Slattery & Slattery

[2007] FamCA 709

FAMILY COURT OF AUSTRALIA

SLATTERY & SLATTERY (NO. 2) [2007] FamCA 709

FAMILY LAW - CHILD SUPPORT - Enforcement application - Lump sum child maintenance - Service

APPLICANT: MRS SLATTERY

RESPONDENT: MR SLATTERY

FILE NUMBER: SYF 10204 of 1991

DATE DELIVERED: 17 JULY 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: JUSTICE COHEN

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MR PAUL of PAUL AND PAUL LAWYERS

NO APPEARANCE BY OR FOR

THE RESPONDENT

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 10204  of 1991

MRS SLATTERY

Applicant

And

MR SLATTERY

Respondent

REASONS FOR JUDGEMENT

1. The parties are originally from England but were living in Australia when on 30 March, 1993 they executed an agreement for the husband to pay the wife nominated weekly and other periodic amounts to meet his share of her costs of caring for the parties’ children. The agreement is clearly intended to be a child support agreement pursuant to s84 of the Child Support (Assessment) Act (Assessment Act). It was registered in this Court on 28 July, 1993. This agreement was varied by an agreement made on 8 July, 1994. The latter agreement, too, is clearly intended to be made under s84 of the Assessment Act. On 2 September, 1994 consent orders were made by the Court which were part of a settlement of enforcement proceedings for unpaid child support. The orders, inter alia, varied the original agreement in accordance with the agreement of 8 July, 1994 pursuant to s98 of the Assessment Act.

2. On 16 December, 1999, the wife filed another enforcement summons because she alleged the husband had not fulfilled his obligations under the agreement, as amended. In it she sought $48,532.71 she claimed the husband was liable to pay her for private school expenses and the health insurance premiums she had paid. She alleged he was liable to pay her these in respect of the parties’ children pursuant to the agreement.

3. A child support agreement can be enforced as if it was an order of this Court made under Division 4 Part 7 of the Assessment Act, ie., a departure order (s95(2)). By s141(3) the Family Law Rules which applied in 1999 included the capacity to enforce an order for payment of a specific sum in respect of a debt due under a child support agreement and interest (O.33 r.2). However, the enforcement summons does not provide any indication that it is the Assessment Act which is essentially relied on in it. This may not be a fatal flaw because the enforcement summons is issued under the Family Law Act. The agreement is called a “maintenance agreement,” indicating that the wife might be relying on the agreement being one to which ss86 and 88 of the Family Law Act apply.

4. I have no doubt that the enforcement summons was served on the husband because, on 17 February 2000, the husband filed an amended application for final orders seeking to discharge the agreement of 8 July 1994 and the relevant orders made on 2 September 1994.

5. The wife’s enforcement summons was listed before Registrar Messner on 17 March 2000. Registrar Messner dismissed the wife’s summons. The wife then, on 23 March 2000, filed an Application for Review of the registrar’s orders and on that day also filed an amended response to an application the husband filed on 17 February 2000. The husband’s application was to discharge the agreement as amended. The wife in her amended response asked for orders which were stated to be pursuant to s66G of the Family Law Act; that is, for child maintenance which is not governed by any agreement. The relevant specific orders contained in the wife’s Amended Response of the 23 March 2000 are:

   (4) That pursuant to Section 66G of the Act the husband do pay to the wife all fees properly due and payable to the [P School] in respect of the attendance at the school of [C] born [in] October 1986 and [E] born [in]April 1989 in the period down to the completion of their attendance at the school.

   (5) That pursuant to Section 66G of the Act the husband do pay to the wife all fees properly due and payable to [K School] in respect of the attendance at the school of the children [C] born [in] October 1986 and [E] born [in] April 1989 being all fees which became due and payable as from 1 August 1999 until the present date and continuing until the completion of the education of the children at the school.

   (6) The husband do pay the wife arrears payable under the proceeding Order within 28 days of the date of these Orders.

   (7) That the husband pay the continuing fees of the children in respect of their attendance at the school to the wife within 7 days of the receipt from time to time of a copy of each statement of account from the school in respect of the attendance at the school of the said children.

   (8) That pursuant to Section 66G the husband do pay to the wife [for] the maintenance of the children:-

   [L] born [in]March 1983

   [C] born [in] October 1986

   [E] born [in] April 1989

   The sum of $150.00 per week per child with effect from 1 April 1999.

6. On 1 May 2000 O’Ryan J. consolidated all extant applications including the Application for Review and noted that the parties had agreed to pursue the husband’s application for final orders setting aside the agreement then proceed with the hearing of any remaining issues on the enforcement summons.

7. On 23 August 2002 the matter was again before O’Ryan J.. The husband failed to appear and his Honour dismissed his application of 17 February 2000. The wife’s enforcement summons has not yet been dealt with nor has the wife’s application contained in her amended response of 23 March 2000.

8. As I have said, the enforcement summons filed in December 1999 describes the 30 March 1993 agreement as varied as a maintenance agreement. It is really a child support agreement made under the Assessment Act. The application under s66G, and presumably, Part VII, Division 7 of the Family Law Act seems to have been made as an alternative, if, as Registrar Messner found, the agreement has been terminated because the husband moved his residence to the United Kingdom. Thus, the wife relies on the child support agreement and, in the alternative, her right to child maintenance if the agreement is not enforceable. She relies, in her amended response, on the terms of the written agreement but not the written agreement itself.

9. She says nothing specific about reliance on the written agreement as an agreement made pursuant to s86 of the Family Law Act in the amended response. Yet, in the original enforcement summons, she calls the Child Support Agreement a “maintenance agreement.” That is a term used in both the Family Law Act and the Assessment Act. S84(7)(b) of the Assessment Act permits one agreement to be both a child support agreement under the Assessment Act and a maintenance agreement as defined in the Family Law Act and made pursuant to s86 of that Act. A maintenance agreement made under s86 of the Family Law Act can provide for child maintenance (see the definitions of “maintenance agreement” and of “financial agreement” in s4 Family Law Act). A child maintenance agreement is enforceable as an order of the Court by reliance on s88 of the Family Law Act, provided it is registered. The amended agreement was registered in the Family Court when the variation orders of 2 September 1994 were made. The Assessment Act provides in s98 that a child support agreement can be varied by Court order. By s95 a child support agreement which has been accepted by the Child Support Registrar (Registrar) also has the same effect as an order of a court in which it is registered. I am satisfied the intended agreement has been accepted by the Registrar because there is evidence that the Registrar has made an assessment in accordance with and has attempted to enforce the agreement.    

10. It does seem clear on the findings of Campbell J. in proceedings between the parties in the Equity Division of the NSW Supreme Court that the husband has, at times since executing the agreement in July 1994, resided outside Australia and was not liable to file an Australian Income Tax Return (see s10 of the Assessment Act). On the first occasion the husband became resident outside Australia any child support agreement would cease to apply because, by s12(3) of the Assessment Act, it would terminate once the husband had ceased to reside in Australia. The parties are bound by the relevant findings of fact in the judgement of Campbell J. which was published on 27 March, 2002 in proceedings under the Property (Relationships) Act1984. This judgement was not the subject of any appeal.

11. The husband had been employed to work in Australia by E Company between 1988 and October 1995. He continued to live in Australia until early January 1996 when he went to the United Kingdom. While there, he obtained a 3 months visitor’s visa for Australia to which he returned on 22 January 1996. When he applied for this visa, although it was granted, the husband was informed by an Australian immigration officer that he would not be granted another visa for Australia on the expiry of that which he had obtained unless he had “re-established” himself in the United Kingdom. On the expiration of this visa, the husband, on 22 April 1996, returned to the United Kingdom.

12. On 4 October 1996 he obtained a visitor’s visa for Australia which was valid until 19 September 2000. He had obtained it while he was on a holiday in Hawaii. He nevertheless returned from the holiday to the United Kingdom on October 16 and did not go to Australia. He then purchased a home in England for a woman with whom he had a relationship and his son, W, from that relationship but, by December 1996, was back in Australia. He remained in Australia, except when on holiday, until he returned to the United Kingdom in November 1997. He had been attempting to get a job in the United Kingdom since about 15 September 1997. He had previously concentrated on Australia as the source of his next employment after he had finished with E Company. “Residence” for the purpose of child support is residence “for the purpose of the Income Tax Assessment Act” (s10 Assessment Act). “Residence” is similar to and includes domicile under s6 of the Income Tax Assessment Act. Domicile is acquired when the person intends to live permanently in a place and commences to live there. It is not lost until the person decides to live elsewhere permanently and commences to live there.

13. The husband moved into a property at N, a suburb of Sydney, in November 1995. He moved his clothes and some other possessions such as beds and televisions there at the time. He left these there until November 1997. When he left Australia at this time he took most of his clothes with him. This was in contrast to his actions when he was away before this.

14. It seems clear that he was resident in Australia while he was employed here. When he became unemployed, he lived in both Australia and the United Kingdom. It seems that in his mind he was wedded to Australia but was not permitted to live here. He needed to obtain Australian employment to enable his continued residence in Australia and endeavoured to obtain it. When he failed, he returned to find work in the United Kingdom. He has always been a United Kingdom citizen.

15. In November, in a discussion between the wife, the husband and a 3^rd person, the wife said she would go to England “Once […] (the husband) has established himself over there…” The husband relied on this evidence which he tendered from the 3^rd person in the Supreme Court proceedings.

16. In all the circumstances, I think it is more probable than not that the terminating event for the agreement as a child support agreement took place in about mid November 1997 because the husband then ceased to be resident in Australia and decided to live permanently in the United Kingdom. I am of the view that, as the agreement was in force until then, this Court can enforce the husband’s obligation to the wife under the Assessment Act which arose before mid November 1997. Until then, he was resident in Australia at all relevant times. Thus, the enforcement summons which claims arrears which are said to be $48, 532.71 up to the date of its filing in 1999 could be relied on by the wife for arrears of child support under it until mid November 1997 if it is sufficient to have notified the husband that it is a claim under the Assessment Act. I am satisfied that it is so sufficient.

17. The reason Registrar Mesner dismissed it is that it no longer applied because the husband’s residency in Australia had ceased. By the time the matter first came before me in 2006 it was clear that the husband was claiming that the agreement had been terminated because he had ceased to be a resident and could not be relied on to claim he had a child support liability. This implies the he regarded the summons as one being used to enforce a child support liability.

18. The wife still relies on her 23 March 2000 response to the husband’s application of 16 February 2000 to claim child maintenance. S66G of the Family Law Act provides that, if it otherwise has the power to make a child maintenance order, the Court can make such order for child maintenance as it thinks proper. This means that, in the absence of any child maintenance or child support agreement, the Court is able to assess child maintenance obligations. If there has been an agreement for such maintenance which is not enforceable during any period, the Court may take it and its terms into account for that period but is not bound by it. S66J of the Act prescribes matters which the Court must consider in making a child maintenance order. There is no mention of a requirement to take into account the provisions of any maintenance agreement, but it does not prohibit the consideration of matters other than those which the Court must consider in making a child maintenance order.

19. If for the orders the wife seeks in the enforcement summons she is relying on a claim that the agreement made 30 March 1993 and variation of 28 July 1994 should be enforced as a child maintenance agreement, s86(3B) Family Law Act makes it clear that child maintenance, as distinct from child support, can be the subject of a binding agreement in limited circumstances. To be binding the agreement had to be registered (s86(3B)(c)). Because of s86(1A), no agreement could be registered after 27 December 2000. Thus, although there is no requirement for a s86 agreement to be registered at any particular time, it must have been registered before 27 December 2000 to be enforceable in relation to its child maintenance content. The requirements for registration were prescribed by the Rules of Court which were superseded by the current rules. O.26 r.1 applied.

20. The application for review of 23 March 2000 asks that application that “strict compliance with the provision of Order 26 Rule 1 be dispensed with in so far as registration of the agreement made 30 March 1993 as varied 28 July 1994 between the parties is concerned.”

21. O.26 r. 1, as is relevant, provides that a person may register a maintenance agreement in the Court by filing the original and two copies of the agreement. The two copies must be certified to be true copies. The affidavit of Mr P of 15 December 1999 proves to my satisfaction that the 30 March 1993 agreement was registered by being filed in the Court. Mr P’s affidavit annexes a copy of the 8 July, 1994 amending agreement, Annexure “B”. Although there is a typing error or slip involved, I am satisfied that in the body of his affidavit

    
    

    Mr P asserts, when referring to Annexure B, that it is a true copy of the original agreement of 8 July 1994. In addition, orders were made on 2 September 1994 which varied the 30 March 1993 agreement in accordance with the 8 July 1994 agreement. The latter was filed in Court so the order could be made on 2 September 1994 as part of minutes of proposed consent orders. I have power to excuse strict compliance with the rules. Here there was a slight departure in that the original 2 copies of the 8 July agreement were not filed, just a true copy. The file makes it perfectly clear that the husband has always been fully cognisant of the terms of this agreement.

22. I can discern no reason why I should not excuse the wife from the requirement of strict adherence to the rules for valid registration of 8 July 1994 agreement in this Court and regard the affidavit of Mr P as having effected registration of the agreement. The husband, after all, has assumed it was duly registered when he sought to discharge it by his application filed on 17 February 2000. As the agreement was, therefore, registered when a copy was filed on 16 December 1999, it, in combination with that of 30 March 1993, will be enforceable if it can be regarded as a maintenance agreement within the meaning of that term in s86 Family Law Act. S86 provides that if a maintenance agreement is registered it is to be enforced as if it is an order of the Court.

23. The original agreement of 30 March 1993 is clearly expressed to be a child support agreement. It is stated in recital “G” that “This agreement is intended by the parties to constitute a child support agreement pursuant to s84 of the Child Support (Assessment) Act 1989.” The amendment of 8 July is clearly intended to constitute a child support agreement. One must decide in such circumstances whether the varied agreement can also constitute a maintenance agreement within the meaning of that term as dealt with under s86 of the Family Law Act.

24. The legislature’s intent is made clear from s84(7)(b) of the Assessment Act. It permits an agreement to be both a child support agreement and s86 Family Law Act maintenance agreement which provides for child maintenance. S86(3B) of the Family Law Act provides that the provisions for child maintenance in a registered maintenance agreement have no effect and are unenforceable for any period when an application could properly be made under the Assessment Act for child support. It appears to me that the intention of the child support and child maintenance legislation is that a child maintenance agreement is not discharged once an application under the child support legislation could be made although it is not enforceable for any period when a child support application could be made. It is likely that the legislation was intended to make all the provisions of a maintenance agreement enforceable at all times within the ambit of the agreement when a child support assessment cannot be made and vice versa.

25. One must then decide if the agreement relied on by the wife is a maintenance agreement as well as a child support agreement. The very essence of the concept of agreement is a discernable and clear intention of the parties to agree to specific terms. The nature of an agreement as a child maintenance agreement in the context of the Family Law Act; that is, an agreement to maintain children when there is no child support obligation in relation to those children, is one of the matters which the agreement itself or admissible evidence about the circumstances in which it was made which imports such an unstated term into the agreement must disclose. Neither the agreement nor the evidence in this instance discloses any intent by the husband or the wife to make this agreement both a child support agreement and a child maintenance agreement. I am not satisfied that the agreement which the parties made and is constituted by the combined effect of the agreements of 30 March 1993, 8 July 1994 and the order of 2 September 1994 is a maintenance agreement for the maintenance of the children made pursuant to s86 of the Family Law Act. Accordingly, I do not accept that the enforcement summons of December 1999 can be used to enforce the agreement made in 1993 and varied in 1994 on any basis than reliance on the Assessment Act. Although the agreement is called a “maintenance agreement” in the enforcement summons, the husband has always understood it as an application to enforce a child support agreement. No injustice is done by recognising it as such.

1. Thus, the only orders the Court can make to enforce the written agreement as varied relate to the period of the wife’s claim up to mid November 1997. In my opinion, the wife’s only right for the period after that date is to child maintenance based on s66G of the Family Law Act.

2. By 66E of the Family Law Act the Court cannot make any order for child maintenance in a period when the applicant had the right to an administrative assessment of child support, whether or not there has been any such assessment in that period. The wife’s claim for child maintenance is for periods after 1 April 1999. It is for:

   a)school fees paid by the wife for the parties’ sons C, born in October 1986, and E, born in April 1989, until these children have finished school; and,

   b)$150.00 per week in all for these children and the parties’ daughter L, born in March 1983. 

3. The wife’s claim for enforcement of the child support agreement alleges the husband had become liable for $48,532.00:

   a)private school expenses for the four children of the parties; and,

   b)the maintenance of the insurance cover for the children’s hospital, medical, dental and orthodontic expenses under the health insurance benefits scheme provided by the husband’s employer, E Company, to its employees at the time the summons was filed until cessation of his employment with that entity; and,

   c)maintenance of identical insurance cover in the event that the husband had ceased to be employed by E Company.

4. There is evidence before the Court which is determinative of elements of the wife’s claims about the husband’s child support debt to her. The findings of Campbell J. in proceedings resulting from the defacto relationship which they had after they were divorced are binding on them. Paragraph 362 of his Honours judgement is to the effect that the wife did not, before Term 3 of 1999, pay any of the children’s school or related fees. His Honour also found that only from 8 May 2000 did the wife pay or become liable to pay the family’s medical etc benefits insurance premiums. Exhibit “E” in the proceedings before me discloses that the wife is not claiming the cost to her of such insurance cover before 1 August 2000. She did not become a member of a private benefit fund until 8 May 2000.

5. I do not regard it as being appropriate to enforce any alleged liability for child support which, despite non-payment by the husband, has not resulted in any cost to the wife. Here there is no prima facie evidence that the failure by the husband to insure the children’s hospital, medical, dental and orthodontic and like needs once he ceased to be an E Company employee in November 1995 until he ceased to be an Australian resident in mid November 1997 put the wife to any expense such insurance would have covered. The evidence does not demonstrate the husband failed to pay and the wife became liable for any of the children’s school expenses before that time.

6. Accordingly, the enforcement summons filed in 1999 ought to be dismissed because the wife cannot use it to enforce any child support or child maintenance liability arising from an agreement. I shall make an order which achieves that end. The wife is then left to attempt to rely on her right to child maintenance asserted in her Amended Response filed 23 March 2000.

7. I am satisfied on the unchallenged evidence that:

   a)The wife has paid about $200,000.00 for attendance at private schools by C and E. The claim for school fees for L is only $300.00 for year 12 in 2000. E finished school at the end of 2006 before he turned 18 years of age. C attended school until December 2004. His 18^th birthday was in October 2004. The last payment of school fees the wife made for him was in September, 2004. Presumably it was a payment made in advance for his attendance until the end of the 2004 school year. As such, it was proper for her to have made the payment despite the fact that it was for a period during part of which C was no longer a child. I am satisfied the payment was made to enable C to complete his education. I am therefore able, and I am otherwise satisfied that it is proper to do so, to make a child maintenance order which extends beyond C’s 18^th birthday and is expressed to do so. C and E commenced at K School in January, 1999. They were boarders in 1999 and 2000 but thereafter became day boys.

   b)Between 1 August 2000 and 1 April 2007 the wife paid medical benefits insurance premiums to MBF of $14,360.83 and that it was necessary for her to pay such sums to cover the needs of each of the children who remained under the age of 18 years. The cost of family cover is not altered by the number of children covered or the fact that she, too, was covered. The wife was entitled to include E in her family cover until 14 April 2007. 

8. Division 7 of the Family Law Act appears to me to amount to a code to be applied when child maintenance orders are sought. Its object is to “ensure (my underlining) that children receive a proper level of financial support from their parents” and that both parents contribute equitably to a reasonable and adequate level from their “income, earning capacity, property and financial resources” (s66B). A child’s entitlement to be maintained has priority over a parent’s commitments other than those needed to support himself or herself. In order to determine the level of a child maintenance order, the Court must consider the financial support needed for the child in question and the extent to which each party should contribute to it (s66H). In considering these matters, the Court must take into account the proper needs of the child in the light of its age, its parents’ expectations for its education, the actual education it is receiving and other relevant circumstances. The Court is entitled, if it sees fit, to have regard to published research data about the cost of maintaining children (s66J). A party’s contribution should be determined with the above matters, the financial circumstances of the respective parties and each party’s necessary commitments for his or her own support, as well as that of any adult or child he or she has a duty to maintain, in mind. Of course, the cost of supporting the child provided by the party with whom the child lives is also a necessary consideration (s66K).

9. My considerations of the matters relating to the husband are limited by some very significant elements of this case. The first is that the husband did not defend these proceedings and evidence he might or should have put before me is not available. The other matter is that the husband has not filed even a remotely relevant financial statement, although the proceedings were such that he was required to do so. I ordered him to lodge security for costs of his 2005 application to discharge any arrears or child maintenance etc or interest on it which have accrued to the wife. He did not do so. Those proceedings have been stayed. This order does not mean he could not have defended the wife’s claims which I am now deciding, but he chose not to do so. Security for costs can, on my understanding of the common law, only be ordered against an applicant or cross applicant. S117 of the Act does not continue this limitation, but by its own terms is subject to the Rules of Court. The Family Law Rules, by rule 19.05, only declare that a respondent or cross-respondent can apply for an order against an applicant or cross-applicant. In any event, the order made for security only stayed the husband’s application for discharge of the child support agreement and any liability he had to the wife for child support.

10. Although the Family Law Act requires the Court to consider the husband’s financial circumstances, I cannot do this in detail because he has not provided the Court with the necessary information. The last financial statement he filed was in July 2005. It discloses that his only income was 109.45 pounds from a British pension and that he had no assets and $520,000.00 of liabilities. The wife challenges the veracity of these claims. Much of what I know of his finances comes from the judgement of Campbell J. and is out of date and too incomplete to be relied on.

11. In mid 2000, the husband received the equivalent of about $972,500.00 after selling real estate in England and, in August 2003, he received another amount equal to about $400,000.00 when he sold his home there. In 1999 he received about $180,000.00 as a superannuation payment, but I am not able to say whether it, like any of the other funds held by the husband, still exists.

12. I do not know if the husband now has an income and, of course, do not know what it might be. I know that from August, 2005 to mid 2006 he earned about $126,000.00 clear of tax from one source and in June, 2006 transferred about $60,000.00 from Australia to a bank account in his brother’s name in the United Kingdom. He claims to have used this money to pay off debts. No child support or child maintenance was paid for from his income or assets for the benefit of the parties’ children while he held any of these funds. The child of his other relationship lives with his mother in England, but I do not know what, if any, obligation the husband has to maintain this child or this child’s mother. The husband’s failure to comply with the requirement that he disclose his financial situation, in the circumstances, means I must assume that he can afford to meet any order which might reasonably be made against him.

13. The husband has entered into an agreement called a “Success Option Deed” with four people and two companies to provide him with financial incentives for periods up to 30 June 2007 by way of call options to purchase shares. I do not know what the value of the options he might receive is. There is no date on the copy of the document amounting to this agreement which is in evidence. To be of realised value to the husband, he must exercise his right of call within 1 year after 30 June 2007. The agreement is to give the husband an incentive for doing consultancy work for Y Pty Ltd. The value of the incentive is calculated by reference to the earnings of that company’s Adelaide branch in the 2005, 2006 and 2007 financial years. 

14. The wife is not in employment and has not been engaged in paid employment for many years. Apart from what she says the husband owes her, she has assets which are worth about $1.042 million, mainly comprising of an investment portfolio worth about $1 million which realises about $750.00 per week before tax. As her outlay is about $1,450.00 per week, her assets and potential investment income are gradually reducing.

15. Over the years there has been much litigation between the parties. The wife has obtained judgements and costs orders against the husband. Excluding a costs order I made against him on the wife’s application for security for costs, which I shall deal with in this judgement in due course, and the husband’s alleged indebtedness to the wife for child maintenance, he owes the wife about $41,000.00 for costs and interest resulting from the litigation between the parties.

16. The wife’s evidence is very sketchy about the actual cost of maintaining the children and her financial situation during the period involved. The parties did, however, by their child support agreement of March 1993, agree that periodic child support be $175.00 per week per child. The 8 July, 1994 agreement increased this to $200.00 per week from 1 July 1994 plus CPI increases from 1 July 1995 onward. They also agreed by the 8 July 1994 agreement that the husband would pay all private school expenses of the four children “at their then schools” or at schools otherwise agreed to or nominated by order of the Court. There has been no agreement or order of the Court. These agreements and that imposing personal liability on him to pay medical benefits premiums raise the inference that, in mid 1994, the husband expected to be able to afford to meet the agreed obligations and that they were appropriate to the situation each party was in and that this would continue to be the situation as long as the agreement remained in force; that is, while the husband remained in Australia. This is not of much comfort to the wife for the period after he ceased to be resident of Australia, the whole period covered by the child maintenance claim. Today the per child periodic maintenance would probably be about $275.00 per week if the $200.00 in 1998 was increased according to the CPI. The wife’s financial statement of the 14 July 2006 asserts this, my rough calculations are consistent with this assertion and I accept that this is roughly the correct amount.

17. When the wife filed her most recent financial statement in mid 2006 only two of the parties’ children were living with her, L and E. E’s income was $50.00 per week and that of L was $200.00 per week. The wife’s outgoings were $1,763.00 per week, not including her rent of $560.00 per week, but including E’s school fees of about $400.00 per week and other educational expenses.

18. To house and otherwise maintain herself, the wife was paying about $1,060.00 each week. Part of the cost of housing herself would also be the cost of housing E. Her rent would probably not be lower if he were not living with her as homes which are available for rent usually have 3 bedrooms. The balance of $1,134.00 was spent on the children who were living at home. She was spending $451.00 directly on E. Despite it being a very large proportion, relatively speaking, of her income, the wife’s expense on his education was $357.00 per week. It is likely that, when C also attended a private school, the wife spent at about the same level to maintain him.

19. The key educational costs come into two categories. One is for when the boys were boarders, the other is for when they were not. The child support agreement infers that the parties envisaged the prospect that the boys would have private school educations. That they were both attending private schools and had been doing so for some time when the child support agreement became ineffective is of relevance. The boys and wife, no doubt, expected their education to continue at private schools. In the absence of evidence from the husband, the inference is, on balance, that the husband probably also had this expectation at that time.

20. The two boys were day pupils at P School in 1997. They continued at the school in 1998. As the tuition fees were not paid for the whole 1998 year, the boys left the school at the end of 1998. The school claimed about $35,000.00 was due to it for their fees by the time they left. The husband has not paid any of this. Nevertheless, according to the wife’s affidavit evidence, the parties agreed that E and C should then attend K School. They were enrolled there in December 1998 for the 1999 school year. The husband thereafter met the 1999 school fees at first, although the wife paid the fees which fell due on 30 July 1999. The amount she said she paid is $13,217.00. The boys were boarders in both 1999 and 2000. As the husband enrolled the boys and paid their fees as boarders for part of 1999, he must have originally agreed for them to be enrolled and at least accepted that they should be boarders in the part of 1999 for which he paid.

21. Consistently with this, Campbell J. found that from mid 1999 the husband did not approve of the boys’ continuation at K School (para. 364). He also found that the husband had paid $47,000.00 “in connection with the children” from December 1997 to term 3 of 1999. He said the monies he paid were “all connected with his obligation to maintain his children.” This does not mean it was the limit of his obligation, so the finding only binds me to the extent that, if I find an obligation of $47,000.00 or less in the husband to maintain the children between late 1997 and the time when Campbell J. delivered his judgement; 27 March 2002, is proper, the husband will be regarded as having met his obligation for that period and should be given credit for the payment of the $47,000.00 towards his obligation for that period. However, his Honour held that the husband could not have afforded, given his reduced circumstances, to make child maintenance payments from November 1997 to the date of the hearing before him at the rate provided by the child support agreement. (para. 361) The parties cannot escape the binding nature of his findings of fact. There is no doubt that they are covered by the doctrine of issue estoppel. So, in relation to them, I must include in my considerations the fact that from November 1997 to March 2002 inclusive the husband did not wish to support and could not afford to pay the sum which is crystallised by the terms of the child support agreement. It is not the only matter relevant to this aspect which I must consider and the issue of what the husband could “afford” in the context of the hearing before Campbell J. is different from that which must be decided when hearing an application for child maintenance. The Family Law Act limits a putative payee’s excuses for inability to pay child maintenance to a greater extent than might be expected in a hearing such as that between the parties in the Supreme Court.

22. From 1999 to 2002 the wife paid the school fees for the attendance at K School of C and E. In 1999 she paid $13,600.00 for their attendance in term 3 as boarders. In 2000 she paid about $42,000.00 for their attendance for the year as boarders. In the circumstances, it seems to me to be entirely unreasonable for her to have, contrary to the husband’s wishes and her own financial circumstances, enrolled them as boarders. There is no evidence that they expected to be boarders. She could not afford to pay their fees and it was quite irresponsible of her to incur them. She already knew the husband had failed to pay the boys fees for attendance at their former school. It is probable that Campbell J.’s finding that the husband could not afford to pay child support at the rate provided in the agreement covers an inability to afford the boys’ fees for boarding. 

23. It was probably the boys’ expectation that they would be educated at private schools. In conformity with this, the wife continued their education at K School as day boys. The fees for their last year at their prior school were $17,800.00 which indicates they were not boarding at it. (see para. 87 Campbell J.) Between the start of the 2001 school year and late March 2002 when Campbell J. delivered his judgement, she paid $33,380.00 for C and E at K School.

24. I have noted the time of Justice Campbell’s judgement because I regard it as significant. The proceedings before him under the de facto provisions (s. 20) of the Property (Relationships) Act 1984 involved claim and counter-claim by each of the parties relating to the respective contributions each made to property available for division for the purpose of deciding a just and equitable division of that property. Child maintenance obligations and contributions were taken into account, as they must be. The wife’s claim to property adjustment was relatively small. The husband, however, claimed a large sum from the wife on the ground that he had paid a larger sum from 1995, when the de facto relationship of this previously married and divorced couple commenced, until August 1999, when it ended. The wife sought to counter the husband’s claim by asserting that, until the hearing in 2002, she had paid the education costs of the children. His Honour held (para. 361) that, from November 1997 to the hearing, the husband paid $47,000.00 which he regarded as child maintenance payments. He found that because the payments were, in effect, made toward child maintenance, the wife was not obliged to repay the husband any part of this sum under s20 of the Property (Relationships) Act. Its payment was regarded by His Honour as child maintenance. I ought to regard it as such because it has already relieved the wife from any obligation to make any further adjustment in favour of the husband. In all the circumstances, it would be quite unjust and inequitable for me to disregard it or regard it as other than child maintenance. I shall regard the $47,000.00 as the husband’s contribution to child maintenance during this period. The issues relating to this period include whether the $47,000.00 was sufficient child maintenance in the circumstances.

1. The period involved is from 1 December 1997 to mid March 2002. 1 December 1997 is close enough to the time when the husband ceased to be a resident of Australia and ceased to be bound by the child support agreement to regard the relevant periods up to mid March 2002 as identical. From mid November 1997 to mid March 2002 amounts is 220 weeks. The $47,000.00 paid in that period amounts to about $213.00 per week. However, as I am satisfied that no more was paid by the husband after 1 April 1999, the $47,000.00 can also be viewed as the only child maintenance paid from December 1997 until 1 April 1999. Thus the $47,000.00 would be about 73 weeks at about $645.00 per week or about $214.00 per child per week. It is germane that the husband was able to afford to make payments at this level.

2. According to the judgement of Campbell J., in May 2001, the wife had estimated living costs of $2,693.00 per week (para. 157) including rent of $590.00 and school fees of $638.00 for the two youngest boys and private health insurance of $35.00. Her other outgoings were therefore $1,430 per week. It had been much the same since November 1995. The wife had had a very small income until she sold the home at N where the family had previously lived in late 1999 for $1.725 million net to her, of which she invested $1.596 million (para.329). Thereafter it is likely she that her income from investments after the sale gradually declined because she was living on her capital. It is now $765.00 gross per week. In May 2001 her assets were about $1.55 million of which about $1.5 million was invested. By 12 December 2001 her assets had been reduced to approximately $1.4 million, most of which was in investments, and she earned about $1,150.00 per week gross (para. 333). Leaving aside educational expenses for the children, by then her living costs were $2000.00 per week.

3. In paragraph 16(a) of the judgement delivered on 22 September 2006, in the proceedings over security for costs, I found that the husband, when living in Australia until 31 May 2006, seemed to be earning about $8,200.00 per month, then received $72,000.00 in some form of termination payment. I also found that other documents seemed to indicate he had earned about $126,000.00 net in 8 1/2 months; that is, approximately $3,700.00 per week clear of tax. That he had accumulated funds is shown from the fact that in June 2006 he transferred about $60,500.00 to his brother’s bank account in the United Kingdom and claimed this was to pay debts although he had at an earlier stage explained that the $60,000.00 was no longer under his control.

4. As with the proceedings before me, the husband does not seem to have been very forthcoming about his financial situation in the proceedings heard by Campbell J. By the time of the Supreme Court hearing the husband seems to have had a pension of $222.00 per week and had a job in Australia from June 2000 to December 2001 which allowed him to earn $1,602.00 gross per week or $1000.00 net (para. 332).

5. It is noteworthy that Campbell J. did not come to a clear conclusion about the extent of the husband’s assets. He pointedly said that in November 2000 the husband “gave evidence” that he had about $600,000.00 net in assets plus a contingent liability for a property settlement of about $243,000.00 to W’s mother. His Honour did not find that this claim reflected the husband’s actual financial situation. He did contrast the claim with the husband’s situation in 1995, which he seems to have accepted as accurate, of about $2.08 million in net assets.

6. Notwithstanding that I have some knowledge of the husband’s financial history because in the proceedings now before me, I cannot be at all confident I have any reasonably accurate understanding of the husband’s financial circumstances. As I have said, I must conclude that, at present, he is able to afford whatever order I make against him for child maintenance for the whole period of the wife’s claim. This is despite the fact that he probably has always had an obligation to support W for the same period and may have done so and may also have supported W’s mother for all or part of it.

7. The children are entitled to have had their proper needs met from reasonable and adequate shares in the earnings, earning capacities, property and financial resources of both parties. The parties should share the cost of these needs equitably considering the children’s ages, the manner in which they were being educated and the parties expected them to be educated and their respective financial situations. It is difficult to decide what is equitable in this instance, because of the period over which the claim for child maintenance is made. The lack of useful and specific evidence from both the husband and wife about their incomes, earning capacities, assets and the children’s needs and the cost of raising them on a yearly basis further inhibits the ability of the Court to reach a proper conclusion. There is no principle that if the husband did not have enough in a particular period to meet proper child maintenance obligations he would not have to meet these later if he later had enough to meet a claim for payment for a longer period although the longer period includes the period when he did not have enough.

8. The wife does not claim medical insurance for the children separately from child maintenance although in her claim for child support under the child support agreement she did so. In that instance she claimed $14,360.00 she paid in the 7 years from mid 2000 to the date of hearing.

9. I conclude that, in all the circumstances, it was reasonable of the wife to have kept the boys at K School as boarders in 1999 in term 3 because the husband paid for them to be there on that basis in the first two terms of that year although he did not thereafter agree they should continue. The husband had been complicit in an expectation in the boys to attend a private school for their whole school life. He had originally paid fees for their prior private school, then agreed to continue such an education in the child support agreement, then sought that they obtain scholarships there (which they did not obtain), then paid for their first two terms at K School. There is no doubt that the wife always wanted and expected them to attend a private school like those they attended.

10. Since the child support agreement expired each parent, in my assessment, should have met their school fees to an equal extent. The wife’s claim for the additional general cost of maintaining both boys and the daughter is $150.00 per child. Considering the assets which each of the parties probably has or has had, the husband’s likely earning capacity as well as that of the wife, the husband’s likely obligation to his other family and the fact that he can afford all these costs while not knowing how much he needs to support himself but knowing that the wife’s rent alone is at a level which nearly consumes her whole earnings from investment and that she is still drawing on her assets to meet her living costs, including the likely cost of maintaining the children which will not be met by any order for child maintenance, I am of the view that the wife’s claim for each child of $150.00 per week for the period since 1 April, 1999 until that child reached adult age is quite modest.

11. The current cost of maintaining 11 to 13 year olds is about $352.60 each per week according to the table derived from the 1989 work by Mr D. This $352.00 includes only $44.24 for education, medical, dental and an array of miscellaneous small costs. As medical insurance costs, at the family rate, about $40.00 per week, of which some $10.00 per week per child could be attributable to the children’s medical insurance, a $150.00 per week share for general maintenance cost per child plus half of each of the boys’ actual educational costs as day boys and as if they were day boys when they were boarders and half the boarding fees for the last term of 1999, seems to me to be fair and equitable. This conclusion takes into account the fact that the $352.60 standard is for a sole parent earning a little more than $1,000.00 per week and that over the years since 1999 there has been a gradual increase in the cost of living. It was reasonable for the wife to draw on her capital to meet the shortfall between her cost of living including maintaining the children less the additional costs that were incurred by the boys as boarders. The family, including both husband and wife, has always seen itself as having a right to a much higher than average standard of living and have always lived as though they were well off. There is no evidence that, during any period while they were at school, the children have had any significant income of their own.

12. It should be assumed that the combined day fees for the boys would have been about $8,000.00 per term for the whole of 2000. The husband’s half share would be $12,000.00 (3 x $4,000). The last term of 1999 cost $13,600.00. From the start of 2001until each boy finished his schooling the wife paid a total of $137,898.75 in school fees according to annexure “F” to her affidavit of 17 July 2006 which I accept as accurate. Thus, the husband should pay as child maintenance half of this, being rounded off to $69,000.00. The school fee component of the wife’s claim for arrears of child maintenance should therefore be about $94,600.00.

13. In relation to the claim for $150.00 per week per child which I accept, the result is:

    a)L attained 18 years in March 2001 – 1 April 1999 to 4 March 2001= 56 weeks at $150.00 per week= $8,400.00

    b)C attained 18 years in October 2004- 1 April 1999 to 2 October 2004= 286 weeks at $150.00 per week= $42,900.00

    c)E attained 18 years in April 2007- 1 April 1999 to 14 April 2007= 418 weeks at $150.00 per week= $62,700.00

14. Thus the husband should have paid the wife a total of $208,600.00 from 1 April 1999 to 14 April 2007 for child maintenance. He paid $47,000.00. Because the wife has therefore paid $161,500.00 he should have paid, she lost the interest she would have earned on the money the husband should have paid for the children. She, throughout that period, actually relied on her investment income, so has lost about $25,500.00 (4% p.a., based on para. 333 of the judgement, on an average of half of $161,500.00 for about 8 years). It is more than this because the greater part of her outlay in child maintenance was at the beginning and it gradually reduced as the children finished school and turned 18 years. I do not regard it as just to ignore this loss. I think the husband should be ordered to pay it. Otherwise, his failure to reimburse the wife for such loss after the wife has made the payments will result in undue hardship to her because she continues to rely on the income from her investments and will continue to lose income and further need to live off capital if the lost interest is not reimbursed and the husband will, in effect, have had the benefit of the use of the principal and interest. The husband should be ordered to pay lump sum child maintenance for the three children in accordance with my findings in the sum of $161,500.00. I shall make such an order.

15. The wife sought in her application filed in Court on 20 March 2007 that the husband pay interest on the sums payable to the wife pursuant to registered agreements to reimburse her for school fees and medical insurance. I think the interest I have calculated on the amount payable to the wife by the husband for lump sum child maintenance to date should be paid. I have not found that such sum is payable to the wife pursuant to any registered agreement or agreements. It is also proper for the husband to pay interest pursuant to s117B at the rate prescribed by the Rules of Court from the date of my order for payment of the principal of $161,500.00. No order is required for this interest to become payable.                

16. On 18 December 2006 I made an indemnity costs order against the husband in favour of the wife in relation to an application which the wife had made for the husband to lodge security for costs or be subject to a stay of proceedings he had instituted on 19 January 2005 in the Federal Magistrate’s Court in Adelaide to set aside the child support agreement. It was subsequently moved to the Sydney Registry of the Family Court of Australia. It is in much the same terms as that which was dismissed by O’Ryan J. The wife succeeded in her application for the husband to lodge the security and, as he failed to do so, this application was stayed. Although the husband appeared, unrepresented, at the hearing of the application for security which was heard in August 2006, he did not appear when the costs application was heard on 18 December. In addition to the costs order, I ordered that the husband be served via his email address and by post addressed to him at his brother’s address in the United Kingdom up to date. He has filed no proper address for service. At the latest, the costs were payable one month after service of a fully itemised bill of the wife’s costs.

17. The wife’s solicitor served on the husband in accordance with my order for service copies of the orders made on 18 December together with his tax invoices which are equivalent to an itemised bill of costs in taxable form. Service was effected on the husband both by email at the husband’s email address and by post to the husband care of his brother at his brother’s home in the United Kingdom. The wife’s solicitor emailed the material on 21 December 2006 then posted it on 30 December 2006. I am satisfied the modes of service successfully brought the orders and the bill of costs to the husband’s actual notice. The emails were successfully received at the email address and the posting reached the husband’s brother. The husband’s brother later, in late January, sent the material back to the wife’s solicitor and wrote claiming he did not know where his brother lived, so it is clear he received the material to be served, but the husband is also highly likely to have received it by email. For added precaution, the wife’s solicitors resent the orders of 18 December to the husband via his email on 2 January 2007. This email was received. The matter was then listed for undefended hearing on 20 March 2007. A letter notifying the husband of this was successfully sent by email on 16 January 2007.

18. The hearing listed for 20 March 2007 was initially for the purpose of dealing with the wife’s claims to enforce the child support agreement or, alternatively, for child maintenance. On 19 March 2007 the wife filed a fresh application. On 20 March 2007 I granted leave for this to be filed in Court together with her affidavit and that of her solicitor, each sworn on 19 March. On 23 March I made ex-parte orders pursuant to this application. Included are orders for service on the husband of these orders as well as the fresh application and service on the husband was to be by sending copies of the orders and application by email and posting copies of these documents to him care of his brother by 27 March 2007. The evidence satisfies me that the husband was served as required by the orders and that such service is likely to have brought these matters to the husband’s attention. The orders I made are:

    1.That reasons for judgment are reserved in all matters said to be outstanding and filed before today.

    2.I restrain until 5pm Sydney time on 30 March, 2007 the applicant [husband], [Mr T], [Mr M], [Mr F], [Mr H], [TO] Pty Limited and [Y] Pty Limited from disposing of, disbursing, encumbering or otherwise dealing with any property or interest of any nature in which the husband has any interest at law or in equity pursuant to the undated agreement made between the applicant [husband] and [Mr T]. [Mr M], [Mr F], [Mr H], [T] Pty Limited and [TO] Pty Limited and entitled Success Option Deed.

    3.I restrain until 5pm Sydney time on 30 March, 2007 the applicant [husband], any assignee or transferee from the applicant and any nominee of the applicant from receiving any benefits or monies pursuant to the deed referred to in order 2. herein and from dealing in any way with any property, benefit or monies already received by any assignment, transfer, nomination or otherwise as a consequence of the said deed.

    4.That each person and entity referred to in order 2. except the applicant [husband], be served with these orders and the respondent’s application filed in court today and dated 19 March, 2007 and the supporting affidavits at or before 10am on 27 March, 2007 and otherwise in accordance with the Rules of Court.

    5.That these orders and a copy of the wife’s application filed in court on 20 March, 2007 and dated 19 March, 2007 and supporting affidavits be served on the husband at or before 10am Sydney time on 27 March, 2007 at his email address and by prepaid airmail to him care of his brother at the address referred to in the orders of 18 December, 2006.    

    6.That the issue of continuance of orders 2. and 3. be adjourned for mention before me on 30 March, 2007 at 10:00am.

    7.That the respondent [wife’s] costs are reserved.

19. The wife’s application filed in Court on 20 March 2007 as relevant to the issues which I am now dealing with is:

    4.That by way of enforcement of the order made 18 December 2006 the following persons and companies be restrained from disbursing to the applicant father or his nominees or assignees any monetary proceeds or funds arising from the exercise of the options held by the applicant father pursuant to the undated agreement made between the applicant father and [Mr T], [Mr M], [Mr F], [Mr H] and [T] Pty Ltd CAN […] (“the Success Option Deed”) with [Y Pty Ltd], namely:

    4.1.[U] Pty Limited or any of its subsidiaries or related entities;

    4.2.[Y] Pty Limited or any of its subsidiaries or related entities;

    4.3.[S] Pty Limited or any of its subsidiaries or related entities;

    4.4.[I] Pty Limited or any of its subsidiaries or related entities;

    4.5.[A] Limited or any of its subsidiaries or related entities;

    4.6.[D] Pty Limited or any of its subsidiaries or related entities.

    5.That the estate of the applicant father […] be sequestrated, pursuant to 109A(3)(d) of the Act.

    6.That [Mr G]be appointed sequestrator of the estate of [the father] pursuant to Rule 20.42 of the Family Law Rules.

    7.That until further order the applicant father or any assignee of the applicant father or any nominee of the applicant father be restrained from receiving any benefits or monies pursuant to the Success Option Deed or from dealing in any way with his entitlements under the Success Option Deed.

    8.That the applicant father pay to the wife the costs of an incidental to these proceedings on an indemnity basis.

20. The husband did not appear on 30 March 2007. The three companies named in the ex-parte orders chose not to appear on that day but indicated in writing that they would comply with the ex-parte order and any other related order that the Court might make. The individuals other than the husband against whom the restraint was imposed did not appear. The orders made on 30 March 2007 are:

    1.That orders 2. and 3. of 23 March, 2007 continue until further or final orders.

    2.That these orders be served on each of the parties named in orders 2. and 3. of 23 March, 2007 within one month by the same means of service as ordered on 23 March, 2007.

    3.That I reserve costs of today.

    4.That I reserve judgment. 

21. I am satisfied that service on the husband and others bound by these orders was achieved in accordance with my orders for service.

22. The husband’s brother wrote a letter dated 12 April 2007. It is addressed to my associate and was subsequently received by the Court. Enclosed with it are copies of the letter written to the husband by the wife’s solicitors and dated 20 March 20 which enclosed copies of the orders made 23 March 2007 as well as the wife’s application in case, her affidavit and the wife’s solicitors affidavits all of which were filed in Court on 20 March 2007. There is therefore no doubt that the husband’s brother received them. I am quite satisfied they were brought to the husband’s notice on their receipt despite the brother’s claim in his letter that the husband does not live with the brother and was last spoken to by him when he was on his way to Dubai. It is noteworthy that the husband’s brother did not suggest he did not know where his brother was or did not know how to contact him. Although it is highly unlikely, if the husband does not have actual notice of these proceedings he has brought that about by his own actions in failing during their continuance of proceedings to provide an address for service. The more likely prospect is that he has deliberately chosen this to avoid service but has had notice though his brother and email of the proceedings sufficient to permit him to defend them if he had wished to do so. 

1. I am satisfied that the costs payable by the wife to her lawyers for the proceedings which were the subject of the indemnity costs order in favour of the wife against the husband which was made on 18 December 2006 is $36,201.99. The bill of costs which itemised the components of it was served on the husband well over 1 month ago. He has never paid nor challenged it. The wife is entitled to an order designed to enforce payment because of the history of non-payment by the husband of monetary orders in favour of the wife which have been made against the husband, many of which have been costs orders, the husband’s residence overseas and his failure to disclose his address or even the country in which he lives, his prior history of moving funds out of Australia when the wife had a claim on them which was the subject of proceedings which were in progress in this Court. My judgements of 22 September 2006 and 18 December 2006 include the findings about such conduct which are binding on the parties on which I rely. A highly appropriate mode of enforcement is to appoint a sequestrator of the husband’s estate, if any, which is in the jurisdiction of the Court. Sequestration is an available remedy for non-payment of a costs order because of s109A of Family Law Act. S109A(1)(b) permits the Court to make rules for enforcement of orders within the meaning of “orders” under Part XIIIA of the Act. An order for costs is an order under S112AA which is part of Part XIIIA. S109A(3)(d) permits Rules of Court to provide for sequestration for the purpose of forcing a person to do something where he has failed to do it and is bound to do so by a Court order. This is the result of reading subsection (2)(c)(v) and (2)(a)(vi) of s109A.

2. Sequestration of property is provided for by Part 20.5 of the rules. I am satisfied that the wife has sufficiently complied with the rules for sequestration and, as I have already said, I am satisfied that the husband has been served with the orders made 18 December 2006, that he has failed to comply with those orders by paying the sum of $36,201.99 in costs to the wife within 1 month of service of the bill of costs which I am satisfied has been served and that there is no other appropriate mode of enforcement available in the circumstances that the only known interest in property held by the husband in the jurisdiction of this Court is a chose in action and because the husband is not known to be within the jurisdiction of any Court which has the capacity for reciprocal enforcement.

3. Sequestration, in the circumstances here, needs to be examined to ensure it is an available remedy. The only known property of the husband which might be readily available to a sequestrator is the right of action which the husband has as a result of the Success Option Deed. The parties to it are the husband, Mr T, Mr M, Mr F, Mr H, T Pty Limited and TO Pty Limited. The copy of this deed which is available to the wife is undated but this is of no relevance. The deed was executed for the purpose of giving the husband an incentive in relation to advice he might give to Y Pty Limited either in his own right or through a company, O Pty Limited. It gives him a right based on profitability of the Adelaide branch of Y Pty Limited in 3 financial years of its operations: 2005, 2006 and 2007. However, it is a right which must be exercised to produce a tangible financial benefit and the husband may decide not to exercise it if a sequestration order is made against his property. On sequestration, if there is a restraint on exercise of the option by the husband the husband could lose it if the restraint lasts for longer than the time limited for its exercise and the wife would thereby lose the benefit of what might otherwise be a gain in the husband’s property in Australia. The husband should lose the personal right to exercise it and the sequestrator should become the only person with such a right. There is nothing in the Success Option Deed which prevents a sequestrator from effectively exercising the right. I should make a sequestration order against the husband and his property for the purpose of enforcing the order which, in effect, required him to pay to the wife $36,201.99 and give the sequestrator the right to exercise the option in the husband’s stead. It is the most practical and viable method of obtaining compliance with the costs order. If necessary, the wife will then be able to apply for specific orders which suit the circumstances which are found to exist. The wife has complied with the requirements for such an order including obtaining consent of a suitable appointee as sequestrator whose fees are, in my opinion, proper. I shall order the sequestration and appoint the sequestrator nominated by the wife.

4. The parties to the success option including the husband and Y Pty Limited have either consented or not defended any order restraining them from taking any steps to lessen the value of the rights of the husband or his successors to those rights under the option. I shall make an order which continues the restraint except in relation to any exercise of the option. I note that the rules require the address of the husband to be clearly stated in any sequestration order. It is not known, so cannot be stated. I shall not comply with that aspect of the rules.

5. The orders I shall make are:

   1.That the wife’s enforcement summons filed 16 December 1999 is hereby dismissed.

   2.That within 1 month the husband pay to the wife lump sum child maintenance in the sum of $161,500.00.

   3.That within 1 month the husband pay to the wife interest on the said lump sum maintenance referred to in order 2. in the sum of $25,500.00.

   4.That forthwith the husband pay to the wife care of Paul and Paul Lawyers … , the sum of $36,201.99 pursuant to the costs order made against the husband in favour of the wife on 18 December 2006 in this honourable court.

   5.That the estate of the husband, … , is hereby sequestrated pursuant to s109A(3)(d) of the Family Law Act for the purpose of enforcing order 4. herein.

   6.That Mr G be appointed sequestrator of the estate of the husband pursuant to s109A(3)(d) of the Family Law Act.

   7.The said Mr G is hereby authorised and directed to:

   a.      enter and/or take possession of the husband’s property including his rights in action;

   b.      collect and receive the income of the property; and,

   c.      exercise on behalf of the husband any option arising from the agreement called Success Option Deed made between the husband and Mr T, Mr M, Mr F, Mr H, T Pty Limited and TO Pty Limited in relation to the earnings of Y Pty Limited. 

   8.Until further order the husband, Mr T, Mr M, Mr F, Mr H, T Pty Limited and TO Pty Limited are hereby restrained from disposing of, disbursing, encumbering or otherwise dealing with any property or interest of any nature which the husband holds at law or in Equity pursuant to the agreement called Success Option Deed referred to in Order 7. except to the said Mr G.

   9.The said Mr G’s fees shall be in accordance with annexure “C” to the wife’s affidavit sworn 20 March 2007, plus GST, plus all reasonable disbursements.

   10.Costs are reserved for 1 month.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgement of the Honourable Justice Cohen.

Associate: 

Date:              17 JULY 2007 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SLATTERY & SLATTERY