Linford & Ennis (No 4) [2025] FedCFamC2F 1186 (29 August 2025)

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).

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

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By an enforcement application filed 31 January 2025 ("the enforcement application"), Mr Linford ("the Applicant") sought orders to enforce Order 2 of the final property adjustment orders made by this Court on 30 October 2024 ("the final orders"). Pursuant to those orders, Ms Ennis ("the Respondent") was to pay $236,000 ("the adjustment sum") to the Applicant within 60 days of the date of the final orders. In default, one or more of three properties subject to mortgages were to be sold to obtain funds to pay the adjustment sum, along with any interest due for late payment.
2. The final orders had been made on 30 October 2024 following a final hearing in June 2024, during which each party was represented by very experienced counsel. The parties had opportunity to consider draft orders and calculations before the Court formally pronounced the final orders at the time judgment was delivered, and the terms of final orders pronounced were not opposed.
3. The application for enforcement came before me on 26 February 2025 for mention, at which time orders were made by consent extending the timeframe for the Respondent to comply with Order 2 of the final orders to 4:00pm on 28 February 2025 as the Respondent maintained she had funds to pay the adjustment sum. There remained an issue as to whether interest was payable on the late payment of the adjustment sum.
4. The Respondent opposed enforcement of the Applicant's entitlement to interest, as she claimed the Applicant had frustrated her ability to refinance mortgages and had engaged in delaying conduct about other aspects of implementing the final orders. I suggested a pragmatic approach may be for the Applicant to forgo the interest claim because the delay was not extensive and the dispute about whether the Applicant had frustrated the Respondent's attempts to refinance would require a hearing.
5. I adjourned the enforcement application for hearing to another date and made procedural orders requiring the Respondent to file her responding material.
6. On 21 May 2025, the Applicant filed an Application in a Proceeding and supporting affidavit. By the Application in a Proceeding, he also seeks an order to enforce Order 11 of the final orders to recover his entitlement to 50 per cent of the net funds received from the return of a deposit the parties had paid to FF Pty Ltd ("FF Pty Ltd") in respect of purchase of a property ("the FF Pty Ltd property") given that the purchase did not proceed. He also maintained that he should recover the sum of $3,992 for interest on the delayed payment of the adjustment sum, being calculated as 59 days at 10.35 per cent per annum.
7. The order sought in relation to Order 11 of the final order was not initially part of the enforcement application and strictly speaking the Applicant ought to have filed an amended enforcement application or sought leave to amend the application he had already filed. As both parties are self-represented and at the hearing on 25 July 2025 were keen to finalise the two outstanding issues rather than adjourn, I exercised power to dispense with compliance with the formal requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"),[1] and granted the Applicant leave for the Application in a Proceeding filed 21 May 2025 to be treated by the Court as an amended enforcement application.
8. The Applicant relied on his affidavit dated 22 April 2025 and filed 21 May 2025, and he made oral submissions to the Court about why the orders sought should be made. In particular, he stated that:

(a) Court orders are to be complied with and, because he had been paid 59 days late, the interest was payable by the Respondent to him;

(b) Regarding the $50,000 deposit recovered from FF Pty Ltd ("the FF Pty Ltd deposit"), he submitted that the amounts deducted by the Respondent from the FF Pty Ltd deposit were not proper deductions pursuant to the terms of Order 11 of the final orders. He claimed that because he had only been paid $17,251.50 on 5 March 2025, a further $7,738.50 was owing to him;

(c) As the parties had jointly instructed Mr PP, a lawyer, to lodge a caveat on the FF Pty Ltd property during their relationship to secure repayment of the $50,000, nothing further was required and any work undertaken by the law firm QQ Law Firm was unnecessary; and

(d) Alternatively, he should not solely bear the legal costs of recovery while the Respondent bears none.

1. The Respondent sought to rely on an irregular amended affidavit purported to be affirmed on 5 May 2025. She also tendered three invoices said to evidence legal costs incurred to recover funds from FF Pty Ltd. The affidavit of 5 May 2025 had not been filed or served on the Applicant, and I stood down to allow him time to consider its contents.
2. On resuming the hearing, the Applicant did not oppose the amended affidavit being read in evidence, nor did he oppose the Court receiving the invoices.
3. I accepted the Respondent's documents into evidence as follows:
   • Affidavit of the Respondent amended 5 May 2025 ("amended affidavit") (Exhibit R1);
   • Invoice #...25 and Trust Statement of Account for Account Reference #...24, both from QQ Law Firm and dated 25 July 2024 (Exhibit R2);
   • Tax Invoice #...24 from QQ Law Firm dated 25 July 2024 (Exhibit R3); and
   • Invoice Itemisation for Invoice #...58 from RR Law Firm (Exhibit R4).
4. The Respondent made oral submissions to the effect that no interest should be paid to the Applicant because of his conduct described at [5] and [11] of her amended affidavit. Further, she submitted that she had properly accounted for funds recovered from FF Pty Ltd and she was not liable to pay anything further pursuant to Order 11 of the final orders. She also referred to an order for costs made in her favour against the Applicant, but it was unclear if that order remained unsatisfied.

1. The Respondent did not dispute late payment of the sum due pursuant to Order 2 of the final orders. However, she seems to claim that the delay was 57 days rather than 59 and that the Applicant's conduct excused her from paying interest.[2]
2. I have some sympathy for the Respondent's submission that the Applicant was uncooperative or possibly obstructive by refusing, during the substantive property proceedings, to refinance the mortgages held jointly by the parties. However, such conduct was not related to or causative of the delay in paying the adjustment sum once the final orders were made.
3. The Respondent says that she applied her best endeavours to refinance the properties and informed the Applicant of in-principle approval, but that she effectively only had 37 days to comply with Order 2 of the final orders, considering Christmas holiday periods and the usual banking and refinancing timeframes.
4. I accept that the interruption of usual business hours and timelines due to the Christmas and New Year holiday period likely slowed down processing of her refinancing application. I find that the Respondent made all genuine and reasonable efforts in relation securing finance to satisfy her obligation to discharge the mortgage(s) referred to in Order 1 of the final orders and then paying the adjustment sum as required by Order 2 of the final orders.
5. By the time the parties were implementing the final orders they were self-represented, and the level of conflict and lack of cooperation between the parties evidenced by the amended affidavit of the Respondent in hindsight likely meant that a 60-day period for payment of the adjustment sum was not a realistic timeframe.
6. However, the parties were each legally represented at the time the draft orders were presented to the parties at judgment delivery, and they were invited to make submissions about the draft orders which expressed the 60-day timeframe. The Respondent's solicitor did not make a submission for an alternate timeframe and neither party opposed the 60-day timeframe.
7. I expressly reject the submission of the Applicant that his co-operation was not required to refinance the loans or to discharge the mortgage relating to the parties' properties at Town P in Tasmania because the titles were not in his name. As he admitted at the hearing, he was a joint mortgagor, and I take judicial notice that at very least his consent and authority to discharge the existing mortgage was required. Indeed, I infer from the content of Annexure K of the Respondent's amended affidavit that he signed and returned such authority around 12 December 2024.
8. Although I urged the parties to end their enforcement dispute upon payment of the adjustment sum, which I am satisfied has now been paid by the Respondent, the Applicant is intent on pursuing interest due pursuant to the final orders.
9. I am obliged to follow established law and legal principle in the circumstances of this case. It is uncontroversially established that once a Court makes final orders, the general inherent power to vary those orders is limited to machinery issues and does not include a power to extend time for compliance with an order for the payment of money where the orders provide that in default of payment, a property is to be sold, which applies in this case.
10. There is one exception to the principle referred to at [21] of these reasons. That is if a Court is persuaded to make an order varying the final orders on application pursuant to s 79A(1)(c) or s 90SN of the Family Law Act 1975 (Cth) ("the Act") in the case of married and de facto parties respectively.[3] The parties to these proceedings were in a de facto relationship and so s 90SN of the Act is the appropriate provision.
11. There is no application before the Court pursuant to s 90SN and the order made on 26 February 2025 extending time to 28 February 2025 for payment was made because the Applicant agreed to such an order. However, he did not agree to abandon his entitlement to interest on the adjustment sum.
12. The evidence of the Respondent at [5] and [18] of her amended affidavit tends to raise an argument that the Court ought to vary the final orders to provide a longer time for payment of the adjustment sum on the grounds of s 90SN(1)(b) of the Act. Namely, that because of the need to refinance and the intervening Christmas and New Year holidays it was impracticable to have obtained the necessary refinancing, despite her best efforts.
13. Section 90SN(1)(b) of the Act states:

(1) If, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, the court is satisfied that:

...

(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; ...

...

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside.

1. The meaning of impracticability for the purposes of s 90SN(1)(b) was usefully summarised by Beckhouse J in Hsu & Lau [2024] FedCFamC2F 1165 at [57] to [61] as follows:

1. "Impracticability" in s 90SN(1)(b) of the Act may concern "the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to" (La Rocca & La Rocca [1991] FamCA 97; (1991) FLC 92-222 at 78,538). 2. But "impracticability" has been held to be something less than an impossibility. In Rohde & Rohde [1984] FamCA 41; (1984) FLC 91-592 ("Rohde"), Gee J observed that an order may be "impracticable" because it is "unmanageable" and with regard to "impracticability" in s 79A(1)(b) Gee J states at 79,768 that:

(a) It is not enough that circumstances have arisen since the order was made which make it unjust for the order or part of the order to be carried out; ... > > (b) The word "impracticable" means, gleaning a definition from the Shorter Oxford Dictionary, "not practicable"; "that cannot be carried out or done"; "practically impossible"; "unmanageable'"; "intractable". > > (c) "'Impracticability' is a conception different from that of 'impossibility'; the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice"... > > (d) Provided that more than one circumstance exists, and that the circumstances [arose since the orders], it does not matter what the circumstances are or by whom they are brought about.

(Emphasis in original; citations omitted)

1. As a concept, impracticability "involved something more than making it more difficult but less than proof that it was impossible to comply with the orders" (Guild & Stasiuk [2020] FamCA 348 at [430] citing Rohde).
2. In Cawthorn & Cawthorn (1998) FLC 92-805 ("Cawthorn") the Full Court said at 85,059:

My own view is that the concept of impracticability, as referred to in this section, is akin to the application of the doctrine of frustration in contractual matters. What the Parliament is concerned with and what ought to be concerning the Court is the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to.

1. The appropriate application of s 90SN(1)(b) here requires asking whether circumstances have arisen which make it impracticable to carry out the orders, and whether those circumstances could not reasonably have been contemplated.

1. In view of the established principles referred to above, even if the Respondent had expressly made an application pursuant to s 90SN of the Act to vary the time for payment of the adjustment sum on the grounds she relied upon, it would have necessarily failed. That is because at the time the orders were made, it was foreseeable that the Christmas/New Year period closures fell during the last part of the 60 days provided in the draft orders. Further, the Respondent has not provided probative evidence that it was impossible to secure refinancing within 60 days specified in the final orders. Instead, she has merely made this assertion.
2. Further, the Respondent's own evidence demonstrates that the Applicant had authorised the discharge of the mortgage around 12 December 2024, well within the time required for the payment.
3. As there is no application before the Court to vary the final orders and if such application had been made, it would fail, the Applicant is entitled to receive from the Respondent interest on the delayed payment of the adjustment sum. The final order provided that payment of the adjustment sum was to be within 60 days, namely by no later than 29 December 2024. The Applicant stated that the adjustment sum was paid on 28 February 2025.[4] The Respondent claimed that she had paid the adjustment sum 57 days late, which would have been on 26 February 2025. This was the day of the parties' appearance before the court referred to at [3] of these reasons. When the Respondent appeared in court, she stated she had not yet paid the adjustment sum but asserted she would do so immediately. I have no admissible evidence of when and how she in fact subsequently made the payment. In these circumstances, I prefer the evidence of the Applicant that he received the adjustment sum on 28 February 2025, which seems more likely allowing for known bank processing times. Accordingly, I find that the period of delay was 59 days and interest is payable by the Respondent in the sum of $3,948.28, being 10.35 per cent per annum interest on $236,000 for 59 days at the applicable daily rate.[5]

Amounts owing pursuant to Order 11 of the Final Orders

1. The Applicant disputed the amounts the Respondent had apparently deducted from the FF Pty Ltd deposit, purportedly for payment of reasonable legal expenses in accordance with Order 11 of the final orders. The deductions were represented to the Applicant by way of an invoice from the Respondent, which is Annexure A of the Applicant's affidavit filed 21 May 2025. He stated that the deductions were not for legal costs and that Order 11 of the final order did not allow for the Respondent's time and effort being a deductable sum.
2. After exploring the content and meaning of the invoice at Annexure A with the Respondent, I was informed without challenge that it was an invoice she had created through accounting software she uses in the operation of her business, which is why the invoice bears the header of that business. Further, she stated that the invoice:

(a) Reflects her work and efforts in recovering the FF Pty Ltd deposit and dealing with FF Pty Ltd's lawyer (Items 1 and 2);

(b) Fees paid during the relationship to Mr PP, a lawyer, to assist with a caveat on the FF Pty Ltd property to secure recovery of the FF Pty Ltd deposit (Item 3);

(c) Fees incurred and paid to RR Law Firm in seeking recovery of the FF Pty Ltd deposit (Item 4); and

(d) Legal fees paid to QQ Law Firm for advice about lodging a caveat and other issues related to the recovery of the FF Pty Ltd deposit (Item 5).

1. The evidence before the Court demonstrates that the parties were agreed about the following facts during the hearing before me:

(a) The full sum of $50,000 was recovered from FF Pty Ltd by the Respondent in March 2025;

(b) Mr PP was engaged by the parties in respect of the dispute with FF Pty Ltd, he had lodged the caveat on the title of the FF Pty Ltd property, and was paid fees for that work during the relationship; and

(c) The Applicant did not dispute the Respondent's claim that the sum of Mr PP's fees was $1,500.

1. After I drew the Applicant's attention to the description of work in the QQ Law Firm invoices referencing caveats and a title search,[6] he conceded that part of the costs were within the description of reasonable legal costs in respect of the caveat and dispute with FF Pty Ltd. This concession related to $1,650.11, which is the total of Exhibit R2.
2. Noting the QQ Law Firm invoices before the Court and the Applicant's concession at [33] of these reasons, I am satisfied that $1,650.11 of the fees paid to QQ Law Firm are reasonable legal costs contemplated by Order 11 of the final orders as a deduction from any part of the deposit recovered.
3. However, I am not satisfied that the other legal fees paid to QQ Law Firm,[7] fall within the description of a permissible deduction contemplated by Order 11 of the final orders because the description of the work in the invoice is unclear and suggests that it relates to another legal issue. Doing the best I can with the non-contentious evidence before the Court, I find that $1,650.11 of the monies paid to QQ Law Firm is a permissible deduction from the recovered FF Pty Ltd deposit pursuant to Order 11 of the final orders.
4. The Applicant admitted that Mr PP was engaged during the relationship to assist with the recovery of the FF Pty Ltd deposit by initially placing a caveat on the title of the FF Pty Ltd property. This is clear also from Annexure O of the Respondent's amended affidavit.
5. Mr PP was an admitted legal practitioner, and I am satisfied that the $1,500 paid to him is a proper deduction from the recovered deposit within the meaning of Order 11. The fact that Mr PP was paid during the relationship as the Applicant submitted does not exclude his fees being a deduction in accordance with the terms of the Order 11 of the final orders. That is because the order does not state that only reasonable legal fees incurred during certain periods were to be deducted.
6. The items claimed as legal fees with RR Law Firm relate to work and advice provided by Mr SS, the Respondent's lawyer in the substantive property proceedings. While some descriptions of work in the RR Law Firm invoice can be understood to relate to recovery of the FF Pty Ltd deposit,[8] others cannot. Instead, further invoiced items appear to relate to solicitor-client costs between Mr SS and the Respondent concerning the property adjustment proceedings.
7. I am only satisfied that Mr SS did the following work in relation to recovery of the deposit from FF Pty Ltd and so only those are permissible deductions from the deposit recovered:

Attending file to draw and settle detailed letter to Director of [FF Pty Ltd] regarding monies owed and actions required regarding Town P properties

Telephone call to client on 9 August 2024 regarding Tas Collection Agency matter, contravention, [FF Pty Ltd], Costs determination before FCFCoA and our costs

Attending file to review email from legal representation for [FF Pty Ltd] and respond regarding debt owed

Attending file to review email from client regarding placing of caveat over [FF Pty Ltd] properties

Attending to draw and settle letter to legal representation for FF Pty Ltd regarding update to sale of properties and payment & revert to client via email

1. Although the fees outlined at [39] of these reasons were incurred prior to the final orders being made, they are within the meaning of reasonable legal fees in Order 11 of the final orders, which is not expressed to be limited to legal fees incurred during particular periods.
2. I do not accept that the time and effort expended by the Respondent personally towards recovery of the FF Pty Ltd deposit is expressly or by implication within the terms of what can be deducted from the sum recovered pursuant to Order 11 of the final orders. She is not a lawyer and is unable to charge or recover legal fees.
3. In total, the reasonable legal expenses properly deductable pursuant to Order 11 of the final orders are:

1. As the reasonable legal fees deductable from the FF Pty Ltd deposit are $3,780.11 and the Applicant only received $17,251.50 on 5 March 2025, a further amount of $5,858.45 is due and payable to him by the Respondent. This figure is arrived at in accordance with the obligations created by Order 11 of the final order, and is calculated as follows:

1. There will be orders for the Respondent to pay the Applicant $3,948.28 for interest on the adjustment sum and $5,858.45 pursuant to Order 11 of the final orders. I will hear from the Respondent about the timeframe she seeks to pay these sums. I will also need the parties to clarify if the costs order made in favour of the Respondent has been satisfied and if not, I consider it necessary to offset the amounts owed by each party to the other. This will ensure the finalisation of the disputes between the parties.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

[1] Rule 1.31 of the Rules; Order 1 made 27 July 2025.

[2] Email dated 4 March 2025, attached to the Respondent's amended affidavit dated 5 May 2025 at Annexure K.

[3] Monticone & Monticone [1989] FamCA 92 at [18].

[4] Affidavit of the Applicant filed 22 April 2025 at [4].

[5] The applicable daily rate being $66.92 based on 365 days in a typical year.