Lotta and Lotta (No 2) - [2015] FamCA 551

FAMILY COURT OF AUSTRALIA

LOTTA & LOTTA (NO 2)

[2015] FamCA 551

FAMILY LAW – PROPERTY – Spousal maintenance – Application seeking enforcement of arrears of spousal maintenance previously ordered – where it was communicated by the wife’s solicitors to the husband that she was “no longer pressing” her spousal maintenance application – where wife received significant funds from the sale of property subsequent to spousal maintenance order – where the wife is now in a de facto relationship – where orders enforced in part.

Family Law Act 1975 (Cth) s 105
Family Law Rules 2004 (Cth) r 20.07

Collins, MH and Olsthoorn, QPW [2005] FamCA 138
Ramsey (No 2) (1983) 8 Fam LR 1005
Watson & Watson [2006] FMCAfam 293

APPLICANT:

Ms Lotta

RESPONDENT:

Mr Lotta

FILE NUMBER:

PAC

3435

2013

DATE DELIVERED:

17 July 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

12 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Beck

SOLICITOR FOR THE APPLICANT:

Thurlow Fisher Lawyers & Consultants

SOLICITOR FOR THE RESPONDENT:

Samuel Jones Legal Services

Orders

That the amount owing by the husband to wife by way of spousal maintenance as ordered on the 14 November 2013 is $14,800.
That the husband pay $14,800 within 14 days from this date to the wife or as she may otherwise direct the husband in writing.
In default of the husband paying the sum provided for in Order 2 the wife is appointed trustee for sale of the whole of husband’s public company shareholdings in IAG and AMP at the best price reasonably obtainable and for the purposes of this order the said shares shall vest in the wife and the wife shall thereupon pay the proceeds of sale as follows:
(a)       In payment of $14,800 to herself,
(b)       In payment of reasonably incurred selling costs and costs incurred in enforcing these orders if any,
(c)       In payment of the balance then remaining to the husband.
That the husband do all necessary things and sign all necessary documents to give effect to these orders.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the registrar of the Court is appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
That the wife file and serve submissions as to costs sought if any within 14 days from the date of these orders and the husband file and serve any submissions in response within a further 14 days.
Liberty to apply as to implementation or enforcement of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lotta & Lotta has been approved by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lotta and Lotta (No 2)

Details

AGLC: Lotta and Lotta (No 2) [2015] FamCA 551
Case: [2015] FamCA 551
Decision Date: 17 July 2015

CaseChat Overview and Summary

In the matter of Lotta and Lotta (No 2), Foster J considered the outstanding spousal maintenance obligations of the husband to the wife. The dispute centred on the quantum of arrears and the method of their recovery.

The court was required to determine the precise amount of spousal maintenance owing by the husband to the wife, and to make orders for the payment of this sum. Further, the court needed to establish a mechanism for the enforcement of the maintenance order in the event of the husband's default.

Foster J ordered that the husband owed the wife $14,800 in spousal maintenance. The husband was directed to pay this amount within 14 days. In default of payment, the wife was appointed trustee for sale of the husband's shareholdings in IAG and AMP, with the proceeds to be applied first to the maintenance arrears, then to selling costs and enforcement costs, and any balance to the husband. The court also made orders for the execution of necessary documents and granted liberty to apply regarding the implementation or enforcement of the orders.

Orders

Orders of the court

That the amount owing by the husband to wife by way of spousal maintenance as ordered on the 14 November 2013 is $14,800.

That the husband pay $14,800 within 14 days from this date to the wife or as she may otherwise direct the husband in writing.

In default of the husband paying the sum provided for in Order 2 the wife is appointed trustee for sale of the whole of husband’s public company shareholdings in IAG and AMP at the best price reasonably obtainable and for the purposes of this order the said shares shall vest in the wife and the wife shall thereupon pay the proceeds of sale as follows:

(a) In payment of $14,800 to herself,

(b) In payment of reasonably incurred selling costs and costs incurred in enforcing these orders if any,

That the husband do all necessary things and sign all necessary documents to give effect to these orders.

That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the registrar of the Court is appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

That the wife file and serve submissions as to costs sought if any within 14 days from the date of these orders and the husband file and serve any submissions in response within a further 14 days.

Liberty to apply as to implementation or enforcement of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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