Massey and Massey

[2009] FamCA 17

FAMILY COURT OF AUSTRALIA

MASSEY & MASSEY [2009] FamCA 17

FAMILY LAW – ENFORCEMENT OF ORDERS – Monies to be paid - Costs

Family Law Act 1975 (Cth)

APPLICANT: MS MASSEY

RESPONDENT: MR MASSEY

FILE NUMBER: MLF 2141 of 2005

DATE DELIVERED: 22 JANUARY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 22 JANUARY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SKERLJ

SOLICITOR FOR THE APPLICANT: GARDEN & GREEN

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT on or before 31 March 2009 the husband pay or cause to be paid to the wife or the wife’s solicitor a sum of $44,450.

2. THAT the sum of $44,450 is made up as follows:

   (a)a child arrears sum of $31,200 as per the original orders and reasons for judgment delivered in the s79 proceedings;

   (b)a sum of $4,250 pursuant to paragraph 4 of the order dated 27 October 2008;

   (c)a sum of $9,000 as being the costs sum determined to be just pursuant to the extempore reasons for judgment delivered this day.

3. THAT otherwise all extant applications are adjourned for listing before Young J on Tuesday 7 April 2009 at 10.00 a.m.

4. THAT if the husband has paid the total sum of $44,450, and advised the court in writing accordingly then the attendance of the parties at that further hearing date is excused.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2141 of 2005

MS MASSEY

Applicant

And

MR MASSEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Massey is again listed before me.  The husband now appears for himself, Mr Skerlj appears for the wife.

2. On 27 October 2008 I made certain orders to facilitate the payment of outstanding child support capital payments and also reserved all costs to this day. 

3. I did require a further specific payment of $4,250 to be made by 22 January of this year.  That order was by consent, but the moneys have not been paid.

4. The husband, in his usual polite and efficient manner, has advised the court of the perils of living on the land, of climate, of rain, of crop and harvest.  I well understand those issues.  The current position is that there is approximately 650 tonne of grain, of various type, available to be transported to market and sold.  Grain prices have reduced.  I also understand that there are substantial moneys owing to Rural Finance and all the costs of operating the farm.  Nevertheless, the reality in this case is that the husband has managed to retain his ownership of land and equipment, with some exceptions.

5. What is outstanding is a child support sum of $31,200, that was carefully enunciated in the reasons for judgment.  There was the additional sum of $4,250 that was owing pursuant to my prior order.  The additional sum sought by Mr Skerlj today was in payment of all past costs and disbursements.  The figure initially sought was $11,100. 

6. I have received, by way of submission, a careful breakdown of that figure.  It encompasses counsel fees on three occasions before me, service and agency fees and other solicitor costs.  In the bigger picture of fees and costs charged, these sums are relatively modest and I have no doubt proper.  I have determined to cut the $11,100 back to $9,000 in view of certain concessions made by Mr Skerlj. 

7. Under section 117 of the Family Law Act 1975 my obligation is to determine whether any award of costs is just. The starting position for a consideration of costs is that they are normally paid by each of the parties themselves and that they are responsible for their own costs. The court’s discretion is to award costs if that order is found to be just in all of the circumstances of the case. In that regard the court must consider the various factors identified in paragraph 2A of that section. This I have done and I am very well informed as to all of the financial matters and facts of this case. I have had the benefit of listening carefully to the husband update his current financial position and liabilities. I am aware of his income earning capacity but of course that varies from season to season. There are moneys outstanding under my judgment. For whatever reason the husband has had the benefit of time. The wife has been without the moneys, particularly the child support sum of $31,200. The moneys must be paid and I will ensure they are paid. I find that it is just that $9000 be paid as costs.

8. Mr Skerlj now seeks the immediate sale of property, particularly the parcel of land known as C property which was earlier identified by me in my substantial reasons for judgment which are now published.  I do understand the logic behind an immediate sale and no doubt that would be acceptable to the wife. 

9. The husband has advised me that he is now in a position, having completed the farm harvesting and other jobs, to start transporting grain to market.  Once transported there is a payment pause of 28 days before moneys are received and that would seem commercially reasonable.  I accept the husband has little or no capacity to negotiate any earlier payment when he is dealing with a publicly listed company or other large grain merchants. 

10. What I have made perfectly clear to the husband is that his obligation is to pay the sum of money which I will confirm in orders and those moneys must be paid to the wife or the wife's solicitors by the end of March. 

11. I will list this matter before me on 7 April 2009 at 10 am.  If all moneys are paid and if the court is properly advised by the wife's solicitors, then I do not expect any appearance and the parties do have to travel, the wife from the peninsula region and the husband from western Victoria, for that hearing.  If the moneys or indeed if any part of the moneys are not paid, then the reality in this case is the appropriate enforcement will see the sale of land and clearly a parcel of land that will sell quickly and if it be the best of the land, then so be it. 

12. I record in these reasons for judgment that I am in reality extending a further indulgence to the husband.  He may not see that to be the case, but that is the effect of what I am doing to cash moneys to be paid. 

13. I emphasise in the judgment that if the matter comes before me and I read again there are moneys outstanding, then the consequences will most likely be a sale.  As simple as that though of course I will fairly and substantially decide every issue from time to time on the facts of the case as they are then presented to the court.

14. The money to be paid in total by the husband is $44,450.  That is inclusive of all and any costs and arrears of costs, child support and other payment sums pursuant to the order. 

15. I will not set up a timetable for payment, but I take the husband at his word that he will commence payment to the wife's solicitors after the 28-day period and as soon as he has some money.  I do not expect that he will hold it all back for one payment in late March.

16. I will have these reasons transcribed and placed on the court file so that I know and the parties clearly know the consequences of any part of non-payment.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: