DEMENY & OGDEN - [2021] FCCA 543

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEMENY & OGDEN

[2021] FCCA 543

Catchwords:
FAMILY LAW – Defacto relationship - where final orders were made in May 2014 – consideration of section 90SN(1) – final orders not complied with – application by defacto wife to enforce final orders – defacto husbands seeks that the final orders be varied –– order to vary final orders – all extant applications otherwise dismissed

Legislation

Family Law Act 1975 (Cth), ss.79A(1), 90SN(1), 90SM

Cases cited:

Apoda & Apoda and Anor [2013] FamCA 265

Cawthorn & Cawthorn [1998] FamCA 37

Gebert & Gebert [1990] FLC 92-137

Herold & Kay [2012] FMCAfam 1071

Lancer & Lancer [2008] FamCAFC 112

La Rocca & La Rocca (1991) FLC 92-222

Sanger & Sanger [2011] FamCAFC 210

Suiker & Suiker [1993] FLC 92-436

Ullrich & Kraft [2014] FamCA 266

Applicant:

MS DEMENY

Respondent:

MR OGDEN

File Number:

ADC 1845 of 2013

Judgment of:

Judge Kari

Hearing date:

27 February 2020

28 February 2020

5 March 2020
6 April 2020
8 September 2020
27 October 2020
25 November 2020

Date of Last Submission:

25 November 2020

Delivered at:

Adelaide

Delivered on:

22 March 2021

REPRESENTATION

Counsel for the Applicant:

Mr Tredrea

Solicitors for the Applicant:

Polson Legal

Counsel for the Respondent:

Ms Pyke QC

Solicitors for the Respondent:

Jordan & Fowler

ORDERS

That the final order made 12 May 2014 be varied as follows:
(a)That paragraph 1.4 be varied to provide for the Applicant to make payment to the Respondent the sum of TWO HUNDRED AND TEN THOUSAND EIGHT HUNDRED AND SEVENTY SEVEN DOLLARS AND SIXTY THREE CENTS ($210,877.63) minus one half of the amount owing pursuant to the each of the following loans:
(i)Commonwealth Bank of Australia (“CBA”) Loan No. …06;
(ii)CBA Loan No. …08; and
(iii)CBA Loan No. …20 (“the Viridian Line of Credit”).
(b)That thereafter the Applicant discharge and fully and forever indemnify the Respondent with respect to the following loans:
(i)Commonwealth Bank of Australia (“CBA”) Loan No. …06;
(ii)CBA Loan No. …08; and
(iii)CBA Loan No. …20 (“the Viridian Line of Credit”).
That save and except as to any application as to costs, all extant applications otherwise be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Demeny & Ogden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1845 of 2013

MS DEMENY

Applicant

And

MR ODGEN

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to difficulties that have arisen in relation to final orders for property settlement made by consent between the parties on 12 May 2014 (“the final order”).
It is now almost seven years since those orders were made and nine years since the parties separated. Sadly for the parties they have been required to come back to court to obtain a resolution. However even that process has not been without difficulty and delay.
From the defacto wife’s perspective the final orders made are fulsome and she asks the Court to…

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 DEMENY & OGDEN

Details

AGLC: DEMENY & OGDEN [2021] FCCA 543
Case: [2021] FCCA 543
Decision Date: 22 March 2021

CaseChat Overview and Summary

In the Family Court of Australia, Judge Kari considered an application by the de facto wife to enforce final orders made in May 2014, which had not been complied with. The de facto husband sought a variation of these final orders.

The court was required to determine whether to vary the existing final orders, given the non-compliance and the husband's application for variation, and to consider the appropriate orders to be made in light of these circumstances.

Judge Kari reasoned that a variation of the final orders was warranted. The court ordered that a specific paragraph of the 2014 orders be amended to require the applicant to pay the respondent a sum of $210,877.63, reduced by half the amount owing on three specified Commonwealth Bank of Australia loans. Following this payment, the applicant was to discharge and fully indemnify the respondent concerning these same loans.

Save for any applications relating to costs, all other extant applications before the court were dismissed.

Orders

Orders of the court

That the final order made 12 May 2014 be varied as follows:

(a) That paragraph 1.4 be varied to provide for the Applicant to make payment to the Respondent the sum of TWO HUNDRED AND TEN THOUSAND EIGHT HUNDRED AND SEVENTY SEVEN DOLLARS AND SIXTY THREE CENTS ($210,877.63) minus one half of the amount owing pursuant to the each of the following loans:

(i) Commonwealth Bank of Australia (“CBA”) Loan No. …06;

(ii) CBA Loan No. …08; and

(iii) CBA Loan No. …20 (“the Viridian Line of Credit”).

(b) That thereafter the Applicant discharge and fully and forever indemnify the Respondent with respect to the following loans:

(i) Commonwealth Bank of Australia (“CBA”) Loan No. …06;

(ii) CBA Loan No. …08; and

(iii) CBA Loan No. …20 (“the Viridian Line of Credit”).

That save and except as to any application as to costs, all extant applications otherwise be dismissed.

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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