GREEN and BALDERRAMA - [2022] FCWA 244

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GREEN and BALDERRAMA [2022] FCWA 244
CORAM: COHEN J
HEARD: 26 OCTOBER 2022
DELIVERED : 23 NOVEMBER 2022
FILE NO/S: 7824 of 2021
BETWEEN: MR GREEN
Applicant
AND
MS BALDERRAMA
Respondent

Catchwords:

ENFORCEMENT – Enforcement of final property settlement orders – where both parties have brought competing enforcement applications – whether time to effect a transfer a property substantive or consequential order – whether wife obtained unconditional finance within time– whether wife breached injunction restraining parties from encumbering the property – whether husband frustrated the orders – exercise of discretion in favour of the wife

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Counsel A
Respondent	:	Counsel B

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B

Case(s) referred to in decision(s):

Bebbington & Bebbington (2017) FLC 93-765
Bray and Bray (1988) FLC 91-968
McMillan & McMillan [2016] FamCA 387
Palmer and Mr Norman as Case Guardian for Ms Stephen-Palmer [2022] FCWA
113
Pera & Pera (2008) FLC 93-372
Ravasini and Ravasini (1983) FLC 91-312
Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd
(in liq) & Anor [2007] WASCA 67
Slapp and Slapp (1989) FLC 92-022
Wells (Deceased) (by her Legal Personal Representative, Ms M) and Wells &
Anor [2016] FCWA 45

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green and Balderrama has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2012 (WA).

Introduction

1The Court is required to determine competing enforcement applications arising from a minute of final consent orders signed on 12 April 2022 ("the minute") by the parties [Mr Green] ("the husband") and Ms Balderrama ("the wife").
2I refer to the parties as husband and wife respectively notwithstanding the fact that they are separated but to avoid any confusion which might otherwise arise by identifying them as the applicant and respondent, particularly in the context of enforcement proceedings. I mean no disrespect to the parties by this reference and acknowledge that their relationship has concluded.
3The Court pronounced orders in terms of the minute on 14 April 2022 ("the Orders"). Importantly, however, as it is relevant to the enforcement dispute between the parties, the Orders were not extracted to the parties by the Court until 21 April 2022. As the Court now operates digitally, the Court can identify the first time a recipient of an order retrieves the order on the e-Courts portal. I…

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 GREEN and BALDERRAMA

Details

AGLC: GREEN and BALDERRAMA [2022] FCWA 244
Case: [2022] FCWA 244
Decision Date: 23 NOVEMBER 2022

CaseChat Overview and Summary

In the case of Green and Balderrama, the parties were in dispute over the enforcement of a final property settlement order. The wife sought to enforce an order to transfer a property to her, while the husband sought to have the order varied or set aside. The matter was heard in the Family Court of Australia. The central issue before the court was whether the time for effecting a transfer of the property was a substantive or consequential order. The court also had to determine whether the wife obtained unconditional finance within the time required by the order and whether she had breached an injunction restraining the parties from encumbering the property. Additionally, the court had to consider whether the husband had frustrated the orders.

The court found that the time for effecting a transfer of the property was a consequential order and not a substantive order. The court also found that the wife had obtained unconditional finance within the time required by the order. However, the court found that the wife had breached the injunction by encumbering the property. Despite this, the court found that the husband had frustrated the orders by failing to cooperate with the wife in obtaining finance and transferring the property. In exercising its discretion, the court found in favour of the wife and ordered the husband to transfer the property to her.

The court's decision was based on a careful consideration of the evidence and the orders made in the original property settlement proceedings. The court found that the husband's conduct had frustrated the orders and that the wife had acted reasonably in attempting to obtain finance and transfer the property. The court also found that the husband's failure to cooperate with the wife had caused the delay in transferring the property. The court's decision was in line with the principles set out in previous cases and provided guidance for future cases involving the enforcement of property settlement orders. The court's final orders included an order for the husband to transfer the property to the wife and a direction that the parties cooperate in obtaining finance and completing the transfer.

Orders