Aitken & Aitken (No 6) - [2022] FedCFamC1F 996

Federal Circuit and Family Court of Australia
(DIVISION 1)
Aitken & Aitken (No 6) [2022] FedCFamC1F 996

File number(s): SYC 5021 of 2019

Judgment of: WILSON J

Date of judgment: 14 December 2022

Catchwords:
FAMILY LAW – PROPERTY – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – application for enforcement of final orders – applicant sought third party debt notice pursuant to r 11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – consideration of third party debt notice rules and application – no third party debt found – third party debt notice not applicable in this proceeding

FAMILY LAW – PROPERTY – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – consideration of s 106A of the Family Law Act – s 106A not engaged in this case because no mandatory obligation to execute documents existed – remedial orders made creating an obligation to execute documents which engage s 106A remedial measures

Legislation:
Family Law Act 1975 (Cth) ss 79 and 106A

Family Law Rules 2004 (Cth) r 20

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11

Cases cited:
Alexander v Ajax Insurance Co Ltd [1956] VLR 436

Salomon v Salomon & Co Ltd [1897] AC 22

Woodhurst & Rubbens (No 2) [2016] FamCA 786

Division: Division 1 First Instance

Number of paragraphs: 40

Date of last submission/s: 14 December 2022

Date of hearing: 8, 9 and 14 December 2022

Place: Melbourne

Counsel for the Applicant: Mr N. Ford

Solicitor for the Applicant: Nolan Lawyers

Counsel for the Respondent: Mr Stapleton on 14 December 2022

Solicitor for the Respondent: Avondale Lawyers
ORDERS

SYC 5021 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS AITKEN

Applicant

AND:
MR AITKEN

Respondent

order made by:

WILSON J

DATE OF ORDER:

14 DECEMBER 2022

THE COURT ORDERS THAT:
1.I direct that forthwith the husband must execute the resolution of directors annexed hereto and marked “A”.
2.If the husband fails, refuses or neglects to execute the resolution of directors in accordance with paragraph 1 of these orders, then by not earlier than midday on Friday 16 December 2022 I order that pursuant to s 106A of the Family Law Act a Registrar is empowered and directed to execute the resolution of directors on behalf of the husband forthwith on and from midday on Friday 16 December 2022.
3.At any time from noon on Tuesday 20 December 2022 the wife, in her capacity as a director of D Pty Ltd has authority to transfer to her own account or to such other account as she directs, the sum of $8,693,345.66 from –
(a)Westpac Banking Corporation term deposit account …11;
(b)Westpac Banking Corporation term deposit account …03; and
(c)Westpac Banking Corporation trading account …29.

so as to comply with paragraph 16 of my orders made in this proceeding dated 16 November 2022.
4.The wife is authorised to produce a copy of this order to Westpac Banking Corporation.
5.I direct that this order be drawn up by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FedCFamC1F 996
Decision Date

CaseChat Overview and Summary

The proceedings in Aitken & Aitken (No 6) involved a dispute between Ms. Aitken and Mr. Aitken, which had been ongoing in the Federal Circuit and Family Court of Australia. The case revolved around the enforcement of final orders related to property settlement and financial obligations. Ms. Aitken sought enforcement of these orders, specifically focusing on the execution of a resolution by Mr. Aitken to declare a dividend in favor of Ms. Aitken and the enforcement of a third-party debt notice to secure a financial payment. The legal issues centered on the interpretation and applicability of certain provisions in the Family Law Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, particularly concerning the enforcement of orders and the applicability of third-party debt notices.

The court examined whether the third-party debt notice procedure could be applied in this context, considering the specific language of the final orders and the definitions provided in the rules. It was noted that the final orders did not impose a direct obligation on D Pty Ltd to pay Ms. Aitken a specific sum, and therefore, the third-party debt notice was not applicable. Additionally, the court considered whether section 106A of the Family Law Act was engaged, which allows for the execution of deeds or instruments by a registrar if a party fails to comply with an order. The court found that no such order had been made that required Mr. Aitken to execute a specific deed or instrument, thus section 106A did not apply.

The court ultimately directed Mr. Aitken to execute a specific resolution to declare a dividend for Ms. Aitken and authorized Ms. Aitken to transfer funds from certain bank accounts to her own account, effective from noon on Tuesday, 20 December 2022. These orders were made to ensure compliance with the final orders and to address the financial obligations outlined therein.

Orders