Tillman and Tillman

[2017] FamCA 635

FAMILY COURT OF AUSTRALIA

TILLMAN & TILLMAN [2017] FamCA 635

FAMILY LAW – Enforcement – property order

APPLICANT: Mr Tillman

RESPONDENT: Ms Tillman

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1102 of 2014

DATE DELIVERED: 16 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 16 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1.Within 14 days of service upon the respondent wife with a sealed copy of this Order, the wife provide to the husband and / or to J Lawyers, the following information:

a.      Confirmation of her taxation liability in Australia and / or in the United Kingdom as a result of the sale of the property at B Street, C Town, United Kingdom (“the B Street property”); or

b.      An estimate of her taxation liability in Australia and / or the United Kingdom as a result of the sale of the B Street property.

2.In the event that the respondent wife fails or neglects to comply with paragraph 1(a) or 1(b) of this Order, the wife’s taxation liability for the purpose of paragraph 6(c) of the Order made on 22 January 2016 be deemed to be “nil”.

3.The husband be responsible for causing a sealed copy of this Order to be served on the wife personally as soon as practicable and be in a position on the return date to prove that service has been effected.

4.The further hearing of the husband’s Application in a Case filed 28 July 2017 (“the husband’s application”) be adjourned to Wednesday 6 September 2017 before me at 9.30 am.

5.There be leave to the husband to file the Affidavit of Service of Ms S, process server, sworn on 15 August 2017 pursuant to which I am satisfied the husband’s application was served on the wife personally on 10 August 2017.

6.My reasons for decision be transcribed and when settled be placed on the Court file and a copy provided to the parties.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tillman & Tillman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1102 of 2014

Mr Tillman

Applicant

And

Ms Tillman

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me on the husband’s application in a case filed on 28 July 2017.  He seeks orders which will implement the final property order made on 22 January 2016.  That order operates on the balance of the proceeds of sale of a property at B Street in C Town in England, which was sold for £550,000 and settled in March 2017.  From those moneys, the husband has received approximately $150,000 and the wife has received approximately $300,000 less approximately $10,000 which was owing to the husband by way of order for costs.  I am informed by the husband that there has been no appeal from the final property order made on 22 January and that it has not been set aside. 

2. There remains the sum of $120,455.25 held in trust by the husband’s former solicitors, J Lawyers. 

3. Pursuant to paragraph 6(c) of the final property orders, the wife is to receive 27.5 per cent and the husband is to receive 72.5 per cent of the balance of funds following payment of “any taxation liabilities associated with the sale of any of the properties in the United Kingdom”.

4. Today the husband appears on his own behalf.  The wife does not appear.  I am satisfied that the wife was served with the husband’s application in a case and his affidavit in support on 10 August 2017 at approximately 6 pm at a property at K Street, Suburb I, which is the address for service which the court has noted.  The matter was listed for 9 am this morning.  The husband has given evidence that he has not seen the wife or had any contact with the wife since he filed his application.  In particular, he has not seen the wife at court today.  The matter was called at the door of the court at approximately 9.20 am and there was no response to the call.  I am satisfied that the wife has been accorded procedural fairness in relation to the husband’s application in a case and the relief he seeks. 

5. The relief he seeks is set out in part D or paragraph 6, and if granted, would have the effect of implementing the outstanding property order, together the wife paying him some unspecified amount by way of “unnecessary legal and credit fees brought about by the respondent’s refusal to facilitate the January 2016 orders; specifically legal fees relating to this issue from 12 May 2017 and card interest since 27 April 2017 statement”.  The husband has sworn an affidavit in support.  Given the wife’s non-appearance, that evidence is not contradicted.

6. I have indicated that I am not prepared to grant the totality of the husband’s application, notwithstanding that it is unopposed by the wife.  I will do it in two stages.  I will require the wife to provide within 14 days of service upon her of the orders that I make today a statement which confirms her taxation liability – any taxation liability as assessed, or if it has not yet been assessed, an estimate of her taxation liability.  In the event that information is not forthcoming, the wife’s taxation liability for the purpose of paragraph 6(a) of the final property order will be deemed to be nil.

7. The husband has annexed to his affidavit in support of the application a letter from the wife dated 28 April 2017.  It is not signed because it was sent by email.  Notably, the first two pages of the letter appear to be admonishments by the wife of the husband and his lawyers in relation to the calculation of the husband’s taxation liability.  The husband maintains that his taxation liability was assessed at $68,467.25 and has already been dispersed from the proceeds of sale held by his former solicitors in accordance with paragraph 6(a) of the final property orders.  The wife takes issue with the amount of the assessment.  However, at the end of the day, that is really a matter for the husband.  If he wanted – if his taxation liability was, indeed, more than the amount which is, in fact, what is suggested by the wife, it would have been up to him to provide documentary evidence of that and seek that a greater amount be deducted from the amount of – from the balance of the proceeds of sale now held by his former solicitors.

8. What is outstanding as far as the husband is concerned and the matter to which his current application is directed is the quantum of any taxation liability accruing to the wife.  The wife purports to be “a fully qualified UK tax accountant”.  The husband takes issue with her qualification or experience in that regard.  Notwithstanding, I do have regard to the statement by the wife on page 3 of the correspondence annexed – in page 3 of her letter dated 28 April 2017, which says:

   I have provisionally used the HMRC calculator and don’t anticipate having to pay any capital gains taxes.  I will be claiming residential rebate for [B Street], having been my sole place of residence for six years, the cost of a loft conversion to the property and the loss I incurred when I had to relocate whilst works were carried out.  I will also be claiming tax relief from overseas rebased venue as of 5 April 2015.

9. I am satisfied that the only indication that the husband has to date is the statement by the wife that she does not anticipate having any taxation liability.  The impact of the order which I now make today, on the husband’s application, would be to put that beyond doubt.  The wife will have 14 days to provide relevant information to the husband or to his former solicitors.  I have included his former solicitors because I am informed that there is currently an intervention order between the husband and the wife which the wife interprets as prohibiting her having any contact whatsoever with the husband.  Therefore, she must be given a way that she can appreciate is a lawful means of communicating the information to the husband, and that is through J Lawyers.  

10. If, when the matter returns to court on 6 September 2017, there is no information from the wife which fits the description of a taxation assessment or an estimate of her – or what appears to be a credible estimate of her taxation liability, I anticipate that I will consider the amount owing under paragraph 6(a) by the wife for taxation to be nil, and order that the balance of the proceeds of sale be divided in the proportions set out in the final property order.

11. In relation to the issue of costs and disbursements and credit fees and interest payable by the husband as a result of the wife’s default, I have had some discussion with the husband.  The husband acknowledges that the credit card interest is essentially a matter akin to damages, and whilst it might not be impossible for him to recover in these proceedings, he does not seek to recover that amount today.  The husband has been charged, or will be charged, the sum of $1072.50 by his former solicitors, J Lawyers, for correspondence from May 2017, being letters written by them on 12 May 2017, 7 June 2017 and 10 July 2017.  In addition, there were the letters of 19 April 2017 and 27 April 2017, and having to peruse the mother’s – the wife’s fairly lengthy response of 28 April 2017.

12. In addition to the legal fees claimed by the husband, there are service fees of $148.50, which have been incurred in relation to this application today.  I anticipate that there would be a further similar sum incurred to serve the order that I now make.  There may be further additional costs to the solicitors by way of correspondence to both parties to the proceedings, when sending the moneys owing to the parties.

RECORDED:  NOT TRANSCRIBED

1. The husband relies on an email from his lawyers dated 15 August 2017 in relation to the quantification of his costs at $1,072.50.. I mark that Exhibit “H1” and direct that it remain on the court file, and that a copy be annexed to these reasons for decision. It is apparent that the sum of $1072.50 is the amount of costs which would be payable on an indemnity basis. This is not a case which, in my preliminary view, would attract costs on an indemnity basis. If costs are to be payable, they would be calculated on a party-party basis. That is on the scale calculated in accordance with the Family Law Rules.

2. The husband is advised in this correspondence that the amount is $676.20 on a party-party basis.  This means that the husband will incur costs in excess of $1000 for work for which he can only recover, if successful on a costs order, the amount of $676.20.

3. I will determine the issue of costs on the next date.  In the event that the wife is not at court then I will assume that the application for costs is unopposed by her and that she does not seek to be heard.  That concludes these reasons for decision.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 August 2017.

Associate: 

Date:  22 August 2017