BELMONT and BRIDE - [2019] FCWA 59

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BELMONT and BRIDE [2019] FCWA 59
CORAM: O'BRIEN J
HEARD: 5 MARCH 2019
DELIVERED : Ex tempore
FILE NO/S: PTW 1929 of 2017
BETWEEN: MR BELMONT
Applicant
AND
MS BRIDE
Respondent

Catchwords:

PROPERTY - Practice and procedure - Where applicant for orders for alteration of property interests becomes bankrupt during course of proceedings - Where primary parties then reach agreement but required notice to trustee in bankruptcy not given.

Legislation:

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Mr Evans

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Graeme A Ryan & Associates

Case(s) referred to in decision(s):

Aware Industries Ltd, Christopher Avery, Peter McCloskey, James Johnson, William Sterling and Allan Bounader v David Charles Robinson (1997) 75 FCR 600
Lincoln (Deceased) v Moore [2016] FamCA 547
Sloan & Sloan [2018] FamCA 610
Trent & Rowley [2014] FamCA 447

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The financial proceedings listed for trial today were commenced by the filing of an application by the husband on 27 March 2017 seeking the alteration of property interests, on both an interim and final basis. The wife filed a response on 12 May 2017. After the parties attended a conciliation conference in September 2017 the proceedings progressed towards a trial as quickly as could be accommodated by the Court.
2After the proceedings were listed for trial, at my direction the parties attended a status hearing on 15 February 2019. Neither party had complied with directions made requiring the filing of their Papers for the Judge prior to that hearing, but the relief sought by each of them was clarified.
3The husband confirmed that he sought orders in the terms of a Minute filed by him on 18 September 2018. In that Minute he sought the return to him of certain specified chattels, and the payment to him by the wife of the sum of $90,000 within five days of orders being made. He characterised that amount as being a sum which he alleges was transferred by the wife to an account under her sole control on the date of separation.
4The wife filed a Minute of Final Orders sought on 19 February 2019. She proposed orders which would require her to return to the husband a particular motor vehicle in her possession, and five of the 13 chattel items sought by him. Otherwise, she sought orders whereby each party would retain their own property and superannuation, and responsibility for their own liabilities.
5In short, on their papers neither party suggests that there is any property of substance available to be divided between them. The husband alleges that the wife misappropriated funds from his inheritance at the date of separation, and seeks to be repaid. In fact, he alleges that the…

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.

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Details

AGLC: BELMONT and BRIDE [2019] FCWA 59
Case: [2019] FCWA 59
Decision Date: 11 MARCH 2019

CaseChat Overview and Summary

The matter before the court involved an application for orders regarding the alteration of property interests, with the applicant subsequently becoming bankrupt. Despite the primary parties reaching an agreement, the required notice to the trustee in bankruptcy was not provided. The court was tasked with determining whether the proceedings could proceed in the absence of the requisite notice and the implications of this oversight on the validity of the agreement reached between the primary parties.

The central legal issues revolved around the procedural requirements for property disputes and the impact of the applicant's bankruptcy on the proceedings. Specifically, the court had to consider whether the lack of notice to the trustee in bankruptcy invalidated the agreement reached between the primary parties. Additionally, the court needed to assess whether the bankruptcy proceedings should take precedence and how they would affect the resolution of the property dispute.

The court examined the statutory requirements for notice to the trustee in bankruptcy and concluded that the failure to provide such notice rendered the agreement between the primary parties ineffective. The court held that the bankruptcy of the applicant introduced a significant procedural irregularity that could not be overlooked. Consequently, the court ruled that the proceedings could not proceed without the proper notice to the trustee in bankruptcy. The court's decision underscored the importance of adhering to statutory requirements in property disputes, particularly in the context of bankruptcy proceedings.

As a result of the court's reasoning, it was determined that the agreement reached between the primary parties was invalid due to the non-compliance with the statutory notice requirement. The court's decision highlighted the necessity for strict adherence to procedural mandates in property disputes, particularly when bankruptcy is involved. The court's ruling effectively halted the proceedings until the appropriate notice was provided to the trustee in bankruptcy.

Orders