Aitken & Aitken (No 8)

Case [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…

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Aitken & Aitken (No 8) [2025] FedCFamC1F 49
Case
[2025] FedCFamC1F 49
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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