Legal Research
Cases
Apoda & Apoda

Apoda & Apoda

Case [2013] FamCA 265 12 March 2013

Type to search within this case.

FAMILY COURT OF AUSTRALIA

APODA & APODA AND ANOR

[2013] FamCA 265

FAMILY LAW – PROPERTY SETTLEMENT – interpretation of Court orders – where orders were made by consent – where the wife seeks enforcement of an order – where the parties’ interpretations of the order differ.
FAMILY LAW – PRACTICE & PROCEDURE – interpretation of Court orders – whether there must be ambiguity in an order for recourse to be had to the reasons and extrinsic material in its interpretation – whether evidence of “surrounding circumstances” can be considered.

Family Law Act 1975 (Cth)

Athens and Anor v Randwick City Council (2005) 64 NSWLR 68
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Hughes and Hughes [2012] FamCA 198
Kirkpatrick v Kotis (2004) 62 NSWLR 567
McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Rand v Rand (2010) 43 FamLR 570
Re Tower Software Engineering Pty Ltd; McCann and Ors v Pendant Software Pty Ltd and Anor (2006) 235 ALR 566
Yates Property Corporation Pty Ltd v Boland and Ors (1998) 89 FCR 78

APPLICANT:

Ms I Apoda

RESPONDENT:

2^nd RESPONDENT

Mr Apoda

Ms L Apoda

FILE NUMBER:

SYC

5598

2011

DATE DELIVERED:

12 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

28 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Friedlander

ADVOCATE FOR THE 2^ND RESPONDENT:

Ms Field

Orders

The application of the wife filed on 31 July 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Apoda & Apoda and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5598 of 2011

Ms I Apoda

Applicant

And

Mr Apoda and Ms L Apoda

Respondents

REASONS FOR JUDGMENT

Introduction

On 31 July 2012, Ms I Apoda, (“the wife”) filed an Application in a Case. That application is opposed by the First Respondent, Mr Apoda, (“the husband”).
The wife through her application seeks enforcement of an order (“Order 16”) made in this Court on 2 December 2011. Through the enforcement of Order 16, the wife seeks that the sum of $24,133.38 be paid to her from a fund of money held following the sale of a property at … B Street, Suburb S, NSW, (“the Suburb S property”). She further seeks the payment of interest on that sum.
The husband seeks an order that the wife’s application be dismissed.
The husband and wife’s daughter, Ms L Apoda, (“the daughter”), was joined as the Second Respondent in both the primary proceedings and in the wife’s present application.
The dispute between the parties arises from a difference between them in relation to the interpretation of Order 16. Order 16 forms part of a suite of orders made by consent (“the subject orders”)…

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 Apoda & Apoda

Details

AGLC: APODA & APODA AND ANOR [2013] FamCA 265
Case: [2013] FamCA 265
Decision Date: 12 March 2013

CaseChat Overview and Summary

In the matter of *Apoda & Apoda*, heard before Le Poer Trench J, the wife sought to appeal an interim property settlement order made by the Family Court of Australia. The dispute concerned the division of assets between the parties following their separation.

The primary legal issue before the court was whether the wife had established sufficient grounds to warrant an appeal against the interim property settlement orders. This involved an assessment of whether the original orders were demonstrably unjust or erroneous, and whether the wife had presented a compelling case for intervention by the appellate court at that stage.

Le Poer Trench J dismissed the wife's application, finding that she had failed to demonstrate any error in the interim orders that would justify an appeal. The court applied the principles governing appeals against interim family law orders, which generally require a high threshold to be met before an appeal will be entertained, particularly when the orders are interlocutory and subject to final determination at a later hearing. The judge concluded that the wife had not met this threshold.

Consequently, the application of the wife filed on 31 July 2012 was dismissed.

Orders

Orders of the court

The application of the wife filed on 31 July 2012 is dismissed.

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.

Actions

Citations

APODA & APODA AND ANOR [2013] FamCA 265

Most Recent Citation

Suiter & Suiter [2016] FamCAFC 72

Cases Citing This Decision

Baros & Baros [2021] FamCA 534
Citation 1 (Para 31)

…s of the parties, to resolve ambiguity in a court order: Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68 at 79,671; Apoda & Apoda [2013] FamCA 265 at [35] - [41]; Suiter & Suiter [2016] FamCAFC 72 at [28]; Farina & Lofts [2019] FamCA 228 at [23].…
Nagel & Clay [2021] FamCA 358
Citation 2 (Para 9)

…In Apoda & Apoda [2013] FamCA 265 at [35] - [41] Le Poer Trench J concluded that in construing final consent orders the Court should undertake a three step process, namely, determining whether there is ambiguity, identify surrounding circumstances, other than the subjective intentions of the parties and only so far…
DEMENY & OGDEN [2021] FCCA 543
Citation 3 (Para 1)

…when drafting the orders, the final order no longer achieves that mutually desired outcome. [7] [2014] FamCA 266. [8] Apoda & Apoda and Anor [2013] FamCA 265 at 42. [9] Transcript of hearing before Judge Mead dated12 May 2014 , page 2, line 18. [10] Transcript of hearing before Judge Mead dated 12 May 2014, page 3…
Arthurman & Arthurman [2019] FamCAFC 214
Citation 4 (Para 2)

…In his written submissions, the husband quotes the judgment of Le Poer Trench J in Apoda & Apoda [2013] FamCA 265 (“ Apoda ”) at [46], where his Honour set out the approach to interpreting orders as follows: a) Determine if there is any ambiguity created by the orders. b) Whether there be ambiguity or not , identif…
Sartin and Sartin and Anor (No.3) [2017] FCCA 2588
Citation 5 (Para 12)

…The husband made reference to Suiter & Suiter [2016] FamCAFC 72 at [21] and Apoda & Apoda [2013] FamCA 265 at [35] to [41]. In my view these authorities, together with Rand v Rand (2010) 43 FamLR 570 at [105]-[106] and Pawley & Pawley (No.2) (supra) at [34], make clear it would be impermissible to approach construc…
Suiter & Suiter [2016] FamCAFC 72
Citation 6 (Para 4)

…hich each party has interpreted the consent orders”, and in this context she referred to a decision of Le Poer Trench J in Apoda & Apoda and Anor [2013] FamCA 265, where his Honour had “considered the law in relation to the interpretation of orders made by consent where the parties’ interpretations of the orders di…
SUITER and SUITER [2014] FCWA 40
Citation 7

…Apoda & Apoda and Anor [2013] FamCA 265 Clowes v Bentley Proprietary Limited [1970] WAR 24 Kirkpatrick v Kotis (2004) 62 NSWLR 567 W Thomas & Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1965) 115 CLR 58…

See all citing cases →

Cases Cited

Hughes & Hughes [2012] FamCA 198
Citation 1 (Para 2)

…ject orders are not part of the subject orders but rather an aid to the orders. The wife relied upon the decision of Macmillan J in Hughes and Hughes [2012] FamCA 198. In that case, Her Honour at [15]-[17] set out under the heading “Legal Principles” the following: 15. I was referred to a number of authorities by M…
Athens v Randwick City Council [2005] NSWCA 317
Citation 2 (Para 1)

…In Athens and Anor v Randwick City Council (2005) 64 NSWLR 68 (“ Athens ”) at [131]–[133], Santow J discussed two lines of authority that have emerged with respect to whether or not reasons for judgment and extrinsic material should be consulted when interpreting the orders of a Court. His Honour described these two approaches as “ representing…
Kirkpatrick v Kotis [2005] NSWSC 178
Citation 3 (Para 1)

…With respect to consent orders in particular, in Kirkpatrick v Kotis (2004) 62 NSWLR 567 (“ Kirkpatrick ”) Campbell J discussed by reference to a string of authorities the method in which such orders should be construed. His Honour at [45] concluded that: authority and principle both favour the view that surrounding c…
Kirkpatrick v Kotis [2004] NSWSC 1265
Citation 4 (Para 1)

…With respect to consent orders in particular, in Kirkpatrick v Kotis (2004) 62 NSWLR 567 (“ Kirkpatrick ”) Campbell J discussed by reference to a string of authorities the method in which such orders should be construed. His Honour at [45] concluded that: authority and principle both favour the view that surrounding circumst…
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35
Citation 5 (Para 2)

…ty is no longer a pre-requisite for reference to extrinsic material when construing the terms of a contract: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451.…
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629
Citation 6 (Para 4)

…570 at [105]-[106], Bryant CJ, Coleman and Boland JJ stated the following: In Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 ; [2003] FCA 629, Allsop J was concerned with an order which was ambiguous. His Honour referred to the judgment of Drummond J in Yates Property Corp Pty Ltd v Boland (199…
Yates Property Corp Pty Ltd v Boland [1999] FCA 397
Citation 7 (Para 4)

…003) 129 FCR 558 ; [2003] FCA 629, Allsop J was concerned with an order which was ambiguous. His Honour referred to the judgment of Drummond J in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 in which Drummond J said: … [i]t is impermissible, … as well as being quite unrealistic, to attempt to read, that is, to understand, an order i…
Yates Property Corporation Pty Ltd v Boland [1998] FCA 1605
Citation 8 (Para 3)

…s for judgment and extrinsic materials, whether or not the order is framed in ambiguous language: Yates Property Corporation Pty Ltd v Boland and Ors (1998) 89 FCR 78 (“ Yates ”) per Drummond, Sundberg and Finkelstein JJ; applied in Re Tower Software Engineering Pty Ltd; McCann and Ors v Pendant Software Pty Ltd an…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24
Citation 9 (Para 1)

…used to construe a contract, in accordance with the principles laid down by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) CLR 337 at 352.…
[1980] AC 546 [1980] AC 546
Citation 10 (Para 2)

…ent orders, and the authority for that proposition is found in the opinion of the Privy Council on appeal from Hong Kong in de Lasala v de Lasala [1980] AC 546 at 560, where Lord Diplock said:- “Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being ma…
Codelfa Construction Pty Ltd v State Rail Authority (Nsw)
Citation 11 (Para 2)

…This view accorded with the well-known approach to the interpretation of contracts enunciated by the High Court in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 (“ Codelfa ”) per Mason J at 351–352. On that approach, reference to extrinsic evidence would only be made where a contractual term was unclear or ambiguous. More recently,…

Legislation Cited

Family Law Act 1975 (Cth)
1 mention