Colville and Colville - [2019] FamCA 796

FAMILY COURT OF AUSTRALIA

COLVILLE & COLVILLE

[2019] FamCA 796

FAMILY LAW – ENFORCEMENT OF ORDERS – Where determination of sum payable – Where order made for payment – Where costs of and incidental to application to be as agreed or as assessed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.18, 20.07

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins & Collins (1985) FLC 91-603
Greedy & Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka & Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms Colville

RESPONDENT:

Mr Colville

FILE NUMBER:

PAC

5181

2013

DATE DELIVERED:

31 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

30 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

LCI Legal

COUNSEL FOR THE RESPONDENT:

Mr Cook

SOLICITOR FOR THE RESPONDENT:

Adams Patners Lawyers

Orders

That it is declared that the sum payable to the wife by the husband pursuant to orders made 1 March 2017 is $66,704.11.
That the sum provided for in Order 1 be paid by the husband to the wife within 14 days from this date.
Upon noting that the wife is entitled to her costs of and incidental to the present application pursuant to Orders made 1 March 2017, it is ordered that such costs be in the sum as agreed within one month from this date or as assessed on a party/party basis with such costs payable within one month of agreement or assessment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Colville & Colville has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5181 of 2013

Ms Colville

Applicant

And

Mr Colville

Respondent

REASONS FOR JUDGMENT

Introduction

The application for determination is an application for enforcement arising from section 79 orders made as between the husband and wife on 1 March 2017.
Relevantly the orders, in summary, provided:
a)that within seven days of the date of orders the husband and wife do all things necessary to authorise certain solicitors to pay the sum of $394,424.13 to the wife;
b)(Order 4) that within 12 months from the date of orders the husband pay to the wife the sum of $658,000 and provided payment is made within such…

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 Colville and Colville

Details

AGLC: Colville and Colville [2019] FamCA 796
Case: [2019] FamCA 796
Decision Date: 31 October 2019

CaseChat Overview and Summary

In *Colville and Colville*, Foster J of the Federal Circuit Court of Australia was required to determine the precise sum payable by the husband to the wife under existing property settlement orders made on 1 March 2017. The dispute centred on the calculation of this sum, leading to the husband's obligation to pay a specific amount to the wife.

The primary legal issue before the court was to ascertain the exact monetary amount due to the wife pursuant to the prior orders. This involved interpreting and applying the terms of those orders to the factual circumstances presented, in order to quantify the financial obligation of the husband.

Foster J declared that the sum payable to the wife by the husband was $66,704.11. The court ordered that this amount be paid within 14 days. Furthermore, the wife was awarded her costs of the application, to be agreed upon within one month or assessed on a party/party basis, with payment due within one month of agreement or assessment.

Orders

Orders of the court

That it is declared that the sum payable to the wife by the husband pursuant to orders made 1 March 2017 is $66,704.11.

That the sum provided for in Order 1 be paid by the husband to the wife within 14 days from this date.

Upon noting that the wife is entitled to her costs of and incidental to the present application pursuant to Orders made 1 March 2017, it is ordered that such costs be in the sum as agreed within one month from this date or as assessed on a party/party basis with such costs payable within one month of agreement or assessment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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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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