Aitken & Aitken (No 8) - [2025] FedCFamC1F 49

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aitken & Aitken (No 8) [2025] FedCFamC1F 49

File number(s): SYC 5021 of 2019

Judgment of: HARPER J

Date of judgment: 5 February 2025

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Enforcement of final orders made by consent – Where husband required to make payment to the wife of $22,916,124 – Where husband proposed orders to enforce final orders to enable payment to the wife – Whether the husband’s proposed orders are “machinery” orders to implement final orders or variations affecting the substantive rights of the wife – Final orders made by consent are to be construed objectively in their entirety and subjective intentions of the parties are not relevant – Whether the Court has power to make the orders proposed by the husband or if application pursuant to s 79A of the Family Law Act1975 (Cth) (“the Act”) is necessary – Where parties could vary final consent orders by consent pursuant to subsection 79A(1A) of the Act – Where receivers appointed by the wife pursuant to final orders – Remuneration of receivers yet to be determined.

Legislation:
Corporations Act 2001 (Cth) ss 260A, 260B

Family Law Act 1975 (Cth) s 79A

Cases cited:
Bray & Bray (1988) FLC 91-968; [1988] FamCA 22

Fazil & Fazil [2024] FedCFamC1A 54

Goldsmith & Stinson (No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27

Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68

Nagel & Clay [2021] FamCA 358

Division: Division 1 First Instance

Number of paragraphs: 38

Date of hearing: 23 January 2025

Place: Sydney

Counsel for the Applicant: Mr Dura SC

Solicitor for the Applicant: Mills Oakley

Counsel for the First Respondent: Mr Kearney SC with Mr Springthorpe

Solicitor for the First Respondent: Nolan Lawyers

Counsel for the Second Respondent: Mr Anderson

Solicitor for the Second Respondent: Mangioni Biggs + Co
ORDERS

SYC 5021 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR AITKEN

Applicant

AND:
MS AITKEN

First Respondent

MR VIK AND MR SCIARRA OF AS PTY LTD

Second Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 FEBRUARY 2025

THE COURT ORDERS THAT:
1.Paragraphs 1, 4 and 9 of the Amended Application – Enforcement filed on 18 November 2024 by the husband be dismissed.
2.The Amended Application – Enforcement filed on 18 November 2024 be otherwise stood over to 2025 for mention at 9.30 am on 26 March 2025.
3.The costs to date of the Amended Application – Enforcement filed on 18 November 2024 be reserved.

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…

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.

Continue reading Aitken & Aitken (No 8)

Details

AGLC: Aitken & Aitken (No 8) [2025] FedCFamC1F 49
Case: [2025] FedCFamC1F 49
Decision Date: 5 February 2025

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by Mr Aitken to enforce final orders made by consent in his divorce proceedings. The final orders required Mr Aitken to make a lump sum payment of $22,916,124 to Ms Aitken. Mr Aitken proposed orders to facilitate this payment, which included appointing receivers to manage certain assets. Ms Aitken opposed these proposed orders, arguing that they amounted to variations of the final consent orders rather than mere machinery orders to implement them. The central issue before the Court was whether the proposed orders were machinery orders or substantive variations, and whether the Court had the authority to make such orders or if an application under section 79A of the Family Law Act 1975 (Cth) was necessary.

The Court found that the final orders made by consent were to be construed objectively, without regard to the subjective intentions of the parties. The Court held that the proposed orders were substantive variations rather than machinery orders, as they would affect the substantive rights of Ms Aitken. The Court concluded that it did not have the power to make the proposed orders without an application under section 79A of the Act. The Court noted that the parties could vary the final consent orders by consent pursuant to subsection 79A(1A) of the Act. The Court also observed that receivers had been appointed by Ms Aitken pursuant to the final orders, and their remuneration had yet to be determined.

The Court dismissed paragraphs 1, 4, and 9 of Mr Aitken’s amended application for enforcement, which sought to implement the proposed orders. The Court stood over the remainder of the application to allow the parties to explore the possibility of varying the final orders by consent. The costs of the application were reserved.

Orders

Orders of the court

SYC 5021 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR AITKEN

Applicant

AND:

MS AITKEN

First Respondent

MR VIK AND MR SCIARRA OF AS PTY LTD

Second Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 FEBRUARY 2025

THE COURT ORDERS THAT:

1. Paragraphs 1, 4 and 9 of the Amended Application – Enforcement filed on 18 November 2024 by the husband be dismissed.

2. The Amended Application – Enforcement filed on 18 November 2024 be otherwise stood over to 2025 for mention at 9.30 am on 26 March 2025.

3. The costs to date of the Amended Application – Enforcement filed on 18 November 2024 be reserved.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 5021 of 2019
Judgment of:	HARPER J
Date of judgment:	5 February 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Enforcement of final orders made by consent – Where husband required to make payment to the wife of $22,916,124 – Where husband proposed orders to enforce final orders to enable payment to the wife – Whether the husband’s proposed orders are “machinery” orders to implement final orders or variations affecting the substantive rights of the wife – Final orders made by consent are to be construed objectively in their entirety and subjective intentions of the parties are not relevant – Whether the Court has power to make the orders proposed by the husband or if application pursuant to s 79A of the Family Law Act1975 (Cth) (“the Act”) is necessary – Where parties could vary final consent orders by consent pursuant to subsection 79A(1A) of the Act – Where receivers appointed by the wife pursuant to final orders – Remuneration of receivers yet to be determined.
Legislation:	Corporations Act 2001 (Cth) ss 260A, 260B Family Law Act 1975 (Cth) s 79A
Cases cited:	Bray & Bray (1988) FLC 91-968; [1988] FamCA 22 Fazil & Fazil [2024] FedCFamC1A 54 Goldsmith & Stinson (No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25 Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68 Nagel & Clay [2021] FamCA 358
Division:	Division 1 First Instance
Number of paragraphs:	38
Date of hearing:	23 January 2025
Place:	Sydney
Counsel for the Applicant:	Mr Dura SC
Solicitor for the Applicant:	Mills Oakley
Counsel for the First Respondent:	Mr Kearney SC with Mr Springthorpe
Solicitor for the First Respondent:	Nolan Lawyers
Counsel for the Second Respondent:	Mr Anderson
Solicitor for the Second Respondent:	Mangioni Biggs + Co

SYC 5021 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR AITKEN Applicant
AND:	MS AITKEN First Respondent MR VIK AND MR SCIARRA OF AS PTY LTD Second Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	5 FEBRUARY 2025