Stinson & Goldsmith

Case [2022] FedCFamC1F 524

Federal Circuit and Family Court of Australia (DIVISION 1)

FIRST INSTANCE

Stinson & Goldsmith [2022] FedCFamC1F 524

File number(s): BRC 397 of 2018
Judgment of: CAREW J
Date of judgment: 22 July 2022
Catchwords:

FAMILY LAW – PROPERTY – ENFORCEMENT APPLICATION – LIBERTY TO APPLY – Where upon hearing the application the Court made amendments to consequential or machinery orders within a previous final property order made 23 July 2021 – Where the parties competing enforcement applications are dismissed.

FAMILY LAW – COSTS – Where the wife pay the husband’s costs of and incidental to the application in a fixed sum.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Fitzgerald vFish; sub nom PBF v TRF (FLR) (2005) 191 FLR 294

McMillan & McMillan [2016] FamCA 387

In the Marriage of Mohlier & Van Wyk (1980) 7 Fam LR 18

Penfold v Penfold (1980) 144 CLR 311

In the Marriage of Ravasini (1982) 8 Fam LR 903

Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6

Number of paragraphs: 68
Date of hearing: 21 July 2022
Place: Brisbane
Counsel for the Applicant: Mr T. Kirk QC
Solicitor for the Applicant: Phillips Family Law
Counsel for the Respondent: Mr K. Wilson QC
Solicitor for the Respondent: Pippa Colman & Associates Law Practice
Table of Corrections
16 September 2022 On page ‘i’ at the top of the Order the Applicants name was incorrect. Originally written as “MR X STINSON” has been corrected to “MR STINSON”. It is noted the error was not repeated on the Order published on the Commonwealth Courts Portal dated 22 July 2022.

ORDER

BRC 397 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR X STINSON
MR STINSON

Applicant
AND:

MS GOLDSMITH

Respondent

order made by:

CAREW J

DATE OF ORDER:

22 July 2022

Amended pursuant to the rule 10.13(1)(h) of the Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth) on 16 September 2022.

THE COURT ORDERS THAT:

1.Pursuant to the liberty to apply provision in paragraph 27 of the Order made on 23 July 2021, paragraphs 17, 18 and 21 be amended such that the words “within 60 days of the date of this Order” be replaced with the words “within 14 days of the date of the Order made 22 July 2022” and that the sum of “$602,415” in paragraph 21 of the Order made on 23 July 2021 be replaced with the sum of “$502,415”.

2.The Application for Enforcement filed on 15 July 2022 and the Application for Enforcement filed on 20 July 2022 be dismissed.

3.The wife pay the husband’s costs of and incidental to the application fixed in the sum of $5,500.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons…

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AGLC
Stinson & Goldsmith [2022] FedCFamC1F 524
Case
[2022] FedCFamC1F 524
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Stinson & Goldsmith involved competing enforcement applications in the context of a final property order made on 23 July 2021. The husband, Mr Stinson, sought amendments to the final order concerning the transfer of business properties and the associated financial obligations. The wife, who had appealed the final order, contested these amendments and both parties filed enforcement applications. The court was required to determine whether to amend the final order, considering the husband's failure to unilaterally contact the judge's chambers for an urgent listing and his refusal to pay the wife the sum of $602,415.

The court found that the husband had taken reasonable steps to implement the final order and had acted reasonably in refusing to pay the wife until an urgent listing was obtained. The court concluded that the husband's failure to contact the judge's chambers unilaterally did not undermine his efforts to comply with the order. Given the unforeseen delays and the wife's refusal to consent to a stay, the court exercised its discretion to amend the final order to allow for a reasonable timeframe for implementation. The court also considered the discretionary power to enforce an order and the general powers of the court to make orders in aid of enforcement, ultimately dismissing the competing enforcement applications.

The court ordered amendments to the final order, allowing the husband 14 days to implement the property transfer and reducing the payment to the wife by $100,000. The wife was ordered to pay the husband's costs of and incidental to the application in a fixed sum of $5,500. The form of the order is subject to entry in the court's records, and any minor typographical or grammatical errors may be reviewed and corrected.

Orders

Orders of the court

1. Pursuant to the liberty to apply provision in paragraph 27 of the Order made on 23 July 2021, paragraphs 17, 18 and 21 be amended such that the words “within 60 days of the date of this Order” be replaced with the words “within 14 days of the date of the Order made 22 July 2022” and that the sum of “$602,415” in paragraph 21 of the Order made on 23 July 2021 be replaced with the sum of “$502,415”.

2. The Application for Enforcement filed on 15 July 2022 and the Application for Enforcement filed on 20 July 2022 be dismissed.

3. The wife pay the husband’s costs of and incidental to the application fixed in the sum of $5,500.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I note that, to date, Mr Stinson (“the husband”) has incurred legal fees of $670,830 and the wife has incurred legal fees (not including the current applications) of $1,181,436 and the wife was ordered to pay the husband’s costs of the second appeal fixed in the sum of $14,500. Each party has been advised that their estimated further legal fees will be up to $10,000 in the case of the husband and up to $33,000 in the case of the wife. The net property of the parties or either of them at the time of the re-hearing before me in April 2021 was $5,254,763, which is to be divided in the proportion 57.5 percent to the husband and 42.5 percent to the wife. Background to the current applications The final order required, among other things, that the husband and the wife transfer their joint interest in a business property known as Property E to the husband and, contemporaneously with that transfer, the husband was to refinance the mortgage secured on that property into his sole name and to pay the wife $602,415 (see paragraphs 17, 18 and 21 of the final order). These actions were to occur within 60 days of the final order, namely by 21 September 2021. On 20 August 2021, the wife appealed, but did not serve her Notice of Appeal on the husband until 1 September 2021. In preparation for complying with the final order, the husband had sold two investment properties and made arrangements to borrow the balance required to pay out the wife. On 7 September 2021, the husband sought the wife’s consent for a stay of part of the final order including paragraphs 17, 18 and 21 pending the outcome of the wife’s appeal. The wife was in the process of retaining new lawyers and the husband’s indulgence was requested. Accordingly, the husband took no further steps at that time. On 13 September 2021, the wife refused the stay, and indicated that she was ready to settle but additionally, offered an undertaking to hold on trust all bar $100,000 of the sum required to be paid by the husband, pending the outcome of her appeal. The offer was rejected by the husband, who contended that the borrowing costs of about $23,000 and the interest on servicing the loan would be lost in the event that the wife’s appeal succeeded. Further, if the wife was also successful in the order she sought on appeal, namely, to retain 60 percent of the property pool, the husband contended that he would be unable to fund the balance required to buy her out. The wife contends that any such detriment could have been addressed by the Full Court depending upon the outcome of the appeal. On 17 September 2021, the husband filed an application to stay the operation of part of the final order including paragraphs 17, 18 and 21. Although an urgent date was requested by the husband, the Court registry did not immediately allocate a date for hearing, and when a date was allocated it was not until after the 21 September 2021, namely on 1 October 2021. On 20 September 2021, having not heard from the Court registry despite numerous communications, the husband requested that the wife consent to him contacting my Chambers to seek an urgent listing. The wife refused his request. Despite the urgency, the husband did not unilaterally contact my Chambers as he would have been permitted to do.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There can be no doubt about the intention of the final order when regard is had to my Reasons for Judgment at [91] and [92]:91. Other than if the wife defaults in her payment to the husband (and that will only arise if the husband defaults on his payment to the wife), I do not intend to provide for the wife to retain any of the [business] properties. It is common ground that the [business] properties were always intended to one day be the husband’s property and that he largely conducted the [business] enterprises throughout the marriage and subsequent to separation. His long time aim has been to devote his full time attention to [business].92. I am not at all attracted to the prospect of the parties becoming neighbours given the tensions between them and limited capacity to communicate. They also have young children and being exposed to unnecessary tension should be avoided if at all possible. Therefore the husband will have the opportunity to retain all the [business] properties and pay out the wife. There seems to be some prospect of him being able to borrow sufficient funds to do so.Conclusion If the final order is not amended, not only would the result defeat what was accepted at trial as common ground i.e. that the business properties were always intended to one day be the husband’s property, but it would also defeat the clear intention to avoid the parties being neighbours. The unforeseen eventualities that occurred in this case i.e. the wife’s appeal and delay in service, the wife’s refusal of a stay of the final order and the difficulties in obtaining a listing for the stay application, all contributed to the final order not being implemented. In my view, the husband took all reasonable steps to implement the final order (until advised of the wife’s appeal), and thereafter to apply for a stay. I do not regard his failure to unilaterally contact my Chambers on 20 September 2021 as fatal. Nor do I regard the husband’s refusal to pay the $602,415 to the wife, to have been unreasonable, in the circumstances. I accept that the potential detriment to him was not insignificant and I am not persuaded that the detriment could necessarily have been addressed by the Full Court in the event the wife’s appeal had succeeded. I propose to amend the final order as sought by the husband, although the time I propose to allow for implementation will be 14 days rather than seven days, as I note that paragraph 18 provides for the wife to have seven days to sign documentation. It may be that the documentation has been signed, in which case the seven days may not be problematic, but I will hear from the parties prior to formally pronouncing my order. enforcement In the event that I am wrong in my determination to amend paragraphs 17, 18 and 21 of the final order pursuant to a general power to amend machinery or consequential provisions of an order to enable the implementation, I will turn to consider the competing enforcement applications. The discretionary power[6] to enforce an order is found in s 105 of the Act and the general powers of the Court as set out in the applicable rules of Court, include the power to make an order “in aid of the enforcement of an obligation”.[7] [6] McMillan & McMillan [2016] FamCA 387 at [33].[7] See r 11.07(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Ratio Decidendi

Legal Principle Established

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