Nixon and Nixon (No 3) - [2010] FamCA 1284

FAMILY COURT OF AUSTRALIA

NIXON & NIXON (NO. 3)

[2010] FamCA 1284

FAMILY LAW – INTERIM ORDERS – enforcement

APPLICANT:

Mr Nixon

FIRST RESPONDENT:	Ms Nixon
SECOND RESPONDENT:	L Asset Management Limited

INTERVENOR:

L Capital Pty Ltd

FILE NUMBER:

MLC

2061

2009

DATE DELIVERED:

1 October 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Senior Registrar FitzGibbon

HEARING DATE:

26 August 2010

REPRESENTATION AT THE HEARING ON 26 AUGUST 2010

COUNSEL FOR THE APPLICANT:

Mr Mawson SC

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE FIRST RESPONDENT:

Mr O’Shannessy

SOLICITOR FOR THE FIRST

RESPONDENT:

Kliger Partners

COUNSEL FOR THE SECOND

RESPONDENT:

Mr O’Shannessy

SOLICITOR FOR THE SECOND

RESPONDENT:

Kliger Partners

Ms Coleman

Lander & Rogers

COUNSEL FOR INTERVENOR:

Ms Coleman

SOLICITOR FOR THE INTERVENOR:

Lander & Rogers

Orders

IT IS ORDERED

That the husband pay or cause to be paid to the wife as soon as practicable but by no later than close of business 8 October 2010 the sum of $60,573.40 (“the payment”) plus any accrued penalty interest and the costs of collection of monies, if any, claimed by CH Agency or any other debt recovery agency or firm with respect of monies owed arising from the expenses or sums ordered to be paid by the husband pursuant to any of paragraphs 8 and 9 of the orders made 27 March 2009; paragraphs 21 and 22 of the orders made 10 June 2009 and paragraph 8 of the orders made 24 August 2009 (“the particular orders”) such funds to be deposited into the ANZ Bank Account BSB … Account Number …668 in the name of the wife.
That upon the payment in paragraph 1 being received by the wife she be responsible for paying out any and all outstanding debts pursuant to the particular orders as set out in paragraph 1.
That subject to the preceding orders paragraphs 8 and 9 of the orders made 27 March 2009 and paragraphs 21 and 22 of the orders made 10 June 2009 be discharged.
That until further order the husband pay or cause to be paid to the wife for her interim maintenance the sum of $3000 per week calculated as and from 21 September 2010 and weekly thereafter such payments to be deposited on the same day each week to the ANZ Bank Account BSB … Account Number …668 in the name of the wife.
That as soon as practicable and by no later than close of business on 8 October 2010 the husband do all such acts and things and sign all such documents as may be required to direct and authorise K Capital Limited, L Asset Management Limited and L Principal Limited and all other L Group entities and G Group Entities to provide such documents and information required by Mr DF of XX Firm, being the appointed single expert pursuant to paragraph 2 of the orders made 20 April 2010 and as requested in the letter dated 22 June 2010 from Mr DF…

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.

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Details

Case: [2010] FamCA 1284
Decision Date

CaseChat Overview and Summary

This case concerned an application before Senior Registrar FitzGibbon of the Family Court of Australia, brought by Mr Nixon (the applicant husband) and Ms Nixon (the first respondent wife), with L Capital Pty Ltd as an intervenor. The dispute involved the enforcement of existing court orders, the determination of interim maintenance payments, and the production of documents for a single expert valuation of certain companies. Ancillary issues included the payment of private school fees, limitations on the husband's access to funds, and reimbursement of monies spent by the wife.

The court was required to determine three primary legal issues. Firstly, the cumulative amount owed by the husband to the wife pursuant to various previous orders, with a significant discrepancy between the wife's claim of $60,573.40 and the husband's figure of $20,324.35. Secondly, the appropriate amount for interim maintenance to be paid to the wife after the expiration of existing orders, with the wife seeking $3,560 per week and the husband offering $2,000 per week. Thirdly, the court needed to address the production and exchange of further documentation required by the jointly appointed single expert for the valuation of the L and G Group of companies.

The Senior Registrar made several orders by consent and otherwise. These included an order for the husband to pay $60,573.40 to the wife by 8 October 2010, plus any accrued penalty interest and collection costs, with the wife then responsible for discharging the specified debts. The previous orders relating to these debts were to be discharged. The husband was also ordered to pay interim maintenance of $3,000 per week to the wife, commencing from 21 September 2010. Furthermore, the husband was directed to take all necessary steps to authorise certain entities to provide documents and information to the single expert by 8 October 2010, with provisions for the Registrar to execute such documents in the husband's name if he failed to do so. A consent order was made requiring the wife to retract a specific document sent to the single expert. The husband was also ordered to pay $6,250 for a monthly payment due in June 2010 and to reimburse an additional $6,220 from the proceeds of sale of a property, with the characterisation and ultimate responsibility for this latter payment reserved to the Trial Judge. The applications filed by both parties were dismissed, and future directions for final orders were to be managed by Registrar Field.

Orders