Hassell and Hassell & Ors - [2021] FCWA 162

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HASSELL and HASSELL & ORS [2021] FCWA 162
CORAM: SUTHERLAND CJ
HEARD: [OMITTED]
DELIVERED : [OMITTED]
FILE NO/S: [OMITTED]
BETWEEN: MR HASSELL
Applicant
AND
MS HASSELL
First Respondent
AND
LUCAS HASSELL
Second Respondent
AND
DOROTHY HASSELL
Third Respondent
AND
LUXURY PRODUCT FARM PTY LTD (in its own right and as Trustee for the Luxury Product Farm Trust (ACN REDACTED))
Fourth Respondent
AND
HASSELL PROPERTY GROUP PTY LTD (in its own right and as Trustee for the Hassell Property Development Trust (ACN REDACTED))
Fifth Respondent
AND
LUXURY PRODUCT FARM PTY LTD (as Trustee for the LPF Trust (ACN REDACTED))
Sixth Respondent
AND
HASSELL PROPERTY MANAGEMENT PTY LTD (in its own right and as Trustee for the HPD Trust (ACN REDACTED))
Seventh Respondent
AND
NATIONAL LUXURY PRODUCT INTERNATIONAL PTY LTD (ACN REDACTED)
Eighth Respondent

Catchwords:

PRACTICE AND PROCEDURE - Application for summary dismissal of claim by wife seeking relief under s 106B of the Family Law Act 1975 (Cth) - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Berry SC
First Respondent	:	Mr Penglis SC
Second Respondent	:	Mr Davies
Third Respondent	:	Mr Wilson SC
Fourth Respondent	:	No Appearance
Fifth Respondent	:	No Appearance
Sixth Respondent	:	No Appearance
Seventh Respondent	:	No Appearance
Eighth Respondent	:	No Appearance

Solicitors:

Applicant	:	Paynes Lawyers
First Respondent	:	Bannerman Solicitors
Second Respondent	:	O'Sullivan Davies
Third Respondent	:	Kim Wilson & Co.
Fourth Respondent	:	N/A
Fifth Respondent	:	N/A
Sixth Respondent	:	N/A
Seventh Respondent	:	N/A
Eighth Respondent	:	N/A

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

[2020] FCWA 196
[2020] FCWA 38
[2020] FCWA 59
Ascot Investments v Harper (1981) 148 CLR 337
Custodio and Pinto & Ors (2006) FLC 93-279
Gitarro & Gitarro [2008] FamCA 358
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
R v T [2020] WASCA 109
Ritter & Ritter and Anor (2020) FLC 93-957

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hassell and Hassell & Ors has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons 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 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

INTRODUCTION

1These reasons assume that the reader is familiar with my previous decisions handed down in this matter and in particular, my Reasons delivered [in] April 2020 (April 2020 Reasons);[1] [in] October 2020 (October 2020 Reasons);[2]…

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 Hassell and Hassell & Ors

Details

AGLC: Hassell and Hassell & Ors [2021] FCWA 162
Case: [2021] FCWA 162
Decision Date: 3 SEPTEMBER 2021

CaseChat Overview and Summary

Hassell & Hassell & Ors is a decision in which the Federal Circuit and Family Court of Australia addressed an application for summary dismissal of a claim by a wife seeking relief under section 106B of the Family Law Act 1975. The wife had brought a claim for spousal maintenance and property settlement. The primary legal issue before the court was whether the application for summary dismissal could be granted based on the wife's inability to meet the requirements of section 106B, which pertains to the court's power to make orders for spousal maintenance and property settlement.

The court considered the wife's financial position and her capacity to meet the criteria set out in section 106B of the Family Law Act. The court determined that the wife had not demonstrated a sufficient financial capacity to meet the requirements of the section, primarily due to her limited income and financial resources. The court reasoned that the wife's financial situation did not meet the threshold necessary to warrant the court making an order for spousal maintenance or property settlement. Consequently, the court dismissed the wife's claim for summary dismissal. The court emphasised that each case under section 106B must be assessed on its own facts, and the decision was made based on the specific circumstances of the wife in this case.

Orders