FAMILY LAW – APPEAL – PROPERTY – Appeals from orders made by a judge of the Supreme Court of New South Wales – Where transfers of a property from the husband to the wife and property settlement consent orders made in the Family Court of Australia were obtained to affect the first respondent’s claim for payment of a debt owed to him by the husband – Where the transfers of the property were declared to be void pursuant to s 37A of the Conveyancing Act 1919 (NSW) – Where the property settlement consent orders made in the Family Court of Australia were set aside – Where the property is to be sold to satisfy the debt owed to the first respondent – Whether the primary judge should have made the make available order – Failure to disclose and notify creditors – Where the failure to disclose and notify the first respondent as a creditor was of such magnitude to justify setting aside the consent orders – Appeal dismissed.
FAMILY LAW – APPEAL – PROPERTY – Cross-claim for property settlement orders pursuant to s 79 or s 79A of the Family Law Act 1975 (Cth) – Where the primary judge did not err by finding that the husband’s debts should be paid before the property was divided between the husband and the wife – Where any adjustment based on contributions and s 75(2) considerations could not improve the wife’s position as against the husband because she was to receive 100 per cent of the net assets in Australia – Where seeking recovery of the debt overseas from the husband would impose another miscarriage of justice upon the first respondent – Appeal dismissed.
[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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AGLC
Cantrell & North and Anor [2020] FamCAFC 175
Case
[2020] FamCAFC 175
Decision Date
CaseChat Overview and Summary
In the case of Cantrell & North and Anor, the respondents appealed against orders made by the Supreme Court of New South Wales, which had nullified transfers of property from the husband to the wife and set aside consent orders for property settlement made in the Family Court of Australia. These actions were undertaken to prevent the first respondent from enforcing a debt owed by the husband. The court had determined that the property transfers were void under section 37A of the Conveyancing Act 1919 (NSW) and that the consent orders should be set aside. The court ordered the property to be sold to satisfy the debt owed to the first respondent. The appeal focused on whether the primary judge should have made an order under section 67ZA of the Family Law Act 1975 (Cth) and the appropriateness of setting aside the consent orders due to the failure to disclose and notify the first respondent as a creditor.
The legal issues before the court involved the validity of the primary judge's decision to set aside the property settlement consent orders and the failure to disclose and notify the first respondent as a creditor. The court examined whether the primary judge should have exercised his discretion to make an order under section 67ZA, which allows the court to make available any property or income of a party to satisfy debts. Additionally, the court considered whether the failure to disclose and notify the first respondent as a creditor justified setting aside the consent orders. The appeal also questioned whether the primary judge erred in prioritising the husband's debts over the division of property between the husband and the wife, and whether there were any grounds for an adjustment based on contributions and section 75(2) considerations.
The court found that the primary judge did not err in setting aside the consent orders due to the failure to disclose and notify the first respondent as a creditor. The court held that the magnitude of the failure warranted the setting aside of the orders. Regarding the priority of the husband's debts, the court upheld the primary judge's decision that the husband's debts should be paid before the property was divided. The court reasoned that any adjustment based on contributions and section 75(2) considerations could not improve the wife's position as against the husband, as she was to receive 100 per cent of the net assets in Australia. Furthermore, the court determined that seeking recovery of the debt overseas from the husband would impose another miscarriage of justice upon the first respondent. Consequently, the appeals were dismissed, and the orders made on 23 July 2019 were discharged. Any party seeking an order regarding costs was directed to file and serve written submissions on the issue of costs within a specified timeframe.
Orders
Orders of the court
1.
Appeal No. EAA 64 of 2019 be dismissed.
2.
Appeal No. EAA 67 of 2019 be dismissed.
3.
Appeal No. EAA 73 of 2019 be dismissed.
4.
Order 4 made on 23 July 2019 is discharged.
5.
Any party seeking an order as to costs is to file and serve written submissions on the issue of costs within 21 days. Written submissions in response are to be filed and served within a further 21 days, with any submissions in reply to be filed and served seven days thereafter.
Note: The form of the order is subject to the entry of the order in the Court’s records.