Ramon & Ramon

[2009] FamCA 523

FAMILY COURT OF AUSTRALIA

RAMON & RAMON [2009] FamCA 523

FAMILY LAW – PROPERTY SETTLEMENT – IMPLEMENTATION OF ORDERS – CALCULATION OF INTEREST – Wife’s contention regarding period during which interest on superannuation interests transferable to the wife without merit – Husband had signed required documentation and wife’s attorneys were put on notice – No complaints in subsequent correspondence made by wife’s attorneys – Court bound by orders of Full Court relating to accrual of interest.

FAMILY LAW – PROPERTY – TRANSFER OF MONIES – Wife obliged to transfer bank accounts to husband, having received requisite sum from him, regardless of orders regarding superannuation

FAMILY LAW – ORDERS – VARYING OF ORDERS – Husband’s assertion that Full Court varied timing of order requiring him to transfer monies to wife not established – Not just for husband to benefit from retaining monies for extended period

FAMILY LAW – COSTS – Husband awarded two thirds of party and party costs – husband successful on two of three contentious issues – wife on one

Family Law Act 1975 (Cth)
Mullane Mullane (1983) 158 CLR 436

APPLICANT: Mr Ramon

RESPONDENT: Ms Ramon

FILE NUMBER: PAC 2186 of 2009

DATE DELIVERED: 3 June 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: COLEMAN J

HEARING DATE: 3 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Aldridge SC

SOLICITOR FOR THE APPLICANT: John R Quinn & Co

COUNSEL FOR THE RESPONDENT: MR ROGERS

SOLICITOR FOR THE RESPONDENT: Ross Selvaggio & Associates

Orders

1. That the husband cause to be paid to the wife approximately $2426 received by him from the Australian Scholarship Association Fund referred to in Order 20 of the orders dated 12 May 2008 plus such further payment received by the husband from such fund subsequent to 12 May 2008 as agreed or established by admissible evidence from the Fund administrators.

2. That the wife pay two thirds of the husband’s costs of the Application filed 12 May 2009 as agreed or assessed on a party and party basis.

3. That the Application filed 12 May 2009 and response filed 22 May 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2186 of 2009

MR RAMON

Applicant

And

MS RAMON

Respondent

REASONS FOR JUDGMENT

1. On 7 April this year, at a time when there was pending hearing and determination by the Full Court an appeal and a cross appeal, the parties entered into an agreement which varied orders for the settlement of property made on 12 May 2008. Unfortunately, subsequent to what might have been thought to have been a monumental break through and period of lasting peace, implementation of those orders proved difficult. The trail of the correspondence between the attorneys for the parties reveals the nature of the difficulties in part, although not fully. When I say not fully I mean not fully in relation to an argument about the entitlement of the wife with respect to the parties’ superannuation interests. The correspondence I perceive does not reveal what has been made clear by Counsel for the wife this morning to be the real issue in that regard, namely the date to which interest on the wife’s entitlement pursuant to Order 18 should be calculated but the matters of dispute otherwise emerge fairly clearly from correspondence or the matters which resulted in us all being here today emerged from correspondence.

2. The applications to some extent reveal the matters of controversy. Certainly so far as the husband's application which commenced this round on 12 May 2009 is concerned that is the case. The response to that application filed in Court on 22 May certainly identifies two of the issues between the parties, but as senior Counsel for the husband submitted, does not expressly reveal the third matter of controversy. That matter does however find expression in correspondence so that, as senior Counsel fairly conceded, it cannot be suggested that it was raised completely “out of the blue” this morning. I apprehend that in broad terms there have thus been three matters in dispute between the parties.

3. The first dispute relates to the superannuation interests transferable to the wife pursuant to Order 18 of the orders of 12 May 2008. That order was varied by the Full Court on 7 April 2009 by inserting a number of figures and other matters, the most significant of which was that the wife was to receive her interest of $348 658 together with interest from 1 July 2007 to date. To date was obviously a reference to the date of the Full Court's orders, 7 April 2009.

4. The position in relation to the superannuation interest is that as at 1 May 2009 P Accountants, the accountants referred to in the Full Court’s orders, had provided to the parties a calculation of the wife’s entitlement based on $348 658 with interest calculated pursuant to Order 18, giving rise in round figure to the sum of $392 000. Counsel for the wife has today fairly conceded that as a calculation that sum has never been controversial. Two submissions were agitated on behalf of the wife in relation to the figure.

5. The first was that an authority calling upon or facilitating the wife transferring the balance of her entitlement to superannuation funds to her signed by the husband have never been received. The letter of the husband’s attorneys of 6 May 2009 which is annexure H, page 2, second full paragraph says:-

   [The husband] has already given the appropriate authorities to the bank to pay this sum into your client's super fund.

6. Whilst perhaps in view of what has transpired since it might have been a safer course to have said in the letter “and here it is” and provide the authority, it is clear that the wife’s attorneys were put on notice at that time that the husband had signed the documents and by 1 May there was no doubt as to the figure. In reality, as Counsel for the wife’s submissions this morning confirm, the wife’s refusal to accept that figure with respect to her superannuation interest was not because she disputed the calculation but rather the period during which interest was to run.

7. As suggested to Counsel for the wife, as senior Counsel for the husband pointed out, the effect of the Full Court’s order varying Order 18 or supplementing Order 18 is that this Court cannot go behind what the Full Court has ordered. To do so would be to alter the substance of an order and the authorities commencing with Mullane Mullane (1983) 158 CLR 436 in the High Court in 1983 and consistently thereafter confirm that this cannot happen, save pursuant to section 79A which sensibly nobody suggests could possibly be successfully enliven in relation to this topic.

8. Also significant is the absence of complaint in subsequent correspondence by the attorneys for the wife in relation to this topic. Quite apart from anything to which reference has already been made with respect to the superannuation interest dispute, to the extent that there was or could be one, by 1 May no issue could arise. The husband has been entirely successful with respect to this issue.

9. The second issue relates to the transfer to the husband of bank accounts pursuant to Order 17 of the orders of 8 May as varied by order of the Full Court on 7 April this year. Order 17 provided that:-

   The wife transfer to the husband her interest in any joint bank accounts and/or the bank accounts of the companies forthwith upon compliance with Order 5.

10. Order 5, it is common ground, which required the husband pay the sum of $850 000 to the wife, was undoubtedly complied with within the time frame therein provided. At that time the wife, whatever her views in relation to the superannuation interest and one other matter to which reference will be made, might have been, was obliged to transfer to the husband the bank accounts referred to in the Order 17. That did not happen, and with respect to the wife and/or her legal advisers the bases upon which she declined to do so as they emerge from correspondence directed to that topic by the wife's attorneys was misconceived. Objectively, the Full Court's orders make clear beyond doubt that once the $850 000 was payable the bank accounts of the companies became the property of the husband. On that issue the husband has been wholly successful.

11. An issue which in money terms is perhaps minor but in terms of the dispute between the parties is by no means so, related to Order 20 of the orders made in May 2008, not varied by the Full Court on 7 April 2009, not ever stayed and said to have been “otherwise confirmed” by the Full Court on 7 April 2009. As the record would reveal senior Counsel for the husband presented an ingenious argument in relation to this topic by reference to the terms of the Full Court’s order and submitted that the orders of 12 May 2008 were effectively remade by the Full Court as Order 12 confirmed. Order 12 said:-

    That other than as provided the orders made 12 May 2008 be and are confirmed.

12. As suggested to senior Counsel for the husband during the course of discussion this morning, the need for the orders that were not otherwise varied to be confirmed, they having not been stayed and being dispositive in their terms, is difficult to follow. Order 2 provided:-

    That the orders made 12 May 2008 be varied as hereinafter provided

    and specified the way in which those orders were varied.

13. Whilst it is, with respect, a very neat argument on behalf of the husband, there is an unfairness in the husband retaining the benefit of increments to the payments made by the fund referred to in paragraph 20 subsequent to the Order in circumstances where it was conceded that the husband has not paid any premiums.

14. Primarily, on the basis that to accede to the submission of senior Counsel for the husband in relation to this topic would be unfair in the circumstances. Although the wife will not have received her superannuation interest pursuant to Order 18 until almost two months after the orders of the Full Court contemplated, in terms of calculation of interest, she does not receive that interest, to adopt a different approach to the payments out of the ASAF fund would seem unfair and unjust to the wife. On that basis, crude though it no doubt is, the Court has made the order in relation to the further payments from the ASAF fund, whether that be $2400 in round figures or $4800. On that issue the wife has been successful.

15. Broadly speaking, on the basis which has been roughly outlined it can be said that of the three controversial issues which brought the parties to Court, the husband has been successful on two issues and the wife on one.

16. In terms of section 117(2)(a) of the Act the financial resources of neither party would either enhance the entitlement to a costs order or provide a basis for declining to award costs is costs were otherwise appropriate. Each party is a person of means. The factors which leads the Court to form the requisite opinion, that being that the circumstances justify a costs order, are those to which reference has been made and are as indicated. The balance of success falls on the husband’s side. In the circumstances, particularly as with respect to the endeavours of Counsel for the wife who has put everything on her behalf that could possibly be put on these issues, the superannuation and bank account issues, with respect and with hindsight, were always going to be resolved in the husband’s favour. Notwithstanding the ingenuity of the argument presented in relation to the ASAF fund, the Court has ruled in favour of the wife on that topic.

17. Although it is probably a rough, and certainly not a scientific basis for an order, the Court considers that the circumstances justify a costs award in favour of the husband as to two thirds of his party and party costs of and incidental to the application filed 12 May 2009 as agreed or assessed. That will be the order.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman  

Associate: 

Date:  22 June 2009