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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- AGLC
- Chaban & Chaban [2022] FedCFamC1A 162
- Case
- [2022] FedCFamC1A 162
- Decision Date
CaseChat Overview and Summary
In the matter of Chaban & Chaban, the appeal is against orders made by a magistrate of the Magistrates Court of Western Australia in relation to enforcement of consent orders made by the Family Court of Western Australia. The primary issue before the court was whether the magistrate had jurisdiction to make the orders in question. Specifically, the court needed to determine whether the magistrate had the authority to enforce the consent orders made by the Family Court, given that the Family Court is a superior court of record.
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.
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.
Orders
Orders of the court
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Background
Background to the litigation
In circumstances where both parties acknowledged that the Family Court of Western Australia, constituted by a single judge, is a superior court of record, the appeal must fail. This is because orders made by a superior court of record remain valid unless and until they are set aside on appeal or quashed by way of prerogative writ.Background By consent orders made by a judge of the Family Court of Western Australia on 20 April 2021, the parties agreed to finalise their dispute in respect to property settlement following the breakdown of their relationship. Relevantly, the subject consent orders included Orders 13, 14, 15 and 16 (“the relevant orders”), which are as follows: 13.Pursuant to paragraph 90XT(4) of the Act a base amount be allocated to the Wife from the Husband's interest in the Chaban Superannuation Fund ("the Fund") with that base amount to be calculated as follows:(a)Half of the combined value of the Wife and Husband's member entitlements in the Fund as at the date of the Orders; less (b)The value of the Wife's member entitlements as at the date of the Orders. 14.Pursuant to paragraph 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the Husband's interest in the Fund: (a)The Wife is entitled to be paid the amount (if any) calculated in accordance with the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount allocated in the previous order; and (b)There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order. 15.The previous order has effect from the operative time, being 7 days after the publication of these orders to the parties or their solicitors.16.The parties as in their capacities as directors of A Pty Ltd, the Trustee of the Fund, (“the Trustee”) do all acts and things and sign all such documents as may be necessary, so that, in accordance with the obligations set out under the Act and the Regulations, the Trustee can calculate the entitlement of, and make payment to, the Wife in accordance with these orders. The parties have been unable to agree to the valuation of their self-managed superannuation fund in accordance with Order 16 of the relevant orders. As a result, by way of an Application in a Proceeding filed on 17 January 2022, the wife, Ms Chaban (“the respondent”) sought orders for the enforcement of the relevant orders. On 10 June 2022, the magistrate made orders that are the subject of this appeal. The applicant seeks to appeal only Orders 2, 3, 5 and 7. Those orders are as follows:2.Within 7 days of the date of publication of these orders, the parties do all things and sign all documents necessary and provide all of the necessary authorisations to any financial institution that hold monies on behalf of the Chaban Superannuation Fund to implement the superannuation splitting orders as set out at paragraphs 13-18 (inclusive) of the orders made (by consent) on 20 April 2021 (“the superannuation splitting orders”). 3.In the event that the Respondent Husband, MR CHABAN, does not comply with the previous paragraph, pursuant to s 106A of the Family Law Act 1975 (Cth) the Applicant be appointed to sign all of the documents necessary to implement the superannuation orders on behalf of the Respondent.…5.Within 7 days, the Respondent pay to the Applicant the sum of $2,500 in contribution to her costs associated with the enforcement of the superannuation orders.…7.All extant applications and responses otherwise be and are hereby dismissed.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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