Gull and Gull (No 2) - [2012] FamCA 431

FAMILY COURT OF AUSTRALIA

GULL & GULL (NO. 2)

[2012] FamCA 431

FAMILY LAW - CONTRAVENTION - Section 79A(1)(c) - Wife fails to comply with an order to bring money to Australia from banks in India - Husband incurs mortgage payments on his Australian property unnecessarily

FAMILY LAW – COSTS - Wife in default - Costs ordered

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

Cawthorn and Cawthorn [1998] FamCA 37
Line & Line (1997) FLC 92-729
Ravascini and Ravascini (1983) FLC 91-312

APPLICANT:

Mr Gull

RESPONDENT:

Ms Gull

FILE NUMBER:

MLC

10581

2008

DATE DELIVERED:

8 June 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weil

SOLICITOR FOR THE APPLICANT:

Vernon De Gama & Associates

SOLICITOR FOR THE RESPONDENT:

Mr Selimi, Radebe & Associates

Orders

That paragraphs 2 and 3 of the orders made 19 March 2008 (as varied by the orders of the Full Court on 30 April 2009) be varied such that, from the wife’s cash entitlement from the funds repatriated from India to Australia, $111,435.00 be paid to the husband being made up as follows:
(a) $50,000 pursuant to s 79A(1)(c) of the Family Law Act 1975 (Cth);
(b)       $60,000 by way of costs;
(c)       $880.00 to discharge the costs order made 28 February 2005; and
(d)       $555.00 to discharge the costs order made on 6 October 2009.
That paragraphs 2 and 3 of the said orders be further varied so that from the said repatriated funds, $22,000 be set aside by solicitors Vernon De Gama and Associates to satisfy any taxation liability arising out of the firm or its principal, acting as trustee for the said repatriated funds.
That in the event that there is an excess after the payment of any taxation liability under paragraph 2 of these orders, the excess shall be divided between the parties as to 65 per cent to the wife and 35 per cent to the husband.
That paragraphs 2 and 3 of the orders made on 24 November 2004 are discharged AND THE COURT REQUESTS that the Australian Federal Police remove the name of R born … October 1994 from the Airport Watch List.
That pursuant to and for the purposes of section 11 of the Australian Passports Act2005 (Cth), the child R born … October 1994 is permitted to travel internationally.
All extant applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gull & Gull (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10581 of 2008

Mr Gull

Applicant

And

Ms Gull

Respondent

REASONS FOR JUDGMENT

This dispute is about whether the Court should exercise its discretion and alter final property orders because of the circumstances that have occurred since those orders were made. There is also a…

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 Gull and Gull (No 2)

Details

AGLC: GULL & GULL (NO. 2) [2012] FamCA 431
Case: [2012] FamCA 431
Decision Date: 8 June 2012

CaseChat Overview and Summary

In *Gull and Gull (No 2)*, the wife failed to comply with a court order requiring her to bring funds from Indian banks to Australia. This non-compliance resulted in the husband unnecessarily incurring mortgage payments on his Australian property. The matter came before Cronin J.

The court was required to determine whether the wife had contravened the Family Law Act 1975 (Cth) and, if so, to consider the appropriate orders for variation of previous property settlement orders and costs. Specifically, the court considered the application of section 79A(1)(c) of the Act, which allows for the alteration of property orders where a party has failed to comply with an order.

Cronin J found that the wife had contravened the order by failing to repatriate the funds from India. The court reasoned that this failure directly caused the husband to incur additional mortgage expenses. Consequently, the court varied the existing property orders to direct that a sum of $111,435.00 be paid from the wife's cash entitlement from the repatriated funds to the husband. This amount comprised $50,000 pursuant to section 79A(1)(c) for the contravention, $60,000 for costs, and the discharge of two prior costs orders.

Further orders were made for $22,000 to be set aside from the repatriated funds to cover potential taxation liabilities, with any excess to be divided 65 per cent to the wife and 35 per cent to the husband. The court also discharged previous orders and permitted the child, R, to travel internationally, requesting the Australian Federal Police remove R from the Airport Watch List. All other extant applications were dismissed.

Orders

Orders of the court

That paragraphs 2 and 3 of the orders made 19 March 2008 (as varied by the orders of the Full Court on 30 April 2009) be varied such that, from the wife’s cash entitlement from the funds repatriated from India to Australia, $111,435.00 be paid to the husband being made up as follows:

(a) $50,000 pursuant to s 79A(1)(c) of the Family Law Act 1975 (Cth);

(b) $60,000 by way of costs;

(d) $555.00 to discharge the costs order made on 6 October 2009.

That paragraphs 2 and 3 of the said orders be further varied so that from the said repatriated funds, $22,000 be set aside by solicitors Vernon De Gama and Associates to satisfy any taxation liability arising out of the firm or its principal, acting as trustee for the said repatriated funds.

That in the event that there is an excess after the payment of any taxation liability under paragraph 2 of these orders, the excess shall be divided between the parties as to 65 per cent to the wife and 35 per cent to the husband.

That paragraphs 2 and 3 of the orders made on 24 November 2004 are discharged AND THE COURT REQUESTS that the Australian Federal Police remove the name of R born … October 1994 from the Airport Watch List.

That pursuant to and for the purposes of section 11 of the Australian Passports Act 2005 (Cth), the child R born … October 1994 is permitted to travel internationally.

All extant applications are otherwise dismissed.

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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