FAMILY COURT OF AUSTRALIA
| Gitane & Velacruz (No. 3) | [2007] FamCA 1277 | |||||
| FAMILY LAW – PROPERTY SETTLEMENT - Property orders - s79A(1A) principles in relation to “implied consent” to setting aside or variation of orders – whether “implied consent” or qualified consent given – s79A(1)(b) and (c) exercise of discretion – new orders pursuant to s79. | ||||||
| Family Law Act 1975 (Cth) | ||||||
| McCabe and McCabe (1995) FLC 92-634 at 82,370 | ||||||
| APPLICANT: | Mr Gitane | |||||
| RESPONDENT: | Ms Velacruz | |||||
| FILE NUMBER: | HBF | 851 | of | 1997 | ||
| DATE DELIVERED: | 30 October 2007 | |||||
| PLACE DELIVERED: | Sydney | |||||
| JUDGMENT OF: | The Hon. Justice Rose | |||||
| HEARING DATE: | 10 & 11 October 2007 | |||||
| REPRESENTATION | ||||||
| COUNSEL FOR THE APPLICANT: | Mr L Williams | |||||
| SOLICITOR FOR THE APPLICANT: | Cann Legal | |||||
| COUNSEL FOR THE RESPONDENT: | Mr M Foster | |||||
| SOLICITOR FOR THE RESPONDENT: | McVeity & Associates | |||||
Orders
Orders pursuant to section 79A(1A)
That Order 9 made 5 August 1998 is varied by omitting the amount of “$120,000.00” and substituting the amount of $31,260.00.
That Order 12 made 5 August 1998 be set aside.
Pursuant to section 79(1)
That the husband pay to the wife the sum of $31,269.00 on or before 29 February 2008.
Enforcement warrant filed 17 August 2005
That the enforcement warrant filed on behalf of the wife on 17 August 2005 be stood over generally with liberty to the wife to restore it to the list appropriately amended for mention upon seven (7) days written notice being given.
Costs order pursuant to Certificate of Taxation dated 15 March 2000
That the husband pay to the wife the sum of $1,250.35 being the outstanding costs pursuant to the Certificate of Taxation dated 15 March 2000 on or before 29 February 2008.
General
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Rose delivered this day will for all publication and reporting purposes be referred to as Gitane and Velacruz
| FAMILY COURT OF AUSTRALIA AT HOBART |
File number: HBF851 of 1997
| MR GITANE |
Applicant
And
| MS VELACRUZ |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings, by his Application for Final Orders filed 31 March 2006, Mr Gitane (who for convenience I shall refer to as “the husband”) sought orders pursuant to s79A(1) and s 79A(1A) that Orders 9 to 12 of the property settlement orders made by consent on 5 August 1998 (“the consent orders”) be set aside.
In addition, the husband sought orders which were that the respondent, Ms Velacruz (who for convenience I shall refer…
- AGLC
- Gitane and Velacruz (No. 3) [2007] FamCA 1277
- Case
- [2007] FamCA 1277
- Decision Date
CaseChat Overview and Summary
The court considered the interpretation of section 79A(1A) of the Family Law Act 1975 (Cth), referencing previous authorities. The central legal issue was whether the wife's actions and intentions constituted an implied withdrawal of consent to the original property settlement orders, or if her conduct indicated an implied consent to their variation. The court noted that the absence of explicit consideration or conclusion on financial matters could be a "fatal flaw" in reasoning regarding the required attention under section 79A(1A).
Justice Rose applied the dicta from *M and M* and *R and R*, finding that financial transactions could be consistent with either an intention to disregard or to act in accordance with previous property settlements. The court concluded that the wife's private intention to seek payment at some future indeterminate time did not amount to a withdrawal of implied consent, especially as she had transferred her interest in a property to the husband despite his non-compliance with a payment condition. The court found that the wife had provided implied consent to the variation of Orders 9 and 13, and implicitly to the setting aside of Order 12, based on a qualified consent given in a telephone conversation, which became unqualified upon her receiving legal advice, signing the transfer, and not opposing its registration.
The court ordered that Order 9 be varied by substituting the amount of "$120,000.00" with "$31,260.00". Order 12 was set aside. The husband was ordered to pay the wife the sum of $31,269.00 on or before 29 February 2008. The enforcement warrant filed by the wife was stood over generally, with liberty to restore it to the list upon seven days' written notice. The husband was also ordered to pay the wife $1,250.35 for outstanding costs.
Orders
Orders of the court
Orders pursuant to section 79A(1A)
1.
That Order 9 made 5 August 1998 is varied by omitting the amount of “$120,000.00” and substituting the amount of $31,260.00.
2.
That Order 12 made 5 August 1998 be set aside.
Pursuant to section 79(1)
3.
That the husband pay to the wife the sum of $31,269.00 on or before 29 February 2008.
Enforcement warrant filed 17 August 2005
4.
That the enforcement warrant filed on behalf of the wife on 17 August 2005 be stood over generally with liberty to the wife to restore it to the list appropriately amended for mention upon seven (7) days written notice being given.
Costs order pursuant to Certificate of Taxation dated 15 March 2000
5.
That the husband pay to the wife the sum of $1,250.35 being the outstanding costs pursuant to the Certificate of Taxation dated 15 March 2000 on or before 29 February 2008.
General
6.
That all documents produced on subpoena may be returned to the person who produced the same.
7.
That the proceedings be removed from the Active Pending Cases List.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I was helpfully referred to the review of relevant authorities in the judgment of M and M.[5] Whilst the unreported judgment in R and R[6] referred to in M and M centered upon resumption of cohabitation, that matter did not derogate from the principle to be applied should the facts attract that principle. Coleman J held in relation to the interpretation of s 79A(1A) that:“The absence of any consideration or conclusion in relation to financial matters as indicative of the attention required by the section, being implied or attributed, is in my view, a fatal flaw in the reasoning.” [emphasis added][5] M and M (2006) FamCA 1453 per Carmody J.[6] R and R (EA69 of 2001) per Coleman J (unreported) I respectfully follow and apply that dicta. As was referred to and summarised in M and M, following R and R, “financial transactions could have been found to have been consistent with either an intention to disregard a previous property settlement or to act in accordance with it”. In my view, the fact that the wife continued to privately hold an intention to perhaps seek payment by the husband of the outstanding monies at some indeterminate time in the future does not amount to a withdrawal of implied consent as she retained that intention exclusively to herself. Indeed, the wife entered into a significant transaction with the husband by transferring to him her interest in the T property, notwithstanding that he had not complied with the condition contained in Order 13 for that purpose, namely the payment of $120,000.00. The husband owed the wife $31,266.00 together with the monthly amount of $1,000.00 in terms of Order 12. In the financial circumstances of the wife at that stage, the outstanding amount and the transfer of her interest in real estate were significant matters so far as her rights pursuant to the consent orders were concerned, as well as her overall financial position. There is no suggestion on the evidence that the wife at that point had improved her financial circumstances to such a degree that being owed that amount and the transfer of her interest in real estate were relatively insignificant matters. Consequently, I find that the wife provided an implied consent to variation of Orders 9 and 13 of the consent orders to the effect that the husband was no longer liable pursuant to those orders to pay her the balance of monies payable, namely in this particular case the sum of $31,260.00. Implicitly, that implied consent was also given to the setting aside of Order 12. My reasons for so concluding are as follows.(a)The qualified consent given by the wife in the telephone conversation between the parties, to which I have referred.(b)The conversion of that qualified consent to an unqualified one upon the wife receiving and acting upon the legal advice that she received, whereby she signed the transfer, made it available to be received by the husband, the unopposed registration of the transfer, as well as the other matters detailed in paragraph 65 hereof which were not a matter of controversy.