JANTZEN & LESTER - [2019] FCCA 3117

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANTZEN & LESTER

[2019] FCCA 3117

Catchwords:
FAMILY LAW – Lump sum spousal maintenance – respondent incarcerated for serious drug offences – property of the respondent subject to automatic forfeiture.

Legislation:

Confiscation Act1997 (Vic) ss.14, 16(2A), 20(1B), 36GA
Family Law Act 1975 (Cth) ss.72, 72(1)(a), 72(1)(b), 74, 75(2), 75(2)(l)
75(2)(na), 75(2)(o), 77, 77A, 79C(1), 79C(1A), 80(1)(ba)
Federal Circuit Court Rules 2001 (Cth) r.16.05

Cases cited:

Bevan & Bevan (1995) FLC 92-600

Garston & Yeo (No.2) [2019] FamCAFC 139
Milankov & Milankov (2002) FLC 93-095
Vautin & Vautin (1998) 23 Fam LR 627

Applicant:

MS JANTZEN

Respondent:

MR LESTER

File Number:

MLC 6785 of 2017

Judgment of:

Judge Harland

Hearing date:

8 October 2019

Date of Last Submission:

11 October 2019

Delivered at:

Melbourne

Delivered on:

31 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr Hall

Solicitors for the Applicant:

Tribeca Legal

No appearance by the Respondent

Solicitors acting as amicus:

Ms Tenni of the Office of Public Prosecutions Victoria

ORDERS

The Respondent pay or cause to be paid to the Applicant the sum of $200,000 by way of lump sum spousal maintenance ("the payment").
To the extent necessary in order to secure the payment, IT IS DECLARED pursuant to section 80(1)(ba) of the Family Law Act1975 (Cth) ("the Family Law Act") that the payment be made by way of transfer to the Applicant a sum equivalent to the payment from the balance of proceeds of sale of the real property situated at A Street, Suburb B, (“the A Street, Suburb B property”) in the State of Victoria more particularly described in Certificate of Title Volume … Folio ….
The payment be made from the balance of proceeds of sale of the real property situated at A Street, Suburb B, in the State of Victoria more particularly described in Certificate of Title Volume … Folio …, such proceeds being held by the Asset Confiscation Operations department ("ACO") in the Department of Justice for the State of Victoria on trust and restrained pursuant to a Serious Drug Offence Restraining Order made by His Honour Judge Dyer made on 13 November 2018 pursuant to the Confiscation Act 1997 (Vic) in proceeding number … in the County Court of Victoria at Melbourne.
The payment be made to the Applicant's solicitor Mr Philip Tribe, of Tribeca Legal, 166 Victoria Parade, East Melbourne Vic 3002.
A copy of this Order be served forthwith on the Director of Public Prosecutions for Victoria ("the DPP") such service to be made by service upon Ms. Tegan Tenni, Senior Solicitor, Proceeds of Crime, Office of Public Prosecutions Victoria, PO Box 13085 Melbourne, Victoria, 8010 and by email to Tegan.Tenni@opp.vic.gov.au.
Liberty to apply on short notice to the DPP be reserved to the Applicant in respect of compliance with this order.
That Chambers cause a copy of these reasons to be provided to the DPP.

IT IS NOTED that publication of this judgment under the pseudonym Jantzen & Lester is approved pursuant to…

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 JANTZEN & LESTER

Details

AGLC: Jantzen and Lester [2019] FCCA 3117
Case: [2019] FCCA 3117
Decision Date: 31 October 2019

CaseChat Overview and Summary

In Jantzen & Lester, heard by Judge Harland, the applicant sought a lump sum spousal maintenance payment from the respondent. The respondent was incarcerated for serious drug offences, and his property was subject to an automatic forfeiture order under Victorian legislation.

The central legal issue before the court was whether it had the power to order spousal maintenance to be paid from property that was subject to a restraining order made under the *Confiscation Act 1997* (Vic) due to the respondent's serious drug offences. The court was required to consider the interplay between the spousal maintenance provisions of the *Family Law Act 1975* (Cth) and the forfeiture provisions of the Victorian Act.

Judge Harland reasoned that section 80(1)(ba) of the *Family Law Act* permitted the court to make orders for the payment of spousal maintenance by way of transfer of property, even if that property was subject to other legal encumbrances or restraints. The court found that the purpose of spousal maintenance was to ensure a party was not left in financial hardship, and this purpose could be fulfilled by directing payment from the proceeds of the respondent's forfeited property. The court acknowledged the existence of the restraining order but determined that it did not preclude the Family Court from making an order for spousal maintenance, particularly given the specific wording of section 80(1)(ba).

The court ordered the respondent to pay the applicant $200,000 by way of lump sum spousal maintenance. To secure this payment, the court declared, pursuant to section 80(1)(ba) of the *Family Law Act*, that the payment be made from the balance of the proceeds of sale of the respondent's property located at A Street, Suburb B, Victoria. These proceeds were held by the Asset Confiscation Operations department and were subject to a restraining order. The payment was to be made to the applicant's solicitor, and the Director of Public Prosecutions for Victoria was to be served with a copy of the order. Liberty to apply was reserved to the applicant in respect of compliance.

Orders

Orders of the court

The Respondent pay or cause to be paid to the Applicant the sum of $200,000 by way of lump sum spousal maintenance ("the payment").

To the extent necessary in order to secure the payment, IT IS DECLARED pursuant to section 80(1)(ba) of the Family Law Act 1975 (Cth) ("the Family Law Act") that the payment be made by way of transfer to the Applicant a sum equivalent to the payment from the balance of proceeds of sale of the real property situated at A Street, Suburb B, (“the A Street, Suburb B property”) in the State of Victoria more particularly described in Certificate of Title Volume … Folio ….

The payment be made from the balance of proceeds of sale of the real property situated at A Street, Suburb B, in the State of Victoria more particularly described in Certificate of Title Volume … Folio …, such proceeds being held by the Asset Confiscation Operations department ("ACO") in the Department of Justice for the State of Victoria on trust and restrained pursuant to a Serious Drug Offence Restraining Order made by His Honour Judge Dyer made on 13 November 2018 pursuant to the Confiscation Act 1997 (Vic) in proceeding number … in the County Court of Victoria at Melbourne.

The payment be made to the Applicant's solicitor Mr Philip Tribe, of Tribeca Legal, 166 Victoria Parade, East Melbourne Vic 3002.

A copy of this Order be served forthwith on the Director of Public Prosecutions for Victoria ("the DPP") such service to be made by service upon Ms. Tegan Tenni, Senior Solicitor, Proceeds of Crime, Office of Public Prosecutions Victoria, PO Box 13085 Melbourne, Victoria, 8010 and by email to Tegan.Tenni@opp.vic.gov.au.

Liberty to apply on short notice to the DPP be reserved to the Applicant in respect of compliance with this order.

That Chambers cause a copy of these reasons to be provided to the DPP.

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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