NIXON & NIXON

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.