HANTS & MAGENNIS - [2018] FamCAFC 193

FAMILY COURT OF AUSTRALIA

HANTS & MAGENNIS

[2018] FamCAFC 193

FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Where the parties consented to agreed orders as to the appeal – Where the parties seek cost certificates – Where the appeal is a Federal Appeal – Where the primary judge’s order was plainly wrong – Error of law – Cost certificates issued.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

B & B(Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177
Cramer v Davies (1997) 72 ALJR 146; [1998] 1 Leg Rep 20

APPELLANT:

Mr Hants

RESPONDENT:

Ms Magennis

FILE NUMBER:

PTW

2707

2016

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

26 September 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Ainslie-Wallace, Austin & O'Brien JJ

HEARING DATE:

26 September 2018

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

16 March 2018

LOWER COURT MNC:

[2018] FCWAM 55

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Castiglione QC

SOLICITOR FOR THE APPELLANT:

Elizabeth Wiese & Associates

COUNSEL FOR THE RESPONDENT:

Mr Hedges

SOLICITOR FOR THE RESPONDENT:

Carr & Co

Orders

The appeal against the orders of Magistrate Walter made on 16 March 2018 is allowed.
The orders made by Magistrate Walter on 16 March 2018 be set aside.
In lieu thereof the court notes the agreement of the parties:
(a)The parties intend the orders to be made to finalise the financial relationships between the parties as far as practicable within the meaning and intent of s 81 of the Family Law Act 1975 (Cth).
(b)That orders 1 and 2 of the Minute of Consent orders made on 7 May 2018 remain in full force and effect and that the sum of $33,966 has been paid to the respondent.

IT IS ORDERED BY CONSENT

Within 30 days of these Orders, the Respondent, Ms Magennis, do all acts and things and sign all documents necessary, at the Appellant’s expense, to transfer her interest in a unit at L Retirement Village situated at Suburb B (“the Suburb B property”) to the Appellant and formally referred to in the parties’ lease agreement with L Retirement Village dated 22 October 2012.
Contemporaneously with Order 4 the Appellant pay the sum of $275,000 to the sum of $275,000 to the Respondent, such payment be made to her solicitor’s trust account.
Contemporaneously with Orders 4 and 5, the Appellant indemnify the Respondent and keep her indemnified in relation to all rates, taxes, and other apportionable outgoings relating to the Suburb B property.
Upon the making of these orders, all of the Respondent’s right, title, estate and interest (if any) in the following, vest absolutely in the Appellant:
(a)       the property situate at V Street, Suburb R;
(b)funds standing to his credit in banks, building societies, credit unions or other financial institutions;
(c)any investments in his name including shares in publicly listed
companies;
(d)       any life insurance policies of which he is the legal owner;
(e)       any…

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 HANTS & MAGENNIS

Details

AGLC: HANTS & MAGENNIS [2018] FamCAFC 193
Case: [2018] FamCAFC 193
Decision Date: 26 September 2018

CaseChat Overview and Summary

In the case of Hants and Magennis, the Federal Court of Australia was tasked with resolving a dispute between the parties regarding property and spousal maintenance. The appeal arose from orders made by Magistrate Walter on 16 March 2018, which were subsequently contested by the parties. The appeal was heard on the basis of consent, with both parties agreeing to the terms outlined in the Minute of Consent orders dated 7 May 2018. The primary legal issues concerned the interpretation and enforcement of these consent orders, particularly in light of perceived errors by the primary judge. The appeal addressed whether the orders were plainly wrong and whether they constituted an error of law.

The court found that the primary judge's orders were indeed plainly wrong and constituted an error of law. Consequently, the appeal was allowed, and the orders made by Magistrate Walter on 16 March 2018 were set aside. The court noted the parties' agreement that the financial relationships between them should be finalised in accordance with section 81 of the Family Law Act 1975. The consent orders from 7 May 2018, which included specific financial arrangements and the payment of a sum to the respondent, were to remain in full force and effect. Additionally, the court ordered the transfer of the respondent’s interest in a unit to the appellant, alongside a payment of $275,000 to the respondent. The court also addressed indemnification for rates, taxes, and other outgoings, as well as the vesting of various properties and assets between the parties. The court concluded by dismissing all other proceedings with no orders as to costs and granted cost certificates to both parties in respect of the appeal.

The court's final orders included the allowance of the appeal, the setting aside of the original orders, and the enforcement of the consent orders with specific financial and property arrangements. Both parties were granted costs certificates for their appeal-related expenses, and all other proceedings were dismissed without costs. The detailed terms of the consent orders, including asset transfers and financial payments, were to be implemented as agreed by the parties.

Orders

Orders of the court

The appeal against the orders of Magistrate Walter made on 16 March 2018 is allowed.

The orders made by Magistrate Walter on 16 March 2018 be set aside.

In lieu thereof the court notes the agreement of the parties:

(a) The parties intend the orders to be made to finalise the financial relationships between the parties as far as practicable within the meaning and intent of s 81 of the Family Law Act 1975 (Cth).

(b) That orders 1 and 2 of the Minute of Consent orders made on 7 May 2018 remain in full force and effect and that the sum of $33,966 has been paid to the respondent.

IT IS ORDERED BY CONSENT

Within 30 days of these Orders, the Respondent, Ms Magennis, do all acts and things and sign all documents necessary, at the Appellant’s expense, to transfer her interest in a unit at L Retirement Village situated at Suburb B (“the Suburb B property”) to the Appellant and formally referred to in the parties’ lease agreement with L Retirement Village dated 22 October 2012.

Contemporaneously with Order 4 the Appellant pay the sum of $275,000 to the sum of $275,000 to the Respondent, such payment be made to her solicitor’s trust account.

Contemporaneously with Orders 4 and 5, the Appellant indemnify the Respondent and keep her indemnified in relation to all rates, taxes, and other apportionable outgoings relating to the Suburb B property.

Upon the making of these orders, all of the Respondent’s right, title, estate and interest (if any) in the following, vest absolutely in the Appellant:

(a) the property situate at V Street, Suburb R;

(b) funds standing to his credit in banks, building societies, credit unions or other financial institutions;

companies;

(d) any life insurance policies of which he is the legal owner;

(e) any motor vehicle in his possession;

(f) the furniture and household contents in his possession; and

(g) the balance of his superannuation entitlements.

Upon the making of these orders, all of the Appellant's right, title, estate and interest (if any) in the following, vest absolutely in the Respondent:

(a) funds standing to her credit in banks, building societies, credit unions or other financial institutions;

(b) any investments in her name including shares in publicly listed companies;

(d) any motor vehicle in her possession;

(e) any jewellery in her possession;

(f) the furniture and household contents in her possession; and

(g) her superannuation entitlements.

The Respondent indemnify the Appellant and keep him indemnified in relation to all liability for:

(a) credit card debts in her name; and

(b) any other liabilities in her name.

10.

The Appellant indemnify the Respondent and keep her indemnified in relation to all liability for:

(a) credit card debts in his name; and

(b) any other liabilities in his name.

11.

Within 7 days of these Orders being made, the Appellant do all things to destroy all of the Respondent's personal:

(a) emails;

(b) documents;

(d) files,

which are currently saved on his computer and confirm, to the Respondent's solicitors, in writing, that the files have been destroyed.

12.

Orders made on 16 March 2018 and 14 June 2018 be discharged.

13.

Orders 3 to 7 inclusive on the Minute of Orders made on 7 May 2018 be discharged and the enforcement Application of the Respondent dated 12 April 2018 be dismissed.

14.

All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.

15.

In relation to material tendered as an exhibit into evidence in these proceedings:

(a) All parties must collect the exhibits tendered by them ("their exhibits"), from the Chambers of Magistrate Walter, at least 28 days, and no later than 42 days from the date hereof;

(b) All parties must contact the Chambers of Magistrate Walter to arrange the collection of their exhibits;

(c) In default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.

16.

All proceedings otherwise be dismissed with no Orders as to costs including in respect of the Appeal.

IT IS FURTHER ORDERED:

17.

The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

18.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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