MARTINE & GOST

[2009] FamCA 842

FAMILY COURT OF AUSTRALIA

MARTINE & GOST [2009] FamCA 842

FAMILY LAW – ORDERS – Clarification

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Langford and Coleman (1993) FLC 92-346

APPLICANT: Ms Martine

RESPONDENT: Mr Gost

FILE NUMBER: MLC 10382 of 2007

DATE DELIVERED: 4 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 August 2009

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the application in a case filed by the wife on 17 June 2009 be dismissed and the response of the husband filed on 17 July 2009 be dismissed.

2. That all proceedings be removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10382 of 2007

MS MARTINE

Applicant

And

MR GOST

Respondent

REASONS FOR JUDGMENT

1. On 19 November 2007, by consent of the parties, a registrar made orders finalising all outstanding property issues between the parties.  Paragraph 4 of those orders is now contentious.  It reads that:

   The wife be responsible for the husband’s capital gains tax liability arising from his share trading within the Westpac broking account as assessed at 30 June 2007 and thereafter the husband be responsible for any tax payable arising from his share trading from that account and any refund of taxation paid in relation to the share trading be paid to the wife.

2. On 27 June 2009 the wife filed an application.  She sought an order that reads:

   An order was made on 19.11.2007 that the husband provide to the wife any refund of taxation paid in relation to the share trading pursuant to court order paragraph 4. 

3. In terms of making an order, that does not make sense.  What the wife seeks is an order that the husband pay to her, the taxation refund that he received of $1503 for the year ended 30 June 2007.  The wife’s application was supported by an affidavit filed on 17 June 2009.  The wife asserts in her affidavit that the husband has failed to comply with the orders.  She annexed all manner of correspondence which is simply evidence of her demands for compliance.  Included in that correspondence is a letter to the husband from the Australian Taxation Office which arises out of a request by the husband for a ruling. 

4. The husband sought a ruling as to whether he was required to pay his “total income tax return” for 2006/7 year as part of the Family Court order.  The Australian Taxation Office replied to his request that:

   The Commissioner cannot provide a ruling.

5. The wife also attached to her affidavit her own observation that the parties’ joint accountant could not provide details of the exact amount owing, owing to privacy issues.  She observed some comment by the accountant but as it is hearsay, and both parties are unrepresented, I ruled that that statement is inadmissible.  There is therefore no evidence from the wife as to what the husband owes under paragraph 4 of the orders of 19 November 2007. 

6. On 17 July 2007 the husband filed a response.  In his response he sought an order that:

   My ex wife, [Ms Martine], pay me my super co contribution which is the sum of $1692.30 which the ATO paid in September 2007 and which I have never received due to my ex wife’s refusal to forward to me.

7. He then went on to also seek some costs.  Like the wife’s application, that specific order was unhelpful.  When asked to define things properly, he said that he wanted his wife’s application to be dismissed.  In support of his application he filed an affidavit as well.  He said the wife’s interpretation of the orders was not right.  He said the orders in paragraph 4 were not “lawful”. 

8. I do not know how he asserts that or why, but it matters little for the purposes of my determination.  He said he made an offer to settle but that at best is an admission against interest that he owes something.  Apparently the wife rejected that offer.  The husband annexed a letter from his accountant saying that his refund was $1500.35, but that says nothing about the words in paragraph 4 of the orders about a refund from share trading. 

9. Albeit this is an enforcement application, the applicant bears the onus of proof. Section 140 of the Evidence Act 1995 (Cth) requires that proof be according to the civil standard under the Evidence Act which is the balance of probabilities.  I do not know what the parties meant by paragraph 4 of the orders, but a court should not go back behind the orders and try to reconstruct them.  See for example Langford and Coleman (1993) FLC 92-346.

10. In any event, the wife has not proved on her interpretation that the refund that the husband received was from share trading.  On that basis, her application cannot succeed and it will be dismissed.  In the matter of Gost, I dismiss the application filed on 17 June 2009 and the response filed on 17 July 2009. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: 10 August 2009