Gitane & Velacruz - [2008] FamCAFC 86

FAMILY COURT OF AUSTRALIA

GITANE & VELACRUZ

[2008] FamCAFC 86

FAMILY LAW - APPEAL – SECTION 79A – Where trial Judge found an implied consent to variation of previous consent orders – Whether trial Judge erred in making orders which effectively gave the same result as enforcement of the consent orders – Whether s 79A required the trial Judge to vary the consent orders in strict accordance with the implied agreement of the parties – Whether trial Judge was required to set aside the consent orders before re-adjusting the parties’ property entitlements under s 79 – Whether s 79A(1A) needs only a two step examination of whether the consent was made out and then consideration of all other matters to decide whether to vary or set aside orders - Whether trial Judge erred in bifurcating the discretionary element of the s 79A determination – Where overall, a correct approach was achieved – No error by trial Judge - Trial Judge was not required to vary the consent orders in strict accordance with the implied agreement of the parties - Trial Judge was not required to set aside consent orders prior to re-adjusting the parties’ property entitlements – Discussion of the extent of the discretion to vary orders under s 79A(1) and s 79A(1A) – Trial Judge did not err in the exercise of his discretion - Appeal dismissed.

FAMILY LAW - COSTS – Where offers possibly made by parties - Time-table set for the filing of written submissions in respect of the costs of the appeal.

Family Law Act 1975 (Cth), s 75(2), s 79, s 79(1), s 79(2), s 79A, s 79A(1A)

Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
In the Marriage of Arpas (1989) FLC 92-042
In the Marriage of Patching (1995) FLC 92-585
In the Marriage of Prowse (1995) FLC 92-557

APPELLANT:

Mr Gitane

RESPONDENT:

Ms Velacruz

FILE NUMBER:

HBF

851

1997

APPEAL NUMBER:

104

2007

DATE DELIVERED:

25 June 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Warnick and Boland JJ

HEARING DATE:

7 May 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 October 2007

LOWER COURT MNC:

[2007] FamCA 1277

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Williams by video link

SOLICITOR FOR THE APPELLANT:

Cann Legal

COUNSEL FOR THE RESPONDENT:

Mr McVeity

SOLICITOR FOR THE RESPONDENT:

McVeity & Associates

Orders

That the appeal be dismissed.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party.
That either party be…

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 Gitane & Velacruz

Details

AGLC: Gitane & Velacruz [2008] FamCAFC 86
Case: [2008] FamCAFC 86
Decision Date: 25 June 2008

CaseChat Overview and Summary

Gitane & Velacruz involved a dispute between the parties regarding the variation of consent orders made under the Family Law Act. The appeal was heard in the Family Court of Australia, focusing on the interpretation and application of Section 79A. The primary issue was whether the trial judge erred in finding an implied consent to vary the existing consent orders, and if so, whether the trial judge was obligated to strictly adhere to the implied agreement when making new orders. Additionally, the court considered whether the trial judge was required to set aside the original consent orders before readjusting the parties’ property entitlements.

The court addressed the trial judge's approach to the exercise of discretion under Section 79A. It found that the trial judge was not bound to vary the consent orders in strict accordance with the implied agreement of the parties. The court further held that the trial judge did not need to set aside the consent orders before re-adjusting the parties' property entitlements. The court discussed the scope of discretion available under Section 79A(1) and 79A(1A), concluding that the trial judge did not err in the exercise of his discretion. The court found that the trial judge’s overall approach, though not strictly adhering to the implied agreement, achieved the correct result and dismissed the appeal.

The court also set a timetable for the filing of written submissions in respect of the costs incurred by the parties in relation to the appeal. The orders included provisions for each party to file submissions within specific timeframes and for the other party to respond accordingly. The court mandated that each party endorse the cover sheet with the date of service of submissions on the other party.

Orders

Orders of the court

That the appeal be dismissed.

That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party within 21 days of the date hereof.

That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party.

That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Melbourne Registry of the Family Court and serving it on the other party within a further 7 days.

That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.

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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