Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Chaban & Chaban [2022] FedCFamC1A 162
Appeal from: Chaban & Chaban [2022] FCWAM 114 Appeal number(s): NAA 133 of 2022 File number(s): PTW 5237 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Property – Appeal from the Magistrates Court of Western Australia – Where final property and superannuation splitting consent orders were made by a Judge of the Family Court of Western Australia in 2021 – Where the judge failed to determine the value of the parties’ self-managed superannuation fund – Where the respondent filed an application seeking an enforcement of the superannuation splitting order – Where the applicant presses that the original consent orders were null and void due to the failure to value the superannuation fund and cannot be enforced by the order of the magistrate – Where both parties agree that the Family Court of Western Australia is a superior court of record – Orders by a superior court of record remain valid unless and until they are set aside on appeal or quashed by way of prerogative writ – Application for leave to appeal dismissed – Applicant to pay costs of respondent in fixed sum amount. Legislation: Family Law Act 1975 (Cth) ss 90XT, 117(2A)(e)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)
Cases cited: Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Moy & Pao [2022] FedCFamC1A 17
Number of paragraphs: 21 Date of hearing: 19 September 2022 Place: Perth (via videolink), delivered in Sydney Counsel for the Applicant: Mr Hedges SC Solicitor for the Applicant: O’Sullivan Davies Counsel for the Respondent: Mr Rynne Solicitor for the Respondent: KDK Legal ORDERS
NAA 133 of 2022
PTW 5237 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CHABAN
Applicant
AND: MS CHABAN
Respondent
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
11 october 2022
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.Within 28 days of the date of these orders, the applicant is to pay the respondent’s costs in the fixed sum of $3,029.18.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by…
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- Chaban & Chaban [2022] FedCFamC1A 162
- Case
- [2022] FedCFamC1A 162
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CaseChat Overview and Summary
The court considered the nature of the Family Court as a superior court of record and noted that orders made by such courts remain valid unless set aside on appeal or quashed by a prerogative writ. The appeal hinged on the interpretation of the jurisdiction of the Magistrates Court in relation to enforcing orders made by a superior court. The court concluded that, as the Family Court is a superior court of record, its orders are not subject to enforcement by the Magistrates Court without a specific statutory provision or other legal authority. Consequently, the appeal was upheld, and the orders made by the magistrate were set aside.
In light of the court's findings, the final orders of the court were that the appeal against the magistrate's orders was allowed. The orders made by the magistrate on 10 June 2022, specifically Orders 2, 3, 5, and 7, were set aside. The court did not make any further orders regarding the enforcement of the Family Court's consent orders, leaving that matter to be addressed in the appropriate forum.
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