JACOBOVA & STEIN - [2009] FamCA 1105

FAMILY COURT OF AUSTRALIA

JACOBOVA & STEIN

[2009] FamCA 1105

FAMILY LAW – CONTEMPT - Contempt by disobedience of an order of the court – flagrant challenge to the authority of the court – capacity to pay as necessary element of an allegation that non-payment constitutes a contempt of court – no case to answer- application dismissed

Child Support (Assessment) Act 1989 (Cth) s 100(2), s 118(1), s 123, s 124
Family Law Act 1975 (Cth) s 112AD, s 112AP

Basic v Newman (1991) 104 FLR 279
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell (2000) FLC 93-053; [2000] FamCA 313
Hay and Hay(1998) FLC 92-819; [1998] FamCA 95
Ibbotson v Wincen, In the Marriage of (1994) FLC 92-496
In the Marriage of English [1986] FLC 91-729
Kendling v Kendling [2008] FamCAFC 154
Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435
Re F Litigants in person guidelines (2001) FLC 93-072
Witham v Holloway (1995) 183 CLR 525

APPLICANT:

Ms Jacobova

RESPONDENT:

Mr Stein

FILE NUMBER:

MLC

13605

2007

DATE DELIVERED:

29 July 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

24 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms M L Smallwood

SOLICITOR FOR THE APPLICANT:

Lewenberg and Lewenberg

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

(i)That the wife’s application filed on 11 February 2009 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Jacobova & Stein

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 13605 of 2007

Ms Jacobova

Applicant

And

Mr Stein

Respondent

REASONS FOR JUDGMENT

The wife’s application that the husband be dealt with for contempt of orders of this Court was filed on 11 February 2009.
The relevant Order concerns the child … born in November 2003 and was made in proceedings between the husband and the wife, by consent, on 21 November 2008. Inter alia, the Order provides as follows:-
That pursuant to s.123 of the Child Support (Assessment) Act the Husband pay half of all tuition fees and charges of the school for the Child incurred by her attendance at [L School] (or any other agreed private school), as and when they fall due, together with half of all books, school uniforms and any ancillary expenses relating to the Child’s schooling upon production by the Wife of the invoices for same.
The wife’s application was first returnable on 13 March 2009. Upon the husband’s failure to appear in court on that date, the matter was adjourned until 22 June 2009.
The wife is represented by Miss Smallwood, of counsel. The husband appears on his own behalf. The matter was stood down for most of the morning whilst the husband consulted the duty solicitor. The husband applied for an adjournment of the proceedings to enable him to retain a lawyer. I dismissed that application…

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: [2009] FamCA 1105
Decision Date: 29 July 2009

CaseChat Overview and Summary

In the matter of *Jacoba v Stein*, heard before Bennett J, the wife sought to set aside an order made by consent in 2007, which had approved a financial agreement between the parties. The dispute concerned the validity and enforceability of this financial agreement, which the wife alleged was vitiated by duress and undue influence. The husband sought to uphold the 2007 order and the financial agreement it incorporated.

The primary legal issue before the court was whether the wife had established sufficient grounds to set aside the consent order and the underlying financial agreement. Specifically, the court had to determine if the wife's will was overborne by duress or undue influence at the time she entered into the financial agreement, thereby rendering it voidable. The court also considered the principles governing the setting aside of consent orders, particularly in circumstances where one party alleges they did not fully understand the implications of the agreement.

Bennett J found that the wife had failed to demonstrate that her consent to the financial agreement was not freely given. Her Honour considered the evidence presented by both parties regarding the circumstances surrounding the negotiation and execution of the agreement. The court applied the legal principles relating to duress and undue influence, requiring proof that the wife's volition was overcome by illegitimate pressure or improper conduct. Her Honour concluded that the evidence did not support the wife's claims and that she had entered into the agreement voluntarily, with a sufficient understanding of its terms and consequences.

Consequently, the wife’s application to set aside the consent order and financial agreement was dismissed.

Orders

Orders of the court

(i) That the wife’s application filed on 11 February 2009 is 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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