, she would receive $14,544.80 less than she would otherwise have been entitled to expect[7]
[6] Ibid at [15]
[7] Affidavit of Ms Leiber 13.4.2012 at [16]; Annexure “C”
The wife annexed to her affidavit copies of correspondence from the husband which she says indicate his intention not to comply with the consent orders.[8] She deposes:
Pending the finalisation of their secondary education the children’s school fees due and payable in the future will be AUD$83,852.33 (SGD $109, 210).[9]
[8] Ibid at [16]; Annexure “D”
[9] Ibid at [20]
The wife seeks that the amount of $83,852.33 be paid to her so that she can apply it towards the children’s school fees.
The wife’s affidavit sworn on 10 October 2012 is in support of her application for an injunction restraining the husband from proceeding with his Application to the High Court of the Republic of Singapore. She annexes copies of the Originating Summons (Family Matters) and the affidavit sworn by the husband on 15 August 2012 to her affidavit.[10]
[10] Affidavit of Ms Leiber 10.10.2012 Annexure “A”
In her affidavit sworn on 9 November 2012 the wife annexes emails dated 8 and 9 November 2012 from the [A] School Singapore relating to the children’s school fees. The emails show that the children’s school fees for 2012 have been paid in full. The estimated school fees for [Y] are shown as follows:
2013 fees [Y] Year 11 - $35,548 Tuition
2013 fees [Y] Year 11 - $ 760 IT Levy
2014 fees [Y] Year 12 - $37,325 Tuition
2014 fees [Y] Year 12 - $ 760 IT Levy
2014 fees [Y] Year 12 - $ 1800 HSC or IB Examination fees.[11]
[11] Affidavit of Ms Leiber 9.11.2012 Annexure “A”
The wife deposes:
4. The husband has otherwise paid the children’s school fees to date.
5. I am not aware if the husband intends to comply with the consent orders in circumstances where the husband has sought orders in Singapore that I be responsible for [Y]’s school fees.[12]
[12] Ibid at [4]-[5]
The Respondent husband relied on two affidavits, sworn on 29 June and 17 August 2012. However, the earlier affidavit was not filed for some unexplained reason but was eventually filed in Court.
The husband deposed that the sales of the two houses that the parties owned were delayed, so that settlement did not take place until about 30 December 2011 and 9 February 2012. The husband claimed that this delay extended his mortgage liability by an amount of $14,118.69.[13]
[13] Affidavit of Mr Leiber 29.6.2012 at paragraph [15]
The husband deposed that on 5 June 2011 he had a serious accident which required surgical operations in his foot. The surgical procedures were not covered by his medical insurance and he was required to pay amounts of SGD $11,311.32, SGD $21,138.62 and SGD $3,678.00 to the [omitted] Hospital in Singapore. The wife assisted the husband to apply to the bank holding the mortgage over the properties for a hardship waiver, which was approved for three months.[14]
[14] Ibid [17]
The husband deposed in his affidavit sworn 17 August 2012 that he did intend to pay the children’s school fees.[15]
[15] Affidavit of Mr Leiber 17.8.2012 at [6]
The husband set out in that affidavit why he has commenced proceedings in the Court in Singapore:
I note that under the Australian Family Law Act 1975, Parenting Orders do not have effect following a child turning 18 years of age. I note that at no place in the Orders did I agree to pay the Children’s school fees after they turned 18 years of age. I note that my son [X] turned 18 on [date omitted] 2012, and therefore under the Orders I am no longer obligated to pay his school fees. While I certainly wish to provide financially for my children’s education, my fear that the Applicant will not provide for the Children’s university expenses has caused me concern that I will have to undertake full payment of the Children’s University fees in lieu of any obligation on the Applicant to contribute.[16]
[16] Affidavit of Mr Leiber 17.8.2012 at [9]
Submissions
Counsel for the wife, Mr Othen, submitted that the evidence established the amount of the shortfall in payments of the mortgage by the husband, namely $25,449.62. Had it not been for the shortfall, the proceeds of sale would have amounted to $233, 817.53. Had that been the case, the wife would have received 55% of that amount, being about $128,599.00 odd. However, if she were to receive only 55% of the amount of $207,372.44 she would only receive $114,000.00 odd, about $14,599.00 less.
This is not a case, he submitted, where the Court should exercise its discretion in favour of the husband. The wife did assist the husband with his hardship application arising from his hospitalisation. The husband suffered a temporary cash flow deficit of about SGD$30,000, so it was reasonable to approach the bank for a “payment holiday”. However, this was only temporary. It is not a basis to vary the order or to seek the exercise of the Court’s discretion not enforce it. The interest still kept accruing over the three month period when the payment holiday was in force.
As for the school fees, Mr Othen told the Court that the husband had paid those fees late. It is not an abuse of process, he submitted, to file process to enforce an anticipated breach of an order. He conceded that the husband is not currently in arrears. In respect of future payments, the husband has said that he would agree to pay an amount of SGD $76,000.00 odd to the school, which is entirely consistent with what the wife is seeking. The only asset available in Australia to meet the obligation is the money in the solicitor’s Trust Account.
It was further submitted that the wife has offered to register the Consent Orders in Singapore but the husband has refused to do so. Instead, he has started Court proceedings in Singapore seeking order that cover the same ground as the orders being sought in this proceeding. He was seeking that this proceeding should be stayed. The Singapore proceedings are “a classic forum shop” and the Court should consider the relevant authorities such as Voth v Manildra Flour Mills Pty Ltd[17] and Henry v Henry[18]. He submitted that this was not an inappropriate forum and the Singapore proceedings were vexatious and oppressive against the wife.
[17] (1990) 171 CLR 538
[18] (1996) 185 CLR 571; 20 Fam LR 171; FLC 92-685
Mr Dura of counsel, who appeared for the husband, submitted that neither party had applied to the Court in Singapore to register the Consent Orders of this Court.
He submitted that the anti-suit injunction should not be made, because when comparing the prayers for relief sought in Singapore, there no proceedings in Australia seeking the same relief as is sought in the Summons in the Court in Singapore. The husband is seeking an order to maintain his obligation to pay the school fees for [Y]. The Orders of this Court do not extend beyond the children’s 18th birthday or the conclusion of their secondary education.
It was also submitted that the Court should dismiss the wife’s application to enforce Order 17 of the Consent Orders. There was no evidence from the wife or the school to suggest that the father was in arrears or did not pay in accordance with the school policy. The evidence showed that the husband did not indicate that he was not prepared to meet his obligation to meet his obligation to pay the children’s school fees. At the time the wife commenced her application he still had two months “up his sleeve”.
It was also relevant, it was submitted, that the wife had known since October that the husband had paid the school fees up to the end of the school year.
Mr Dura submitted that the Court should consider the circumstances that had led to the husband being unable to make the mortgage repayments. He had suffered an injury and was in hospital. There was a joint approach to the bank by the parties to seek some relief by way of a payment holiday. The brief moratorium was permitted by the bank. The Order provides that the husband should make the payments on the properties as they fell due. It would be unjust in the circumstances to make an order when there had been a joint approach to the bank by the parties.
Given the financial circumstances of the husband the court should exercise its discretion not to enforce the Order.,
The submission was that the Court should leave the Consent Orders unaffected and make orders to distribute the amount in the Trust Account in accordance with Orders 3.4 and 3.5 of those Orders.
Conclusions
There are three separate issues to be decided in this Application. The proceeding has been conducted by way of submissions “on the papers” without any of the evidence being tested. This is a procedure that is quite common in interim applications but the parties here are seeking final Orders. Nevertheless, the Court is not in a position to make findings of fact on areas where there are serious issues between the parties. It is well-nigh impossible to make findings on the credibility of any property. The Court can only take the evidence at face value. Thus, whilst the husband blames the wife for delaying the sale of the properties, the Court is not in a position to make a finding of fact on that issue.
The matters for the Court to decide are:
a)What if any allowance should be made for the fact that the parties received less from the proceeds of sale of their real property in Australia due to the fact that the husband was unable to meet the mortgage payments for a period of three month due to his surgery and hospitalisation?
b)Should the Court make an Order for an amount of SGD $76,193.00 to be paid from the husband’s entitlement of the amount in the Trust Account on account of future school fees for the parties’ daughter [Y]?
c)Should an injunctive Order be made restraining the husband from proceeding with his Application commenced by Summons to the Court in Singapore? Does this Court have jurisdiction to make such an Order?
Order 5 – the Mortgage Payments
Order 5.1 of the Consent Orders placed this obligation on the husband:
Pending settlement of the sale of the properties
5.1 the husband must pay as and when they fall due, all expenses, costs and outgoings associated with the properties including but not limited to all costs associated with the mortgage, all water rates, municipals and the like.
It is common ground that the parties jointly applied for a hardship waiver in respect of monthly payments on the mortgages over the properties and were granted a “payment holiday” for the months of August, September and October 2011. As counsel for the wife pointed out, interest still accrued during the three-month moratorium period. It was not an “interest holiday”.
The wife claims in her affidavit of 13 April 2012 that there was a shortfall of $25,449.62:
13. The respondent’s failure to meet the costs he was obliged to meet pursuant to Order 5 amounted to the following:
(a) Account number [1] (ACT loan) - $5244.91
(b) Account number [2] NSW loan - $12,274.36
(c) Account number [3] (NSW loan) - $7,930.35
(d) TOTAL - $25,449.62
14. Annexed hereto and marked “B” is a schedule confirming the amounts in paragraphs 13(a) – 13(c) and copies of all relevant bank statements from which the summary referred to in the preceding paragraph has been complied (sic).[19]
[19] Affidavit of Ms Leiber 13.4.2012 at [13]-[14]
The Schedule at Annexure “B” actually gives a different total over the three accounts of $26,445.09, made up as follows:
a)Account no. [1] $5,244.91
b)Account no. [2] $12,274.36
c)Account no. [3] $8,925.82.
The difference is in the claimed shortfall for Account no. [3], where the Schedule gives a figure of $8,925.82 as opposed to the claimed shortfall of $7,930.35 in paragraph 13(c) of the affidavit.
This discrepancy is unexplained.
The wife’s schedule appears to be correct, as it was prepared directly from the bank statements that also form part of Annexure “B”.
The bank statements are unchallenged and should be regarded as the best evidence. They confirm that appears to have been a holiday from payments over the August to October period, but with variations between the three accounts.
Account No. [1]
The bank statement for this account shows that the bank sought a payment of $1,186.00 on 24 August 2011, but that amount was debited back the following day, marked “refer to Cust”[20]. Interest and loan service fees of $10.00 were then debited to the account from 29 August to 30 November 2011 without any corresponding credits.
[20] Presumably this means “Refer to Customer”
For the month of December 2011, there were credits marked “payment to loan” of $1,186.00 on the 14th and 28th of the month, each reversed the following day marked “refer to Cust”.
I take this to mean that the bank was expecting fortnightly payments during December which were not made.
Account No. [2]
The statement for this account shows a credit of $2,548.09 marked “Loan Instalment” on 29 August 2011 which was reversed the next day marked “Refer to Cust”. Again, interest and a Loan service fee of $10.00 were debited to the account from 31 August to 28 November 2011 without any corresponding credits.
There were no credits until 29 November 2011, when a credit of $2,548.09 was recorded, marked “Loan Instalment”. This was reversed the following day, marked “Refer to Cust”. Funds from a settlement amounting to $120,836.38 were received on 29 December 2011. There were further credits in January 2012 and the account was closed on 10 February 2012.
Account No. [3]
The statement for this account shows a credit of $2,097.39 marked “Loan Instalment” on 29 August 2011 which was reversed the next day marked “Refer to Cust”. Interest and a loan service fee of $10.00 were debited to the account from 31 August to 28 November 2011 without any corresponding credits.
There were no credits until 29 November 2011, when a credit of $2,097.39 was recorded, marked “Loan Instalment”. It was reversed the following day, marked “Refer to Cust”. Funds from a settlement amounting to $120,099.51 were received on 29 December 2011. There were further credits in January and February 2012 and the account was closed on 10 February 2012.
Payments “as and when they fall due”
The bank statements show that bank was not seeking payments from the parties between 29 August and 30 November 2011 in respect of Account No. [1], between 31 August and 28 November 2011 in respect of Account No. [2], and between 31 August and 28 November 2011 in respect of Account No. [3].
I accept the submission by counsel for the husband that whilst the “payment holiday” was in force, the mortgagee was not expecting monthly or fortnightly payments from the parties, although it was still charging interest. Thus, between those dates, payments of loan instalments could not be said to “fall due” for the purposes of Order 5.1.
The wife had consented to this moratorium on payments, so she cannot be heard to claim that the husband should be solely responsible for interest accrued during that period.
However, counsel for the husband submitted that the Court should exercise its discretion not to enforce payments under Order 5 outside the hardship waiver period, given the husband’s financial circumstances at the time.
I am not persuaded that the Court should exercise its discretion in this way. It was reasonable for the wife to consent to the hardship waiver when she did, but the husband’s financial embarrassment was clearly a temporary arrangement.
As far as can be ascertained, the amounts that the husband should have paid outside the hardship waiver period for Account No. [1] are as follows:
a)$1,186.00 on 24 August 2011;
b)$1,186.00 on 14 December 2011; and
c)$1,186.00 on 29 December 2011.
The total amounts to $3,558.00.
The amounts that the husband should have paid outside the hardship waiver period for Account No. [2] are as follows:
a)$2,548.09 on 29 August 2011; and
b)$2,548.09 on 30 November 2011.
The total amounts to $5,096.18.
The amounts that the husband should have paid outside the hardship waiver period for Account No. [3] are as follows:
a)$2,097.39 on 29 August 2011; and
b)$2,097.39 on 29 November 2011.
Whilst the statement shows an amount of $1,284.03 credited as a loan instalment on 29 December 2011 but reversed the following day marked “Refer to Cust”, it is clear that the settlement funds of $120,099.51 were received by the bank that same day, so the amount of $1,284.03 has not been taken into account.
The total shortfall for Account No. [3] amounts to $4,194.78.
Adding the shortfalls from the three accounts together, the total shortfall for which the husband can be held responsible amounts to $12,848.96. This, it will be noted, is significantly less than the wife’s estimates of $25,449.62 in her affidavit or $26,445.09 in her schedule.
However, it is a figure which should be taken into account, and an adjustment should be made in the wife’s favour of 55% of the shortfall of $12,848.96, which amounts to $7,066.93.
Order 17 – Payment of School Fees
The wife seeks a payment of SGD $76,193.00 from the moneys held in Mr Jessop’s Trust Account to the [A] School Singapore on account of [Y]’s school fees for 2013 and 2014 because she fears that the husband may not pay them. There is no basis for such an order to be made.
There may have been some ambiguity about the husband’s undated letter in Annexure “D” of the wife’s affidavit of 13 April 2012, but it is clear that he had in fact paid the first instalment of the children’s school fees for the year. In the absence of oral evidence, the Court cannot test the husband’s evidence on that point by cross-examination, so the usual difficulty about definitive findings of contested facts continues.
However, it is clear from the husband’s letter dated March 6, 2012 forming part of Annexure “D” that he had decided not to seek a refund of the school fees that he had already paid:
Therefore, I will not be seeking a refund and the school fees have been paid until 15 June 2012. I do, however expect that you will meet your obligation to your children and the school; and pay the fees for the remainder of the year.
The wife commenced proceedings on 24 April 2012. The husband was not in arrears at that time. The Application was premature. It later transpired that the husband paid the school fees for the second half of the year before the matter came on for hearing.
There is no evidence that the [A] School made a demand to either party to pay school fees that was not met. There is no evidence that the husband was ever in arrears in respect of compliance with Order 17.
There is no basis for making the order sought by the wife. It is not appropriate for a “pre-emptive” Application to be made in case a respondent fails to comply with an Order in the future, certainly not in a case where there is no evidence of any past failure to comply.
It is one thing to threaten to cease making payments in the future, which is the highest to which the wife’s case amounts. It is another thing completely to fail to comply with an order, and it is only then that it is appropriate for enforcement proceedings to be commenced.
That part of the wife’s Application will be dismissed.
Court Proceedings in Singapore
The husband has commenced proceedings by means of an Originating Summons (Family Matters) filed on 15 August 2012 in the High Court of the Republic of Singapore. The wife seeks an injunction restraining him from doing anything other to further those proceedings other than to consent to a permanent stay or a dismissal. The wife’s argument is that Singapore is a clearly inappropriate forum and continuation of those proceedings in Singapore would be vexatious and oppressive.
The husband’s argument is that the relief sought in Singapore is not available in this Court. In effect, he argues that the Singapore proceedings cover different subject matter.
The Orders sought in Singapore are set out in the Originating Summons, a copy of which forms Annexure “A” to the wife’s affidavit sworn 10 October 2012. They are, in summary, that:
a)The parties should have joint custody of the two children, [Y] and [X];
b)The husband (described as “the Plaintiff”) should have sole care and control of the child [X] and that the wife (described as “the Defendant”) should have reasonable access, which she should arrange with the child himself;
c)The husband should have the discretion to make the final decision on major issues pertaining to the child [X];
d)The parties should have shared care and control of the child [Y];
e)The wife should place a sum of SGD74000into a Trust Account to provide for the children’s future university education;
f)The husband will be responsible for meeting the children’s school fees at the [A] School and will pay SGD74,000 to the school for that purpose;
g)The parties should pay monthly maintenance to [X] until he attains the age of 21;
h)The parties should pay monthly maintenance to [Y] until she attains the age of 21; T
i)The husband should hold [X]’s passport and birth certificate;
j)The wife should hold [Y]’s passport and birth certificate;
k)Neither party is to take the children out of the jurisdiction of Singapore without the written consent of the other party; and
l)Other ancillary orders.
The proceedings commenced by the husband should be considered in the context that the parties and their children are all Australian citizens permanently residing in Singapore. They have voluntarily submitted themselves to the jurisdiction of this Court. The wife commenced divorce and property proceedings on 9 February 2011 in this Court and when the parties and the children were residing in Singapore. The situation remains unchanged. Applying the decisions of the High Court in Voth v Manildra Flour Mills Pty Ltd[21] and Henry v Henry[22], Australia cannot be said to be a clearly inappropriate forum, nor could it be said that proceedings in this Court would be oppressive or vexatious to either party.
[21] (199) 171 CLR 538
[22] (1996) 185 CLR 571
However, the decisions in Voth and Henry really concern whether proceedings in an Australian Court should be stayed or should continue, not whether proceedings in an overseas Court should be allowed to continue. It is problematic whether this Court has the jurisdiction to injunct a resident of another country from carrying on proceedings in a Court in that country. Subsection 10(3) of the Federal Magistrates Act 1999 would suggest that the Court does not have an extra-territorial jurisdiction.
No argument was led by either counsel as to the jurisdiction of the Court in this regard. If the Court were to make such an injunction, a question arises over its enforceability in Singapore.
The husband argues that relief is available in Singapore that is not available in Australia. To some extent he is right, certainly as far as [X] is concerned.
There are no parenting Orders in existence in this Court. No such orders can be made in respect of [X], because he is now an adult under Australian law. He attained the age of 18 years on 18 June 1994, so this Court has no power to make any parenting order in relation to him under s.65H of the Family Law Act.
It would, however, be open to either of the parties to seek parenting order in respect of [Y], who was born [in] 1997. She will not attain the age of 18 until [omitted] 2015.
The Court has no power to make a child maintenance order in respect of [X], under the provisions of s.66L of the Act, as he has already reached the age of 18. Similarly, the Consent Order relating to him has stopped being in force because it was not expressed to continue in force after that date (see s.66L(3)).
However, the Court still retains jurisdiction in respect of [Y].
These are enforcement proceedings relating to financial issues, and neither party has sought to commence parenting proceedings in this Court. [X] is effectively out of the Court’s jurisdiction because of his age.
In all the circumstances it is not appropriate to make the anti-suit injunction that the wife seeks, restraining the father from continuing his proceedings in Singapore.
Orders to be made
The solicitor, Mr Terence Jessop, is holding the sum of $207,372.44 in his Trust Account. I have found that there was a shortfall of $12,848.96 for which the husband is responsible. Accordingly, the wife should receive as her entitlement under Order 3.4 of the Consent Orders a sum of 55% of the total of $207, 372.44 and the shortfall of $12,848.96, which amounts to $220,221.40.
Thus the wife should receive 55% of $220,221.40, namely $121,121.77 and the husband should receive the balance. The solicitor should be entitled to his costs of acting for the parties if there is anything outstanding.
Costs
If the parties wish to seek an order for costs, they will need to make a specific application within the time provided by Rule 21.02, namely 28 days.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 11 December 2012
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