NIXON & NIXON - [2012] FamCA 956

FAMILY COURT OF AUSTRALIA

NIXON & NIXON

[2012] FamCA 956

FAMILY LAW – ORDERS - Enforcement of orders

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Yunghanns & Yunghanns (2000) FLC 93-029)
Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225

APPLICANT:

Ms Nixon

RESPONDENT:

Mr Nixon

FILE NUMBER:

MLC

2061

2009

DATE DELIVERED:

19 October 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

30 & 31 August 2012, 1 & 2 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Vadarlis & Associates

Orders

That the husband pay to the wife the sum of:
(a)$1,500,000 being the amount due to the wife on 27 February 2012 pursuant to paragraph 3 of the 13 January 2012 orders;
(b)Pursuant to s 117B of the Family Law Act 1975 and Rule 17.03 of the Family Law Rules 2004:
(i) Interest from 27 February 2012 to 30 June 2012 in the sum of $52,654.11 (the prescribed rate of interest being 6% above the 7 December 2011 cash rate of 4.25% pursuant to rule 17.03(a));
(ii) Interest from 1 July to 4 September 2012 in the sum of $25,767.12 (the prescribed rate of interest being 6% above the 5 June 2012 cash rate of 3.5% pursuant to rule 17.03(b)).
That the husband pay to the wife pursuant to paragraph 7(a) of the 13 January 2012 orders 22 weeks of spousal maintenance at $1,700 per week from 3 April 2012 to 3 September 2012 being $37,400.
That the husband pay to the wife, pursuant to paragraph 2 of the Binding Child Support Agreement executed 13 January 2012 arrears of periodic child support to 3 September 2012 in the sum of $22,118.90.
That the husband reimburse and pay to the wife, pursuant to paragraph 4(a) of the Binding Child Support agreement executed 13 January 2012:
(a)The sum of $12,573.14 being F School fees paid by the wife on 24 April 2012;
(b)The sum of $15,000 being F School fees paid by Mr and Ms M on behalf of the wife on 19 July 2012.
That the husband reimburse and pay to the wife, pursuant to paragraph 4(c) of the Binding Child Support Agreement executed 13 January 2012:
(a)$1,040 being S’s viola lessons:
(b)Fees owed to the Sports Academy of $1,645.00.
That the husband pay to Kliger Partners, pursuant to Order 10 of the 3 April 2012 Orders:
(a)The sum of $15,200.00;
(b)Pursuant to s 117B of the Family Law Act1975 and Rule 17.03 of the Family Law Rules 2004:
(i) Interest from 10 April 2012 to 30 June 2012 in the sum of $350.02 (the prescribed rate of interest being 6% above the 7 December 2011 cash rate of 4.25% pursuant to rule 17.03(a);
(ii) Interest from 1 July to 4 September 2012 in the sum of $261.11, (the prescribed rate of interest being 6% above the 5 June 2012 cash rate of 3.5% pursuant to rule 17.03(b)).
That C…

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: [2012] FamCA 956
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms Nixon (the applicant wife) against Mr Nixon (the respondent husband) in the Family Court of Australia concerning the enforcement of various financial orders. The dispute arose from the husband's alleged non-compliance with consent orders made on 13 January 2012, a child support agreement executed concurrently, and further enforcement orders made on 3 April 2012. The wife sought to recover a substantial sum of unpaid amounts, totalling $1,753,191, which included a lump sum payment, spousal maintenance arrears, child support arrears, school fees, and other expenses.

The primary legal issues before the court were whether the husband had genuinely been unable to meet his payment obligations under the existing orders and, if not, what enforcement measures were appropriate. The wife sought orders for the husband to pay the outstanding amounts, for her solicitor to be appointed sequestrator of a property recently purchased by the husband, and for that property to be sold to satisfy the debts. She also sought an enforcement warrant to seize and sell various chattels. The husband contended that his inability to pay stemmed from a shortfall in a loan he expected to receive and the necessity of paying trade creditors and settling the purchase of his new home. He argued that the wife had already received assets sufficient to cover the outstanding amounts and that selling his home would render him and his pregnant partner homeless, potentially leading to secured creditors foreclosing and leaving the wife with nothing.

Dessau J determined that the husband had not demonstrated a genuine inability to comply with the orders, noting a history of non-compliance. The court found that the husband's explanation for his financial difficulties was not sufficiently substantiated and that he had failed to provide adequate evidence of his claimed inability to pay. The court applied principles of enforcement under the *Family Law Act 1975* (Cth) and the *Family Law Rules 2004* (Cth), including the power to appoint a sequestrator and issue enforcement warrants. The court also considered the husband's arguments regarding the potential impact on his new partner and secured creditors, but ultimately prioritised the enforcement of the existing orders.

The court ordered the husband to pay the wife the sum of $1,500,000, plus accrued interest, along with arrears of spousal maintenance and child support. The husband was also ordered to reimburse the wife for school fees and other expenses. Crucially, the court ordered the issuance of an enforcement warrant authorising the seizure and sale of the husband's property and specified chattels to satisfy the outstanding debts, with proceeds to be applied first to enforcement costs, then to a secured debt, followed by the wife's claims, and any remaining balance to be paid to Aitken Partners Solicitors Trust Account for the benefit of the wife. The husband was also ordered to vacate the property and was restrained from encumbering it or the specified chattels. The court also made orders regarding the application of rental income from another property and awarded costs to the wife on an indemnity basis for most of the proceedings.

Orders