Atkins and Hunt (No 2)

[2015] FamCA 707

FAMILY COURT OF AUSTRALIA

ATKINS & HUNT (NO. 2) [2015] FamCA 707

FAMILY LAW – PROPERTY – Whether the Court has jurisdiction under section 83 to hear the wife’s application to vary a spousal maintenance order – Where the order sought to be varied was made on a final basis and is no longer in force – No jurisdiction found – Where the wife then sought leave to amend the application so that the orders are sought under section 74 – Where the matter is under appeal and the trial judge dismissed the wife’s stay application - Leave to amend dismissed.

Family Law Act 1975 (Cth) ss 44, 80, 83

Taylor v Taylor (1979) FLC 90-674
In re VGM Holdings Limited [1941] 3 All ER 417
Cameron & Cole (1944) 68 CLR 571

APPLICANT: Ms Atkins

RESPONDENT: Mr Hunt

FILE NUMBER: SYC 425 of 2012

DATE DELIVERED: 21 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Paltos Milevski Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT: Sexton Family Law

Orders

1. The Initiating Application filed on 14 July 2015 is dismissed.

2. The listings on 7 October 2015 and 23 November 2015 be vacated.

3. The wife’s oral application for leave to amend the Initiating Application filed on 14 July 2015 to include an application for orders pursuant to section 74 of the Family Law Act 1975 (Cth) is dismissed.

4. The husband is to file and serve any application for costs, together with supporting material and the husband’s submissions, within 14 days.

5. The wife is to file and serve any response to the husband’s application for costs, together with any supporting material and submissions, within 28 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkins & Hunt (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 425 of 2012

Ms Atkins

Applicant

And

Mr Hunt

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, an Initiating Application was filed by the wife on 14 July 2015 for orders under section 83 of the Family Law Act1975 (Cth) (“the Act”) dealing with modification of spousal maintenance orders. Section 83(1)(f) of the Act provides that, “if there is in force an order (whether made before after the commencement of this Act) with respect to maintenance of a party to a marriage”, the Court has power to “… vary the order, so as to increase or decrease any amount ordered to paid or any other manner.” 

2. The orders sought to be varied by the wife’s application under section 83 were orders made by Aldridge J on 4 December 2014. In particular, Aldridge J ordered, in Order 6, that “upon completion of the sale of the [B Street] property”, which was a property owned…