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application to vary a spousal maintenance order – Where the order sought to be varied was made on a final basis and is no longer in force – No jurisdiction found – Where the wife then sought leave to amend the application so that the orders are sought under section 74 – Where the matter is under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
The Initiating Application filed on 14 July 2015 is dismissed.
The listings on 7 October 2015 and 23 November 2015 be vacated.
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.
The husband is to file and serve any application for costs, together with supporting material and the husband’s submissions, within 14 days.
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
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.”
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…
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- AGLC
- Atkins and Hunt (No 2) [2015] FamCA 707
- Case
- [2015] FamCA 707
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the wife should be granted leave to amend her initiating application to include an application for orders under section 74 of the *Family Law Act 1975* (Cth). This required the court to consider the nature of the proposed amendments and their impact on the existing proceedings.
McClelland J dismissed the wife's oral application for leave to amend the initiating application. The court also dismissed the initiating application itself and vacated the listings. The husband was ordered to file and serve any application for costs within 14 days, with the wife to file and serve any response within 28 days thereafter.
Orders
Orders of the court
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.
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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