Massalski & Riley (No 5)

Case [2022] FedCFamC1F 835


Federal Circuit and Family Court of Australia

(DIVISION 1)

Massalski & Riley (No 5) [2022] FedCFamC1F 835

File number(s): SYC 496 of 2015
Judgment of: HARPER J
Date of judgment: 28 October 2022
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where orders for the payment of council rates, strata registration fees and strata insurance have been made – Where the payment of rates, registration fees and insurance were to be borne equally by the parties – Where the wife has not paid her portion of the rates, fees or insurance – Where the husband seeks payment from the wife for the payments he made which were required to be made by the wife – Where charge ordered over the wife’s property to secure payment of outstanding moneys owed – Where an enforcement order was made and a receiver appointed to the property of the wife – Where husband seeks variation of the enforcement order to declare the total amount owed by the wife – Variation of enforcement order to include a declaration of the amount owing by the wife to the husband.
Legislation:

Family Law Act 1975 (Cth) s 102QB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 11.01, 11.04, 11.05, 11.07

Cases cited:

Massalski & Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36

Massalski & Riley (No 3) [2022] FedCFamC1F 562

Division: Division 1 First Instance
Number of paragraphs: 24
Date of last submission/s: 17 August 2022
Date of hearing: On the papers
Place: Sydney
The Applicant: Litigant in person
Solicitor for the Respondent: Brynes Legal

ORDERS

SYC 496 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MASSALSKI

Applicant

AND:

MR RILEY

Respondent

order made by:

HARPER J

DATE OF ORDER:

28 October 2022

THE COURT ORDERS THAT:

Order 3(d) made on 5 August 2022 be varied to read as follows:

A declaration that the wife owes the husband the sum of $22,157.18 on account of payments made by the husband which were required to be made by the wife pursuant to the orders of:

(i)11 March 2016;

(ii)3 June 2016; and

(iii)24 December 2019

("the orders") and the payment of interest on such amounts pursuant to s 117 of the Act.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Massalski & Riley has…

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AGLC
Massalski & Riley (No 5) [2022] FedCFamC1F 835
Case
[2022] FedCFamC1F 835
Decision Date

CaseChat Overview and Summary

The case Massalski & Riley (No 5) involved the husband seeking enforcement of various orders against the wife for unpaid fees related to property at F Street, Suburb G NSW. These included fees for the registration of the strata plan, strata insurance, and council rates. The husband claimed that despite previous orders, the wife had not fulfilled her financial obligations. The court was tasked with determining whether the husband had established a valid basis for these claims and whether the wife's obligations under the prior orders could be enforced. Additionally, the court had to decide if the wife's contentions made during a mention were to be considered, given that she did not provide any written submissions or an affidavit.

The court found that the husband had established his claims for the registration of the strata plan and half of the legal fees associated with it. However, the court did not find it appropriate to include the wife’s share of insurance premiums following the subdivision of the property at F Street, nor half of the legal costs incurred to negotiate a payment plan with the H Council. The court concluded that the prior orders were enforceable obligations and that the wife owed $22,157.18 under these orders. The court proposed to vary the enforcement order to reflect this amount, which could then be recovered by the receiver appointed.

The final orders of the court declared that the wife owed $22,157.18, which could be recovered by the receiver appointed. The court did not consider the wife's contentions made during the mention as she had not provided any written submissions or an affidavit in response to the husband's claims. The court emphasised that the wife’s obligations under the prior orders were enforceable, and the husband was entitled to seek enforcement of these obligations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

During the mention on 10 August 2022, the wife made a number of statements from the bar table suggesting that her obligations to pay the sums outlined above were discharged by a consent order made on 11 December 2018. I granted leave to the wife to file any written submissions or an affidavit within 21 days of 17 August 2022. She did not file any material. Accordingly, I will not have any regard to these contentions.Conclusion The husband claims a total of $23,308.34. However, as outlined above at [18] and [20], I do not find it appropriate to include in this sum the wife’s share of insurance premiums following the subdivision of the property at F Street, nor half of the legal costs incurred to negotiate a payment plan with the H Council. The prior orders were all enforceable obligations to pay money (r 11.01(1)(a) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). These obligations may be enforced by the husband as a party (r 11.04(a)). Order 3 made on 5 August 2022 appointing a receiver is an enforcement order (r 11.05(d)). The Court may vary an enforcement order pursuant to r 11.07(n) and declare the total amount owing under an obligation (r 11.07(a)). Therefore, I propose to vary Order 3 made on 5 August 2022 to declare the wife owes $22,157.18 pursuant to the prior orders. This amount can then be recovered by the receiver.

Ratio Decidendi

Legal Principle Established

The husband’s evidence was that despite all the above orders, the wife has failed to comply with any of the orders requiring her to pay her portion of the fees associated with:(a)The registration of the strata plan at Unit 1 and Unit 2 F Street, Suburb G NSW;(b)Strata insurance; and(c)Council rates.Registration of strata plan The husband gave evidence that he paid all costs and fees associated with the registration of the strata plan, despite the orders of 24 December 2019 for the parties to bear the costs equally. This amounted to a total of $7,015.80, of which he now seeks half, being $3,508, pursuant to Order 10 of 11 March 2016. The husband also claimed half of the legal fees for his solicitor to register the strata plan. He annexed a copy of the tax invoice, which covered costs only with respect to the registration of the strata plan. The fees were said to be greater than usual owing to the need to approach the Court to sign documents on the wife’s behalf, pursuant to s 106A of the Act. I find it appropriate to include half of the legal fees incurred, being a total of $6,407.34Insurance Following the registration of the strata plan, the parties were to take out insurance to cover the plan. The husband’s evidence was that he paid a total sum of $1,567.94, however he now only seeks half of the sum that had originally been quoted to him on 27 May 2021, being $1,466.42. Accordingly, his claim now is for $733. It is not clear upon which order the husband now bases his claim for insurance coverage. Orders 17 and 18 of 11 March 2016 provided for the wife to pay all building insurance and public liability insurance premiums for Unit 1 of the property at F Street, and for the husband to do the same for Unit 2. Those orders were expressed as being made “pending further order,” indicative of their interim nature. This is further supported by the fact that the property at F Street was only subdivided following the final orders of 24 December 2019. Orders for the wife to bear the costs of insurance premiums for Unit 1, and the husband to do so for Unit 2, are not the same as an order for each party to bear half of the costs of the new strata plan. I am not satisfied that the husband has established a basis for these costs.Council rates Finally, as seen above, the orders of 3 June 2016 required the wife to pay half of all council rates. The wife paid a sum of $686.30 on or about late 2016, but, according to the husband’s solicitor, has not paid any other amounts due. He set out the history of payments at [75]–[92] of his affidavit filed on 27 July 2021. In summary, the wife is said to owe a total of $12,659.84, being half of the following payments:(a)A statement obtained from H Council for the period early 2016 to late 2020, showed a total of $14,575.25 having been paid by the parties. The wife’s share is $7,378.62, less the amount she already paid of $686.30, leaving $6,701.32 outstanding;(b)The husband paid the sum of $1,280 in late 2015, with half of that sum being $640;(c)In early 2021, a water bill was issued in the sum of $437.04. The husband seeks half of the sum, being $218.52; and(d)In late 2020, the H Council filed a Statement of Claim against both parties for unpaid rates. The husband entered into a payment plan with the Council to pay the whole amount, being $9,364.14. He claims half of this amount, being $4,682; and (e)The husband submits that he incurred legal costs in negotiating the above settlement. He claims a 50 percent contribution from the wife in the sum of $418.