Capan & Capan - [2023] FedCFamC2F 683

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Capan & Capan [2023] FedCFamC2F 683

File number(s): PAC 4897 of 2022

Judgment of: JUDGE MURDOCH

Date of judgment: 1 June 2023

Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE –Ex Tempore Reasons for Judgment - wife’s Application to review a Registrar’s decision to dismiss her Application for Enforcement of final property orders entered into by consent – where the husband raises issues as to service of the Application for Enforcement – where the husband’s conduct has been an impediment to enforcing the final property orders made by consent – where the husband’s legal representatives have sent inflammatory and unhelpful correspondence to the wife – Review upheld – Orders made for wife to be appointed as trustee for sale – Order for the husband to pay the wife’s costs in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) s105.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s190.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.04, 2.50 11.01(1), 11.04, 11.07.

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Schedule 2.

Cases cited: Lenova & Lenova (Costs) [2011] FamCAFC 141

Division: Division 2 Family Law

Number of paragraphs: 63

Date of hearing: 1 June 2023

Place: Parramatta

Solicitor for the Applicant: Lawgix

Counsel for the Applicant: Ms Rusiti

Solicitor for the Respondent: Shelly Legal

Counsel for the Respondent: Ms Giacomo
ORDERS

PAC 4897 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CAPAN

Applicant

AND:
MS CAPAN

Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

1 JUNE 2023

THE COURT ORDERS THAT:
1.      Personal service of the Application – Enforcement filed by the Wife on 7 March 2023 upon the Husband is dispensed with.
2.      Personal service of the Application for Review filed by the Wife on 26 April 2023 upon the Husband is dispensed with.
3.      Leave is granted to the Wife to amend the Application – Enforcement filed on 7 March 2023 and to seek the relief sought in the Minute of Order attached to the Outline of Case (Interim Hearing) filed by the Wife on 31 May 2023.
4.      The Application for Review filed by the Wife on 26 April 2023 is upheld and the Orders made by the Judicial Registrar on 5 April 2023 are discharged.
5.      By way of enforcement of the final property orders made on 5 September 2022:-
(a)within 21 days the Husband is to vacate the property located at B Street, Suburb C in the state of New South Wales being the whole of the property in certificate of title folio identifier … (“the B Street, Suburb C property”);
(b)the Wife (“the trustee”) be appointed as trustee for the sale of the B Street, Suburb C property;
(c)the trustee be authorised to do all acts and sign all documents necessary to effect the sale, including but not limited to:
(i)selecting an agent to market the property and…

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: Capan & Capan [2023] FedCFamC2F 683
Case: [2023] FedCFamC2F 683
Decision Date

CaseChat Overview and Summary

This case concerns an application by the wife to review the decision of a Judicial Registrar who dismissed her application for enforcement of final property orders. The husband contests the application for review on various grounds, including issues with the service of documents. The Court held that the husband was adequately served with both the application for enforcement and the application for review. The Court also granted leave for the wife to amend her application for enforcement to seek the relief outlined in her case outline. The substantive issue before the Court was whether to uphold the application for review. The Court found that the husband had acted in bad faith and in breach of the final property orders, which were made by consent. The Court held that it had the power and discretion to enforce its orders, and thus granted the application for review. The Court ordered that the wife be appointed as trustee for the sale of the property, that the husband vacate the property within 21 days, and that the husband pay the wife's costs of the application for review and the application for enforcement. The Court made a fixed costs order of $4,830 against the husband.

Orders