HAGAR & MORENO

Case [2021] FCCA 1271


FEDERAL CIRCUIT COURT OF AUSTRALIA

HAGAR & MORENO [2021] FCCA 1271

Catchwords:
FAMILY LAW – Children – Application to vary consent orders – Consideration of Rice & Asplund.

FAMILY LAW – Property – Application to set aside consent orders – Application for summary dismissal.

FAMILY LAW – Property – Application for removal of Caveat.

FAMILY LAW – Costs – Application for Indemnity Costs.

Legislation:

Family Law Act 1975 (Cth), ss.64B, 45A, 79A, 117

Federal Circuit Court Rules2001, r.13.10

Cases cited:

Beck & Beck [2004] FamCA 92
Bennett& Bennett (1991) FLC 92-191
Bigg v Suzi (1998) FLC 92-799
Colgate Palmolive v Cussons (1993) 118 ALR 248
D & Y (1995) FLC 92-581
Donaghey v Donaghey (Costs) (2012) 47 FamLR 306
Fitzgerald v Fish (2005) 33 FamLR 123
Karlsson & Karlsson [2020] FamCAFC 207
King and Finneran [2001] FamCA 344
Lindon v Commonwealth of Australia (No 2) [1996] HCA 14
Marsden and Winch [2009] FamCAFC 152
Pelerman and Pelerman (2000) FLC 93-037
Prston v Preston [1982] 1 All ER 41
Rice & Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
Ritter & Ritter and Anor [2020] FamCAFC 86
Rohnan & Rohnan [2010] FMCAfam 1091
Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FamCAFC 16
Webster v Lampard (1993) 177 CLR 598

Applicant: MR HAGAR
Respondent: MS MORENO
File Number: BRC 10182 of 2020
Judgment of: Judge Lapthorn
Hearing date: 4 December 2020
Date of Last Submission: 4 December 2020
Delivered at: Brisbane
Delivered on: 10 June 2021

REPRESENTATION

Solicitors for the Applicant: Self represented
Solicitors for the Respondent: Simonidis Steel Lawyers

ORDERS

  1. That the Amended Initiating Application filed 16 November 2020 be summarily dismissed.

  2. That within sixty (60) days of the date of these orders the Applicant pay the Respondent’s Costs fixed in the sum of $10,403.72.

  3. That within fourteen (14) days of the date of these orders the Applicant, at his sole cost, do all acts and things necessary to remove the caveat having caveat number xxxxx58 over the title of the real property situated at A Street, Suburb B having title reference xxxxx23.

  4. That in the event the Applicant fails, neglects or refuses to do all acts and things necessary to remove the caveat in accordance with order (3) herein, then pursuant to section 106A of the Family Law Act 1975, a Registrar of the Federal Circuit Court of Australia at Brisbane is hereby empowered to sign any and all documents on behalf of the Applicant that may be required to remove the caveat, and for this purpose, an affidavit from the Respondent deposing to the Applicant’s non-compliance shall be sufficient evidence to give rise to this order.

IT IS NOTED that publication of this judgment under the pseudonym Hagar & Moreno is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10182 of 2020

MR HAGAR

Applicant

And

MS MORENO

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant, Mr Hagar,…

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AGLC
HAGAR & MORENO [2021] FCCA 1271
Case
[2021] FCCA 1271
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Lapthorn considered applications by the Applicant to vary consent orders, set aside consent orders, and remove a caveat lodged by the Respondent. The Respondent sought summary dismissal of the Applicant's claims and sought indemnity costs.

The central legal issues before the court were whether the Applicant's applications to vary or set aside the consent orders should be summarily dismissed, the appropriate orders to be made regarding the removal of a caveat, and the question of costs, including the possibility of indemnity costs. The court was required to consider the principles governing the variation and setting aside of consent orders, particularly in light of the decisions in *Rice v Asplund*.

Judge Lapthorn applied the principles established in *Rice v Asplund* and *Harris v Harris*, which require a high degree of proof to set aside consent orders, demonstrating that the orders were not properly made or that there were significant circumstances that would make it unjust to uphold them. The court found that the Applicant had failed to provide sufficient evidence to warrant setting aside the consent orders or to justify a variation. Consequently, the court determined that the Amended Initiating Application should be summarily dismissed.

The court ordered the summary dismissal of the Applicant's Amended Initiating Application. The Applicant was ordered to pay the Respondent's costs fixed at $10,403.72 within sixty days. Furthermore, the Applicant was directed to remove the caveat over the specified property at his sole cost within fourteen days, with provision made for a Registrar to sign necessary documents should the Applicant fail to comply.

Orders

Orders of the court

1.

That the Amended Initiating Application filed 16 November 2020 be summarily dismissed.

2.

That within sixty (60) days of the date of these orders the Applicant pay the Respondent’s Costs fixed in the sum of $10,403.72.

3.

That within fourteen (14) days of the date of these orders the Applicant, at his sole cost, do all acts and things necessary to remove the caveat having caveat number xxxxx58 over the title of the real property situated at A Street, Suburb B having title reference xxxxx23.

4.

That in the event the Applicant fails, neglects or refuses to do all acts and things necessary to remove the caveat in accordance with order (3) herein, then pursuant to section 106A of the Family Law Act 1975, a Registrar of the Federal Circuit Court of Australia at Brisbane is hereby empowered to sign any and all documents on behalf of the Applicant that may be required to remove the caveat, and for this purpose, an affidavit from the Respondent deposing to the Applicant’s non-compliance shall be sufficient evidence to give rise to this order.

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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