Hamrock and Hamrock and Anor - [2020] FCWA 49

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HAMROCK and HAMROCK & ANOR [2020] FCWA 49
CORAM: TYSON J
HEARD: 28, 29, 30 and 31 JANUARY 2020
DELIVERED : 31 MARCH 2020
FILE NO/S: PTW 674 of 2011
BETWEEN: MR HAMROCK
Applicant
AND
MS HAMROCK
First Respondent
AND
BANK A
Second Respondent

Catchwords:

PROPERTY – Application pursuant to s 79A to set aside consent orders – Applicant asserts circumstances have arisen since the consent order was made, which make performance impracticable pursuant to s 79A (1)(b) – Application dismissed - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mrs Farmer
First Respondent	:	Mr Hooper SC
Second Respondent	:	Did not participate at trial

Solicitors:

Applicant	:	Leach Legal
First Respondent	:	Dwyer Durack
Second Respondent	:	Lavan

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

Bigg & Suzi (1998) FLC 92-799
Cawthown & Cawthorn [1998] FamCA 37
Fotia & Welsh [2013] FCWA 112
Franklin and McLeod (1994) FLC 92-481
Gebert & Gebert (1990) FLC 92-137
Gilbert & Estate of the late Gilbert (1990) FLC 92-125
Kowalski & Kowalski (1993) FLC 92-342
La Rocca & La Rocca (1991) FLC 92-222
Lane & Lane (2016) FLC 93-699
Parker & Parker (1983) FLC 91-364
Reichstein & Reichstein [2006] FamCA 1422
Rohde & Rohde (1984) FLC 91-592
Sanger & Sanger (2011) FLC 93-489

TYSON J:

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 Hamrock & Hamrock has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1[Mr and Mrs Hamrock] were unable to agree on orders by way of alteration of their property interests following the breakdown of their marriage. On the first day of trial on 6 February 2014, they resolved matters by consent.[1] The Consent Orders were negotiated and made on the basis they provided the net property of the parties be divided as 60% to [the wife] and 40% to [the husband].
[1] Consent Orders.
2The Consent Orders were supported by a schedule which specified the assets and liabilities to be divided in specie, for the sale of the former family home, [Property A] and an overall division. The estimated asset pool at the date of the Consent Orders was $2,880,583, which was predicated on the basis Property A sold for $2,150,000, noting the other variable amounts to be quantified. Property A subsequently sold for $1,750,000. Accordingly, each party’s entitlements were reduced.
3In breach of the Consent Orders, The husband did not:
(a)Transfer [Property B] to the wife.[2]
(b)Discharge the mortgage secured over Property B on or before 30 June 2016.[3]
(c)Pay the amount required to the wife to achieve the overall agreed division, on or before 30 June 2016.[4]
[2] Order 8.
[3] Order 10.
[4]…

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.

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Details

Case: [2020] FCWA 49
Decision Date: 31 MARCH 2020

CaseChat Overview and Summary

In the case of Hamrock and Hamrock and Anor, the applicants sought to set aside consent orders that had previously been made regarding a property dispute. The application was brought pursuant to section 79A, which allows for the setting aside of consent orders if it is shown that circumstances have arisen that make performance impracticable. The applicants argued that such circumstances had indeed arisen, rendering the performance of the consent orders impractical.

The central legal issue before the court was whether the applicants had demonstrated that circumstances had arisen since the consent orders were made, which would make performance of those orders impracticable. The court was required to examine the evidence provided by the applicants and determine whether the circumstances alleged were sufficient to warrant the setting aside of the consent orders. This involved a detailed analysis of the changes in circumstances and their impact on the practicality of performing the orders.

After considering the evidence and arguments presented, the court found that the applicants had not demonstrated that the circumstances alleged made performance of the consent orders impracticable. The court held that the applicants had not met the threshold required under section 79A(1)(b) to set aside the consent orders. Consequently, the application was dismissed, with the court emphasising that the case turned on its own unique facts and circumstances. The decision underscored the high threshold that must be met for an application of this nature to succeed.

Orders