Fenwick & Temple

Case [2021] FamCA 88

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Temple & Fenwick [2021] FedCFamC1A 2

Appeal from: Fenwick & Temple [2021] FamCA 88
Appeal number: NOA 15 of 2021
File number: BRC 13499 of 2017
Judgment of: AINSLIE-WALLACE, ALDRIDGE & BAUMANN JJ
Date of judgment: 8 September 2021
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal against an Order prescribing sixty (60) days for payment of the settlement sum – Appeal allowed in part – Order made in accordance with Minute of Order received from the parties.
Legislation: Family Law Act 1975 (Cth) s 117B
Cases cited:

Bhatnagar & Riju [2018] FamCAFC 144

Heidari & Ebadi [2020] FamCAFC 316

Number of paragraphs: 9
Date of hearing: 24 August 2021
Place: Brisbane (via video link)
Counsel for the Appellant: Mr Looney QC with Mr Alexander
Solicitor for the Appellant: Evans Brandon Family Lawyers
Counsel for the Respondent: Mr Kearney SC with Mr Drysdale
Solicitor for the Respondent: HopgoodGanim Lawyers

ORDERS

NOA 15 of 2021
BRC 13499 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR TEMPLE

Appellant
AND:

MS FENWICK

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & BAUMANN JJ

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

(1)The appeal against the decision of a judge of the Family Court of Australia made on 26 February 2021 be allowed in part.

THE COURT FURTHER ORDERS BY CONSENT THAT:

(2)Order 23 made on 26 February 2021 is varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021. Order 23 be varied as follows:

23The respondent cause the payment of:

(a)$7,830,521 to the applicant to be made as follows:

(i)the sum of $2,000,000 on or before 27 April 2021, noting that such payment has been made;

(ii)the sum of $1,750,000 on or before 25 October 2021;

(iii)the balance (“the relevant balance”) on or before 24 August 2022;

(b)interest on the relevant balance between 25 October 2021 and the date of payment of the relevant balance at the rate referred to in s 117B of the Family Law Act1975 (Cth) to be paid on the date of payment of the relevant balance; and

(c) in the event of non-compliance with Orders 23(a)(ii) or 23(a)(iii) then interest is payable at the rate referred to in s 117B of the Family Law Act 1975 (Cth):

(i) on the sum payable pursuant to Order 23(a)(ii) or such portion of it as is unpaid at 26 October 2021, from 27 April 2021 to the date of payment, and

(ii) on the sum payable pursuant to Order 23(a)(iii) or such portion of it as is unpaid at 25 August 2022, from 27 April 2021 to the date of payment.

(3) Order 24 made on 26 February 2021 is varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021. Order 24 be varied as follows:

24Paragraphs 3 and 4(b) of the Interim Order…

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AGLC
Fenwick & Temple [2021] FedCFamC1A 2
Case
[2021] FamCA 88
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Temple (the appellant) against orders made by a judge of the Family Court of Australia on 26 February 2021, in proceedings between Mr Temple and Ms Fenwick (the respondent). The appeal related to property settlement orders, specifically concerning the payment of a settlement sum and the discharge of spousal maintenance obligations.

The primary legal issue before the Full Court of the Federal Circuit and Family Court of Australia was whether to allow, in part, the appellant's appeal against the original orders. The court was required to determine the terms of any variation to the existing orders, particularly concerning the payment schedule for the settlement sum and the cessation of spousal maintenance.

The Full Court allowed the appeal in part. By consent of the parties, the court varied the original orders made on 26 February 2021. The variation primarily concerned Order 23, which prescribed the payment of $7,830,521 by the respondent to the applicant. The payment schedule was amended to include specific dates for instalments and the balance, along with provisions for interest on late payments. Orders 24 and 24A were also varied by consent, discharging certain spousal maintenance obligations and imposing restraints on the respondent's interest in a property to secure payment of the settlement sum, while also allowing for the maintenance of a caveat by the applicant.

The court made no order as to costs.

Orders

Orders of the court

NOA 15 of 2021

BRC 13499 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR TEMPLE

Appellant

AND:

MS FENWICK

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & BAUMANN JJ

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

(1) The appeal against the decision of a judge of the Family Court of Australia made on 26 February 2021 be allowed in part.

THE COURT FURTHER ORDERS BY CONSENT THAT:

(2) Order 23 made on 26 February 2021 is varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021. Order 23 be varied as follows:

23 The respondent cause the payment of:

(a) $7,830,521 to the applicant to be made as follows:

(i) the sum of $2,000,000 on or before 27 April 2021, noting that such payment has been made;

(ii) the sum of $1,750,000 on or before 25 October 2021;

(iii) the balance (“the relevant balance”) on or before 24 August 2022;

(b) interest on the relevant balance between 25 October 2021 and the date of payment of the relevant balance at the rate referred to in s 117B of the Family Law Act 1975 (Cth) to be paid on the date of payment of the relevant balance; and

(c) in the event of non-compliance with Orders 23(a)(ii) or 23(a)(iii) then interest is payable at the rate referred to in s 117B of the Family Law Act 1975 (Cth):

(i) on the sum payable pursuant to Order 23(a)(ii) or such portion of it as is unpaid at 26 October 2021, from 27 April 2021 to the date of payment, and

(ii) on the sum payable pursuant to Order 23(a)(iii) or such portion of it as is unpaid at 25 August 2022, from 27 April 2021 to the date of payment.

(3) Order 24 made on 26 February 2021 is varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021. Order 24 be varied as follows:

24 Paragraphs 3 and 4(b) of the Interim Order dated 14 May 2018 requiring the respondent to pay spousal maintenance be discharged as follows:

(a) paragraph 3(a), (b) and (c) and 4(b) be discharged on and from 27 April 2021; and

(b) paragraph 3(d) be discharged on and from payment made pursuant to Order 23(a)(ii).

(4) The Orders made on 26 February 2021 be varied in accordance with the minute of orders prepared and signed by the parties on 24 August 2021 to include an order as follows:

24A That pending compliance with Orders 23 and 24 herein:

(a) the respondent shall be and hereby is restrained from causing or permitting any dealing in respect of his interest in and to the real property situate at [B Street, Suburb C] (“the Suburb C property”) unless it is for the purpose for and only to the extent necessary of raising the payment pursuant to Order 23(a)(iii); and

(b) the respondent shall permit the applicant to maintain a caveat on the title to the [Suburb C] property and shall be and hereby is restrained from causing or permitting any act or thing that would remove such caveat AND the respondent shall forthwith upon receipt sign all documents as are submitted to him so as to permit the applicant to register and maintain such caveat PROVIDED THAT the applicant shall remove the caveat either for the purpose of the respondent raising to the extent necessary the payment pursuant to Order 23(a)(iii) or upon total payment being made pursuant to Order 23.

(5) There be no order as to costs.

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.

Background

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Evidence Before The Court

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Decision

Reasons for decision

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Legal Principle Established

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