FAMILY COURT OF AUSTRALIA
GITANE & VELACRUZ [2007] FamCA 183
APPEAL – PROPERTY – Attempt to resist enforcement of stale order – Summary dismissal of application – In 1998 husband ordered to organize sale of one property and pay wife $120,000, upon which she was transfer to him her interest in another property – For each month the property remained unsold the wife was to receive an additional $1,000 on top of her share – Property did not sell and in 2000 the wife obtained an order enabling her to take over sale – Property sold for less than envisaged – Wife demanded husband repay her the additional amount owing under the orders – Husband refused – Eventually in 2001 the wife transferred the property anyway – In late 2005 husband received demand by the wife for payment of the monies allegedly owing, with threat of sale of the second property – Wife then obtained an enforcement order from a Registrar – Husband sought orders discharging earlier orders and restraining the wife from enforcement, and also sought additional monies from the wife pursuant to s 79A of the Family Law Act 1975 – Wife applied to bifurcate the husband’s s79A application to determine if there existed any grounds to set aside the original order – Trial judge appeared to conclude that bifurcation was appropriate but then dealt with a summary dismissal application, although such application was not pending at that time – The trial Judge summarily dismissed the husband’s application – Trial judge should not have concluded that husband’s case to resist the enforcement of the order for the balance of moneys after many years doomed to failure – Appeal allowed and remitted for further hearing.
Family Law Act 1975 (Cth) Bigg v Suzi (1998) FLC 92 799
G v G [2005] FamCA 1171
Lyndon v Commonwealth No 2, (1996) 70 ALJR 541
McCabe (1995) 19 Fam LR 579; (1995) FLC 92-634
Ramsay (1983) FLC 91-323
APPELLANT: MR GITANE
RESPONDENT: MS VELACRUZ
FILE NUMBER: HBF 851 of 1997
APPEAL NUMBER: SA 59 of 2006
DATE DELIVERED: 7 FEBRUARY 2007
PLACE DELIVERED: Hobart
JUDGMENT OF: KAY, COLEMAN & BOLAND JJ
HEARING DATE: 7 FEBRUARY 2007
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 7 AUGUST 2006
LOWER COURT MNC: [2006] FamCA 1124 REPRESENTATION
COUNSEL FOR THE APPELLANT: MR WILLIAMS WITH MR CANN
SOLICITORS FOR THE APPELLANT: CANN LEGAL
COUNSEL FOR THE RESPONDENT: MS BAKER
SOLICITORS FOR THE RESPONDENT: MCVEITY & ASSOCIATES Orders
(1) The appeal be allowed;
(2) the orders made by Benjamin J, 17 August 2006 be set aside;
(3)the husband's application filed 31 March 2006 be remitted to a judge at first instance other than Benjamin J;
(4)The registrar at Hobart be requested to make further directions for the filing of material.
(5)That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court,…
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- Gitane & Velacruz [2007] FamCA 183
- Case
- [2007] FamCA 183
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CaseChat Overview and Summary
The primary legal issue before the Full Court was whether the orders made by Benjamin J were appropriate, and consequently, whether the husband's application should be remitted for further consideration. The Court was also required to determine the appropriate costs orders and the eligibility of the parties for costs certificates under the *Federal Proceedings (Costs) Act 1981*.
The Court allowed the appeal, setting aside the orders of Benjamin J. The husband's application was remitted to a judge at first instance, other than Benjamin J, for determination. The Court also directed the registrar at Hobart to make further directions for the filing of material. Both the appellant and the respondent were granted costs certificates under the *Federal Proceedings (Costs) Act 1981*, indicating the Court's opinion that it would be appropriate for the Attorney-General to authorise payment of costs incurred by each party in relation to the appeal.
Orders
Orders of the court
(1) The appeal be allowed;
(2) the orders made by Benjamin J, 17 August 2006 be set aside;
(3) the husband's application filed 31 March 2006 be remitted to a judge at first instance other than Benjamin J;
(4) The registrar at Hobart be requested to make further directions for the filing of material.
(5) That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
(6) That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
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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