Nixon and Nixon - [2011] FamCA 919

FAMILY COURT OF AUSTRALIA

NIXON & NIXON

[2011] FamCA 919

FAMILY LAW – payment of spousal maintenance

APPLICANT:

Ms Nixon

RESPONDENT:

Mr Nixon

FILE NUMBER:

MLC

2061

2009

DATE DELIVERED:

14 November 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

14 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O'Shannessey

SOLICITOR FOR THE APPLICANT:

Kliger Partners

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

That the hearing date for this case being 19/3/12 shall be vacated and it is listed for a 5 day hearing from 10am on 26/3/12 before Justice Dessau.

That the husband owes to the wife the sum of $17,900 ("the outstanding sum") by way of arrears of maintenance.

That within 24 hours of the making of these Orders, the husband do all such acts and things and sign all such documents as may be required to direct and authorise L Asset Mgt Limited and all other related L entities to deduct from the salary due to the husband the sum of $1,700 per week, to be deposited into the wife's ANZ Bank account BSB … account number … ("the wife's bank account") being the wife's spousal maintenance ("the salary authority").

That, in the event the husband at any time ceases to receive a salary from L Asset Mgt Limited or any related L entity, the husband shall forthwith do all such acts and things and sign all such documents as may be required to direct and authorise L Capital Partners Pty Ltd, L Principal Finance Limited and L Asset Mgt Limited to pay to the wife the wife's spousal maintenance in the sum of $1,700 per week by drawing same against the husband's loan account/s ("the loan account authority").

That in the event of the husband's failure to sign the salary authority or the loan account authority or other documents required by these Orders pursuant to these Orders, then pursuant to Section 106A of the Family Law Act 1975, the Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute the salary authority and the loan account authority in the husband's name.

That to meet the outstanding sum the husband forthwith:

(a) Cause to be delivered to the wife in excellent condition the porcelain dinner set ("the dinner set"); and

(b) Transfer to the wife the 2005 motor vehicle registration number … ("the car") and cause the car keys to be delivered to the wife and make the car available for collection by the wife from his business premises and co-operate with making the car available for collection by her;

(c) and the wife forthwith sell the dinner set and the car with the proceeds of sale to be deemed part property settlement to the husband and to be held on trust by the wife's solicitors for the husband and wife and applied as follows:

(i.) Firstly, to meet payment of the outstanding sum and any reasonably necessary expenses of sale;

(ii.) Secondly,…

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.

Keep reading for free

Create a free CaseChat account to read Nixon and Nixon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FamCA 919
Decision Date: 14 November 2011

CaseChat Overview and Summary

This matter came before Dessau J concerning an application by the wife against the husband. The dispute involved the husband's arrears of maintenance and the provision of spousal maintenance. The court also addressed the sale of certain assets to meet outstanding maintenance obligations and the husband's costs.

The court was required to determine the quantum of the outstanding maintenance arrears owed by the husband to the wife. Further, it needed to establish a mechanism for the regular payment of future spousal maintenance and to address the disposition of a dinner set and a motor vehicle to satisfy the arrears. The court also considered the husband's application for contravention and the costs of the proceedings.

The court ordered that the husband owed the wife $17,900 in maintenance arrears. To ensure future spousal maintenance payments of $1,700 per week, the court directed the husband to provide a salary authority for deductions from his salary, or alternatively, a loan account authority if his salary ceased. In the event of the husband's failure to comply, the Registrar of the Family Court was appointed to execute these authorities. The husband was also ordered to deliver a dinner set and transfer a motor vehicle to the wife, who was to sell these items. The proceeds were to be applied first to the outstanding sum and sale expenses, with any balance held on trust pending the final hearing. The court also ordered the husband to pay the wife's costs of the application, fixed at $4,695, with payment stayed for 30 days. The husband's contravention application was withdrawn by consent. The parties also reached agreements regarding the children's time with the father, with specific conditions attached to the recommencement of these arrangements.

Orders

Orders of the court

That the hearing date for this case being 19/3/12 shall be vacated and it is listed for a 5 day hearing from 10am on 26/3/12 before Justice Dessau.

That the husband owes to the wife the sum of $17,900 ("the outstanding sum") by way of arrears of maintenance.

That within 24 hours of the making of these Orders, the husband do all such acts and things and sign all such documents as may be required to direct and authorise L Asset Mgt Limited and all other related L entities to deduct from the salary due to the husband the sum of $1,700 per week, to be deposited into the wife's ANZ Bank account BSB … account number … ("the wife's bank account") being the wife's spousal maintenance ("the salary authority").

That, in the event the husband at any time ceases to receive a salary from L Asset Mgt Limited or any related L entity, the husband shall forthwith do all such acts and things and sign all such documents as may be required to direct and authorise L Capital Partners Pty Ltd, L Principal Finance Limited and L Asset Mgt Limited to pay to the wife the wife's spousal maintenance in the sum of $1,700 per week by drawing same against the husband's loan account/s ("the loan account authority").

That in the event of the husband's failure to sign the salary authority or the loan account authority or other documents required by these Orders pursuant to these Orders, then pursuant to Section 106A of the Family Law Act 1975, the Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute the salary authority and the loan account authority in the husband's name.

That to meet the outstanding sum the husband forthwith:

(a) Cause to be delivered to the wife in excellent condition the porcelain dinner set ("the dinner set"); and

(b) Transfer to the wife the 2005 motor vehicle registration number … ("the car") and cause the car keys to be delivered to the wife and make the car available for collection by the wife from his business premises and co-operate with making the car available for collection by her;

(c) and the wife forthwith sell the dinner set and the car with the proceeds of sale to be deemed part property settlement to the husband and to be held on trust by the wife's solicitors for the husband and wife and applied as follows:

(i.) Firstly, to meet payment of the outstanding sum and any reasonably necessary expenses of sale;

(ii.) Secondly, the balance then remaining to be held on trust for the husband and wife pending final hearing.

That in the event that any part of the $1,700 per week obligation of the husband pursuant to paragraph 3 of the 10 June 2011 Orders is not paid, then the solicitors be and are authorised to pay to the wife from the funds held in trust so much of any $1,700 per week obligation as is unpaid 48 hours after such sum is due.

That the wife provide to the husband within 7 days of sale copies of all relevant sale and money receipt documents and otherwise account to the husband for the sales of the car and the dinner set and the solicitors account to the husband for any payments to the wife from the funds held on trust.

That the husband pay the wife's costs of and incidental to this application fixed in the sum of $4,695, payment to be stayed for 30 days.

BY CONSENT

10.

That the husband's application for contravention filed 11 November 2011 be withdrawn with a right of re-instatement.

AND THE COURT NOTES

A. The husband and wife agree to recommence the children's time with the father commencing on the weekend of Friday 18 November 2011, with pick up from school (and each alternate weekend thereafter).

B. The husband and wife agree the children's time will recommence provided that on the weekend of 18 November 2011 the father ensure that his mother, or Ms BB or an employed nanny is present for at least the following times:

(a) On Friday 18 November 2011 from after school until 8:30pm;

(b) On Saturday 19 November 2011 from 10:00am until 8:30pm;

and that prior to 4:00pm on Thursday 17 November 2011 the husband advise the wife's solicitor in writing as to the details including who will be present at what time including who the nanny will be.

C. The husband and wife agree that the children's Wednesday time will commence on Wednesday 23 November 2011 unless the weekend of 18 November 2011 does not proceed satisfactorily.

D. The husband has provided a signed transfer of registration of the car.

RECORDED : NOT TRANSCRIBED

The solicitor for the applicant wife will prepare the orders within seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.