M and M

[2008] FCWA 58

[2008] FCWA 58

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	M and M [2008] FCWA 58
CORAM	:	PENNY J
HEARD	:	11 & 22 FEBRUARY 2008
DELIVERED	:	27 MAY 2008
FILE NO/S	:	PT 2188 of 2001
BETWEEN	:	M Applicant/Wife
AND
M Respondent/Husband
Catchwords:

Spousal maintenance - enforcement application - wife sought that it be dealt with ex parte - application refused - application to be served

Legislation:

Family Law Act 1975 - s 83

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr J Butler
Respondent:	Self Represented Litigant

[2008] FCWA 58

Solicitors:

Applicant:	Butlers
Respondent:	Not Applicable

Case(s) referred to in judgment(s):

M and M(2006) FLC 93-291 M and M[2003] FCWA 124 M and M[2005] FCWA 51

M and M[2005] FCWA 52 M and M[2007] FCWA 85

[2008] FCWA 58

1 The issue before the Court is the Form 2 Application and the Form 17 Third

Party Debt Notice both filed by the wife on 25 January 2008. The wife requested that both applications be heard without notice to the husband. The Form 2 Application seeks the following orders:

“1.	That a judgment be entered against [Mr M] in the amount of $ (to be calculated to the date the Order is made) by way of unpaid spousal maintenance to the date of this Order.
2.	That the Form 17 issue to the Trustee of the [CLP] Superannuation Fund for the judgement amount of $ $ (to be calculated to the date the Order is made).
3.	That the wife cause the Trustee of the [CLP] Superannuation Fund to be served with a copy of this Order as soon as is reasonably possible after the Order issues.
4.	That the Trustee of the [CLP] Superannuation Fund be released from compliance with the existing Injunction to the extent necessary to enable the Trustee to pay to the wife the amount owing by the husband to the wife and shown above in this Order.
5.	Such further Orders as the Court deems appropriate.”

2 Counsel for the wife handed up on 11 February 2008 a Minute of Ex Parte Orders Sought which contained the following:

“Upon the hearing of the Wife’s Form 2 Application filed 23 January 2008
the following Orders are sought by the wife on an ex parte basis:

1. That a judgement be entered against [Mr M] in the amount of $53,928.57 by way of unpaid spousal maintenance to the date of this Order.

2. That the Form 17 Notice issue to the Trustee of the [CLP] Superannuation Fund for the judgement amount of $53,928.57.

3. That the wife cause the Trustee of the [CLP] Superannuation Fund to be served with a copy of this Order as soon as is reasonable possible after the Order issues.

4. That the Trustee of the [CLP] Superannuation Fund be released from compliance with the existing Injunction to the extent necessary to enable the Trustee to pay to the wife the amount owing by the husband to the wife and shown above in this Order.

5. That as soon as possible after service on the Trustee the wife cause the husband to be served with copies of the Form 2 Application, Affidavit in support, Form 17 Notice, Minute, and these Orders.

[2008] FCWA 58

6. That the proceedings be otherwise adjourned to ____________ .”

3 The amount of unpaid spousal maintenance arises out of a judgment delivered

by Thackray AJ (as he then was): M and M [2003] FCWA 124. In that judgment, his
Honour stated:

“Spousal Maintenance

186 Mr Castiglione acknowledged that if the wife received “fairly close” to what she was seeking by way of property settlement, “fairly significant circumstances” would be needed to justify an award of spousal maintenance. He said the claim had been made in case the wife [received] a settlement closer to that proposed by the husband.

187 As a result of the property orders, the wife will have a home free from encumbrance, and hundreds of thousands of dollars to invest. She has the capacity to work full time and earn sufficient to meet living costs. She will therefore have no need for spousal maintenance once she has received her settlement.

188 At present the wife’s only income is child support and social security. Section 75(3) of the Act expressly requires me to disregard her entitlement to social security benefits when assessing her entitlement to spousal maintenance. Although she has the capacity to work as a teacher, she gave up relief teaching just before the trial and I consider it is unlikely that she will be able to obtain full-time employment until the new school year begins. In the meantime I find that she is unable to maintain herself at a reasonable standard of living without support from the husband.

189 No submissions about the quantum of maintenance were made at trial; however, the wife’s personal costs of living clearly exceed $250 per week. I have determined that the husband should pay $250 per week by way of spousal maintenance until the wife receives her settlement, or until she obtains full time employment whichever is the sooner. The husband can well afford this amount from his tax-free income of not less than $70,000, as he has no one else to support but himself and [the son]. However, he may be stopping work for a few months to have treatment for his eye, and I accept that he will be unable to pay spousal maintenance during that time.”

4 His Honour on 20 October 2003 made the following orders:

“4. The husband do pay to the wife the sum of $250 per week spousal maintenance until payment by the husband of the wife’s entitlement by way of adjustment of property interests or until the wife shall commence full-time employment, whichever shall first

[2008] FCWA 58

occur. The first date for payment of maintenance pursuant to this
order shall be 1 November 2003.

5. The wife shall advise the husband forthwith in writing in the event that she obtains employment.

6. The husband’s obligation to pay spousal maintenance shall be suspended during any period in which he is unable to work whilst undergoing medical treatment, provided that he has furnished the wife with a medical certificate verifying his inability to work.”

5 These were final orders for spousal maintenance, Tolcon J having made the following orders on 21 July 2003:

“3.	All applications before the court be consolidated for hearing on 23 September 2003 and, if no spousal maintenance application is currently before the court, leave be granted to the wife to have such dealt with by the trial judge.
4.	The interim application of the wife for spousal maintenance to be dealt with by the trial judge, by way of withdrawal or dismissal.”

Background

6 The wife’s entitlement by way of adjustment of property interests was set out in

Court orders made on 28 November 2003. Those orders provided for the husband to pay to the wife the sum of $393,934 within 60 days or, in default of payment within 90 days, sale of a property at [the coast] and a specified distribution of the proceeds.

7 The husband mortgaged the [the coast] property before it was sold, in breach of

an injunction made by consent on 23 March 2001. Orders were made for the sale of the property on 10 August 2004. Upon the sale of the property and receipt of the net proceeds, the wife’s property settlement entitlement was not satisfied.

8 The husband’s email sent 25 February 2005, which is annexure “QQ” to the affidavit of [Ms T] filed 29 April 2005, provided:

“a year ago I placed a large mortgage on the house at [the coast] because she got 57% of it in the divorce and headed off [overseas]. The house was sold and she got nothing out of it and was left with a large bill with her solicitor. Now I have a summon out on me wanting to get back the back the money ?? Things are never simple, so I have purchased a yacht and I will be sailing in about three weeks time. I would like to keep this to myself as the less people know about it the better ?? If the Yacht does not work I will try and do a deal with [the wife] she must be broke as I have not paid any maintenance for a year now although she has a full time job teaching however that does not pay were much.”

9 The wife brought proceedings against the husband for contempt. In her

contempt application, she asserted his spousal maintenance arrears then stood at

[2008] FCWA 58

$16,500. On 9 March 2005, a warrant was issued for the husband’s arrest. The husband pleaded guilty to contempt of court on 6 May 2005: M and M[2005] FCWA 51. As he read a statement to the Court in mitigation of the contempt, the husband indicated he was willing to pay his superannuation to the wife as a way forward. Queen’s Counsel for the wife referred to the concession on 13 May 2005 and a further injunction was made in respect of the superannuation.

10 The husband was sentenced to an indefinite term of imprisonment on 13 May

2005: M and M [2005] FCWA 52. His appeal against the sentence was dismissed: M and M (2006) FLC 93-291. Orders were made on 5 July 2007 for his release: M and M [2007] FCWA 85.

11 In his Form 13 Financial Statement filed on 3 April 2007, the husband said:

“Order made 20 October 2003 for [the husband] to pay weekly maintenance. [The husband] payed first payment on 01 November 2003, but no further payments have been made since.”

12 In an affidavit filed by the wife on 13 July 2005, the wife said:

“34. My solicitors are presently investigating my husband’s Commonwealth Superannuation, and how it can be transferred to me by way of recovering part of the amounts presently owed to me by my husband.”

13 The wife has since sued her former solicitors in the Supreme Court for breach of

contract and negligence in relation to instructions to place a caveat on the [the coast] property. Her Amended Statement of Claim, which is annexure “A” to her affidavit filed 9 November 2006, pleaded:

“13.	On 20 October 2003 the Family Court of Western Australia ordered the Husband to pay to the Plaintiff spousal maintenance of $250 per week until such time as payment by the Husband of the Plaintiff’s entitlement by way of adjustment of property interests or until such time as the Plaintiff commenced full time employment.
14.	The Plaintiff [sic] has only ever paid the total amount of $1,000 by way of spousal maintenance, and has otherwise defaulted in the performance of the order referred to in the preceding paragraph. The Plaintiff has not commenced full time employment.”

14 The litigation between the wife and her former solicitors settled. The Settlement

of Claim deed provides for the wife’s former solicitors to pay the wife a specified sum and for the wife to pay to her former solicitors all monies not exceeding that sum received by her from the husband in discharge of amounts owing pursuant to orders made in the Family Court proceedings, excluding the funds in the husband’s Commonwealth Super Select Fund Account and excluding child support.

15 It would appear, on the documents currently before me, that the husband has

never made payment of the wife’s entitlement by way of adjustment of property
interests and the wife has not commenced full-time employment.

[2008] FCWA 58

The Superannuation Fund

16 The wife’s former solicitors have earlier applied for information as to the

husband’s interest in the [CLP] Superannuation Fund. As at 12 August 2004, the Preserved Portion of the fund was $61,157. On 30 August 2004, the following orders were made on an ex parte basis:

“1.	Until further order the trustee of the [CLP] Superannuation Fund be restrained and an injunction issue restraining him or her from releasing any of the funds held for superannuant [Mr M], the First Respondent in these proceedings, held in any superannuation fund in which the said [Mr M] is named as the superannuant but in particular [CSS] Fund Account No: xxxxxxxxx
2.	The [husband] have liberty to apply to set aside this order on giving fourteen (14) days notice to the wife’s solicitors.
3.	The Trustee of the [CLP] Superannuation Fund have liberty to apply to set aside this order on giving short notice to the wife’s solicitors.”

17 On 13 May 2005, the following order was made:

“4. Until further order of the Court, the First Respondent be restrained and an injunction is hereby granted restraining him from dealing in any way with his superannuation fund, and in particular in providing in lieu to anyone in relation to it.”

18 The “Preserved Portion” of the fund as at 10 January 2008 was $94,388. The

non-preserved portion was nil. In response to a Family Law Information Request,
Commonwealth Financial Services responded on 10 January 2008 as follows:

“The member’s superannuation interest in the fund is a fully vested accumulation interest, which was in the growth phase at the Appropriate Date.”

19 On 12 August 2004, Commonwealth Financial Services had responded to a

similar request in a different way. The response is annexure “O” to the wife’s affidavit filed 9 May 2005 and annexure “B” to the wife’s affidavit filed 24 August 2004:

“The member’s superannuation interest in the fund is an accumulation
interest, which was in the growth phase at the Appropriate Date.”

20 Third Party Debt Notices, pursuant to rule 20.30 of the Family Law Rules 2004, are applicable to “money deposited in a financial institution that is payable to a payer on call or on notice” or “money payable to a payer by a third party on the date when the enforcement order is served on the third party”. Counsel for the wife drew attention to the addition of the wording “fully vested” to indicate that the husband’s superannuation was now payable and could be called upon by the husband but for the injunctions of this Court.

[2008] FCWA 58

21 For my part, I have reservations as to whether the term “fully vested” means

exactly that. I consider the phrase “fully vested accumulation interest” may well have been added by the trustee to differentiate the type of interest held by the husband from a “partially vested accumulation interest” as defined in regulation 9 of the Family Law (Superannuation) Regulations 2001.

22 The husband was born [in] September 1950 and is therefore 57 years of age. He

is not yet 65 and it is not apparent a condition of release has been satisfied,
notwithstanding the husband has reached his “preservation age”.

Should the applications be heard without notice to the husband?

23 Rule 20.32 of the Family Law Rules 2004 provides:

“20.32 Request for Third Party Debt Notice

(1)	A payee may, without notice to the payer or third party, ask a Family Court to issue a Third Party Debt Notice requiring the payment to the payee of any money to which this Part applies by filing:
(a)	3 copies of the Third Party Debt Notice; and
(b)	an affidavit.”

24 In her affidavit filed on 25 January 2008, the wife states:

“3.

I request the Form 2 be heard ex-parte and the Form 17 be issued because of my former husband’s previous acts of dishonesty, and contempt for Orders of the Court.

4.

I have no doubt that once my former husband is served with my Application, he will attempt to defeat my actions in seeking to access his superannuation to recover amounts owing to me by him My former husband has already shown in previous proceedings that he is willing to forge, alter and otherwise tamper with documents, to deliberately conceal pertinent facts and relevant information so as to frustrate my attempts to discover his true financial position”

25 I have also considered the husband’s affidavit in answer to specific questions filed on 7 October 2002, some two or so years prior to the Court making injunctions:

“26.	The only asset that I have disposed of since separation [in] 1995 is my Commonwealth Superannuation Fund. At present I am seeking to realise my interest in my Commonwealth Super/Select Account. I expect [to] receive approximately $46,000 from such account. I intend to utilise such monies to pay future legal costs and to repay a debt to [Mr N].
…

[2008] FCWA 58

30. [T]he only superannuation I hold is a policy previously referred to which is in the process of being liquidated.”

26 In an email sent on 12 October 2003, which is annexure “DD” to the affidavit of [Ms T] filed 29 April 2005, the husband wrote:

“[Mr N],

The exwife can get her hands on my super which I have with the Commonwealth Bank there is AUD$56,000.00 in there, I can not cash in on this until I am 55 ?? a few years short ??

I need you to go to a solicitor and get a lien over this super of say $50,000.00 For you to do this I will give you AUD$10,000.00 out of the 50,000 not bad for a few hours work.

Go to a solicitor and say that I owe you 50,000 and that I am prepare to sign a lien or what ever to make sure that you receive the 50,000 ?? You get 10,000 and I get 40,000 ??”

27 After [Mr N] responded, the husband’s email in reply dated 13 December 2003

reads:

“Just inform the solicitor that this is the only asset I have some you best get something secured on it I don’t know what as the money is in a super fund I am not sure it this makes any difference or not ?? I just do not want that bitch getting here hands on it ??”

28 In an email dated 23 October 2003, which is annexure “H” to the affidavit of [Ms T] filed 29 April 2005, the husband said:

“I have attached a letter to the Commonwealth Bank requesting that I cash in the Superannuation could you post this or get [N] or [S] to post it. This will mean you will need to print this out for them, this is important as I have no cash left ???”

29 In my opinion, the injunctions restraining both the husband but particularly the

trustee of the husband’s superannuation fund are a sufficient measure against the husband accessing his superannuation. The fund statement provides it is “subject to a Payment Flag”.

30 I consider it would be improper to make the orders sought in the Form 2

Application without notice to the husband. The effect of issuing a Third Party Debt Notice without notice to the husband would be to deprive him of the opportunity of responding the wife’s Form 2 Application as to the amount owed by making such application as he sees fit.

31 Firstly, the Court may retrospectively modify spousal maintenance orders

pursuant to s 83 of the Family Law Act 1975. I consider it at least arguable that, since the spousal maintenance order was made, the circumstances of the wife have so

[2008] FCWA 58

changed or the circumstances of the husband have so changed so as to justify the
Court making an order decreasing the amount ordered to be paid.

32 It is arguable from the judgment of Thackray AJ that:

(a)	the spousal maintenance order made was intended to last for a period of a few weeks or months rather than a number of years;
(b)	the wife had no employment income at all at the time the order was made;
(c)	the wife, in 2003, had the capacity to work full-time and earn sufficient to meet her living costs;
(d)	Thackray AJ determined it was unlikely that the wife would obtain full- time employment until the 2004 school year began in a few months’ time; and
(e)	the husband could reasonably contribute $250 per week from the $70,000 tax-free income the husband earned at the time.

33 The wife’s application is such that she is asserting the husband has accrued

arrears of spousal maintenance over a period of five years including those years in which he was incarcerated. Her case is that the husband is continuing to accrue arrears and will continue to do so until either of the two conditions specified in the orders of Thackray AJ is satisfied. The husband should have the opportunity of responding to this application.

34 Secondly, the husband should have the opportunity of adducing medical

evidence in accordance with order 6 of the orders made on 20 October 2003. I note that as early as 28 November 2003, Ms Braddock SC on behalf of the husband sought to adduce evidence in relation to the spousal maintenance orders made by Thackray AJ, which was rejected at the time as being relevant primarily to enforcement proceedings such as those currently before me:

“MS BRADDOCK: … The other matter that might be appropriate to raise now, although I could come back to it at a later stage, concerns the spousal maintenance order that your Honour has already made. My understanding is that orders was both conditioned by the wife obtaining employment and by the husband’s incapacity for employment should that arise. I’ve recently been supplied with two further medical reports concerning Mr Myers’ eye condition which, taken together, would indicate that he proposes - -

MR CASTIGLIONE: I have to object, if I may.

MS BRADDOCK: Well, I’ve supplied my learned friend with copies of these. I have no doubt that my learned friend will have comment to make upon what should be done about the reports but I’m simply advising the those reports that he will be undergoing treatment commencing on the 1st court of the position on my instructions and that it would appear that from

of December, effectively, next week for a period of 3 months.

[2008] FCWA 58

HIS HONOUR: Well, my orders suspended the spousal maintenance for any period that he’s unable to work whilst undergoing medical treatment provided he’s furnished the wife with a medical certificate verifying his inability to work.

MS BRADDOCK: That is the position now. If my learned friend is of the - - with a view that these are insufficient for that purpose then I would obviously seek clarification of that and your Honour’s view in the matter; what a medical certificate means when the treatment is overseas is a difficulty.

If I might just hand those up for the time being. They’re not in sworn form or anything of the kind and I’m not seeking to put them in that category, your Honour.

HIS HONOUR:	Thank you.
…

MR CASTIGLIONE: Did you want to hear me, your Honour, on those reports handed up? I’m not sure what - -

HIS HONOUR: I’m just wondering whether Miss Braddock considers that the reports come within the provisions of the order that I’ve already made.

MR CASTIGLIONE: Well - -

HIS HONOUR: Because then it’s simply a question of argument about enforcement later on rather than me ruling at this stage about what they mean.

MR CASTIGLIONE: Because I - - if they’ve gone in in support of an oral application then I’m sort of - - I suppose I’m mandated to comment right now because we see fundamental difficulty - - I should state for the record that we see fundamental difficulties with the reports for these reasons; firstly - -

…

HIS HONOUR: My view is that the orders relating to spousal maintenance have now been made … - - and the question of whether or not the husband’s current circumstances allow him to avail himself of the provisions of paragraph 6 of the order that I’ve already made is the question that needs to be determined at some later stage.

MR CASTIGLIONE: Yes. And I would simply end by saying, your Honour, that we would need to make our position clear, we don’t accept those reports that have been handed up to you now.

[2008] FCWA 58

HIS HONOUR:  Yes. All right. Miss Braddock, on that basis I’ll

return these to you unless you wish to press anything - -

MISS BRADDOCK: I’m obliged, your Honour, and I’m sure that my learned friend having made that position clear we can have some useful subsequent discussion.”

35 The wife’s former solicitors in correspondence dated 3 December 2003, which is annexure “A1” to the wife’s affidavit filed 10 February 2004, said:

“Apparently there was an attempt by your Senior Counsel at the last appearance in Perth to submit a copy of a report dated 11 November 2003 from [Dr D] and another one dated November 20, 2003 from [N Clinic] and Lab [(Dr T)], and you have already filed an Affidavit and report from [Dr S] in relation to the same alleged condition suffered by your client.

Would you please have your client sign the three authorities faxed herewith [addressed to the doctors] urgently and return the same to us signed, as although [Mr M] paid the first week’s spousal maintenance and child support, this week he paid only child support, and presumably that has something to do with his health condition. In any event, as it has been made clear by Counsel that you are relying on that, the information sought in the three authorities is required by us so that the case can be properly addressed.”

36 In my opinion, the litigation is presently at the later stage contemplated by

Thackray AJ and it would be appropriate for the husband to have the opportunity to seek to adduce those medical reports or any subsequent medical certificates.

37 Thirdly, and more importantly, I have doubts as to whether the superannuation is

in fact presently payable. I consider the trustee of the[CLP] Superannuation Fund
should be given notice of the orders sought by the wife.

Proposed Orders

1. That within 14 days the applicant, [Mrs M], serve copies of her Form 2 Application, affidavit and Form 17 Third Party Debt Notice all filed on 25 January 2008 and Minute of Ex Parte Orders Sought dated 11 February 2008 on:

(a)	the respondent, [Mr M]; and
(b)	the trustee of the[CLP] Superannuation Fund Account.

2. A copy of this judgment be distributed to the trustee of the[CLP] Superannuation Fund.

3. The proceedings be otherwise adjourned to a date to be fixed.

I certify that the preceding [37] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

[2008] FCWA 58

Associate