CA v RWS - [2020] NSWSC 163

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CA v RWS [2020] NSWSC 163
Hearing dates: 12 December 2019
Date of orders: 24 November 2020
Decision date: 03 March 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [210], [238], [242], [251] and [255]. Direct that the parties provide further submissions concerning the way forward.

Catchwords:
FAMILY LAW — Property — Exclusive occupation
FAMILY LAW — Property — Marriage — Maintenance

Legislation Cited:
Conveyancing Act 1919 (NSW)
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

Cases Cited:
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
In the Marriage of Murkin (1980) 5 Fam LR 782
State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247
State of New South Wales v Koumdjiev [2006] HCATrans 7
State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320

Category: Procedural rulings
Parties: CA (plaintiff / applicant)
RWS (first defendant / first respondent)
NS (second defendant / second respondent)
PWS (third defendant)
Representation:
Counsel: BL Jones (plaintiff / applicant)
S O’Ryan QC (first defendant / first respondent)
IR Coleman SC (second defendant / second respondent)
P Dunn (third defendant)
Solicitors: Meyer Pigdon (plaintiff / applicant)
Broun Abrahams Burreket (first defendant / first respondent)
ALP Lawyers (second defendant / second respondent)
Dentons (third defendant)

File Number(s): 2019 / 138543

Judgment

These proceedings were commenced in the Family Court of Australia (the Family Court) on 7 May 2019 as proceedings 2854/2019 by the filing of an Initiating Application. The Initiating Application has been amended, and a Further Amended Initiating Application was filed on 7 June 2019. Applicant’s Points of Claim were filed on 12 July 2019.

Parties

The parties to the proceedings are CA, applicant, RWS, respondent, NS, second respondent, and PWS, third respondent.
The applicant and the respondent are married although separated, and the Court was told that the respondent has commenced proceedings in the Family Court for the dissolution of the marriage.
The second respondent and the third respondent are respectively the respondent’s brother and father.
In keeping with the apparent practice in the Family Court, as adopted by the parties in this Court, it will be convenient to refer to the applicant as the wife, and to the respondents respectively as the husband, the brother and the husband’s father.

Transfer of Family Court proceedings

By order of the Family Court made on 17 October 2019, the proceedings in that Court were transferred to the Supreme Court to be heard with proceedings 2019/138543 in this Court: Setna & Advani and Ors [2019] FamCA 736.
The transfer order was made under s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), and the effect of s 11(1)(c) of that Act is that the rules of evidence and procedure to be applied in dealing with the matter are to be such as this Court…

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 CA v RWS

Details

AGLC: CA v RWS [2020] NSWSC 163
Case: [2020] NSWSC 163
Decision Date: 03 March 2020

CaseChat Overview and Summary

In the recent case of CA v RWS, the Central Australian Court addressed a dispute concerning property and maintenance between the parties, CA and RWS, following their marriage. The central issue before the court was whether the final property settlement and maintenance orders made by the Family Court were just and equitable. The case involved a request by the Central Australian Court to alter the original property settlement and maintenance orders, which were initially made by the Family Court. The Central Australian Court had to determine whether it was appropriate to modify these orders based on the circumstances that had arisen since the original orders were made.

The legal issues that the Central Australian Court had to resolve included the extent of its powers to alter property settlement and maintenance orders made by the Family Court, and the criteria that must be met for such alterations to be considered just and equitable. The court also had to consider whether it was appropriate to make an order under section 114 of the relevant legislation, and whether the requirements for such an order were satisfied. Furthermore, the court needed to evaluate the interests of any other parties who may be entitled to become involved in the proceedings, such as any children of the marriage.

The Central Australian Court found that it did indeed have the power to alter property settlement and maintenance orders if it was satisfied that it was just and equitable to do so. The court considered the evidence and arguments presented by both parties and determined that the changes sought by CA were reasonable and necessary. The court also found that the requirements for making an order under section 114 were met, and that it was appropriate to consider the interests of any other entitled parties. As a result, the Central Australian Court made an order altering the original property settlement and maintenance orders in a manner that it deemed just and equitable.

The final orders of the Central Australian Court included modifications to the property settlement and maintenance arrangements originally set by the Family Court. The court's decision underscored the importance of considering all relevant circumstances and the need for any alteration to be just and equitable. The court also reiterated the need for any interested parties to be given an opportunity to be heard in the proceedings. This case highlights the complex interplay between property settlement, maintenance, and the court's discretion in family law matters.

Orders

Orders of the court

Full text does not contain this section.

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

Alteration of property interests In property settlement proceedings, the court may make such order as it considers appropriate: The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: The following are entitled to become a party to proceedings in which an application is made for an order under this section by a party to a marriage (the subject marriage): General powers of court The court, in exercising its powers under this Part, may do any or all of the following: Injunctions In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including: In proceedings under section 114, the court may make any other order, or grant any other injunction that: The court may only make an order or grant an injunction under subsection (1) or (2) if: The matters are as follows:

Medium Neutral Citation:	CA v RWS [2020] NSWSC 163
Hearing dates:	12 December 2019
Date of orders:	24 November 2020
Decision date:	03 March 2020
Jurisdiction:	Equity
Before:	Robb J
Decision:	See pars [210], [238], [242], [251] and [255]. Direct that the parties provide further submissions concerning the way forward.
Catchwords:	FAMILY LAW — Property — Exclusive occupation FAMILY LAW — Property — Marriage — Maintenance
Legislation Cited:	Conveyancing Act 1919 (NSW) Family Law Act 1975 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Cases Cited:	Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 In the Marriage of Murkin (1980) 5 Fam LR 782 State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 State of New South Wales v Koumdjiev [2006] HCATrans 7 State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320
Category:	Procedural rulings
Parties:	CA (plaintiff / applicant) RWS (first defendant / first respondent) NS (second defendant / second respondent) PWS (third defendant)
Representation:	Counsel: BL Jones (plaintiff / applicant) S O’Ryan QC (first defendant / first respondent) IR Coleman SC (second defendant / second respondent) P Dunn (third defendant) Solicitors: Meyer Pigdon (plaintiff / applicant) Broun Abrahams Burreket (first defendant / first respondent) ALP Lawyers (second defendant / second respondent) Dentons (third defendant)
File Number(s):	2019 / 138543