Joans and Singerson and Anor - [2017] FCWA 29

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: JOANS and SINGERSON & ANOR [2017] FCWA 29

CORAM: DUNCANSON J

HEARD: 15 NOVEMBER 2017 AND WRITTEN SUBMISSIONS RECEIVED 30 NOVEMBER, 22 DECEMBER 2016 AND 16 FEBRUARY 2017

DELIVERED : 3 MARCH 2017

FILE NO/S: PTW 726 of 2011

BETWEEN: MS JOANS
Applicant
AND
MR SINGERSON
First Respondent
AND
MS SINGERSON
Second Respondent

Catchwords:

PROPERTY - Enforcement of orders for property settlement, child support and costs - where the first respondent owns property either jointly or as tenants in common with the second respondent - consideration of impact of orders to enforce upon parties - discretion exercised to enforce

Legislation:

Family Law Act 1975 (Cth) s 105(1), s 106A, s 117B
Child Support (Assessment) Act 1989 (Cth) s 124, s 129
Family Law Rules 2004 (Cth) r 15.47, r 17.03, r 20.07

Category: Not Reportable

Representation:

Counsel:

Applicant: [Ms Kyle]
First Respondent : Self-Represented Litigant
Second Respondent : Mr K Mwende

Solicitors:

Applicant: DCH Legal Group
First Respondent : Self-Represented Litigant
Second Respondent : O'Sullivan Davies

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

Duroux v Martin (1993) FLC 92-432
McMillan & McMillan [2016] FamCA 387
Ramsey & Ramsey (No 2) (1983) FLC 91-323
Ramsey and Ramsey (1983) FLC 91-301
W & W and Anor [2016] FCWA 45

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1By her amended application in a case filed 28 July 2016 the applicant, [Ms Joans] seeks to enforce orders made in proceedings between her and the first respondent [Mr Singerson].

BRIEF BACKGROUND

2The parties separated in 2009.
3On 14 March 2013 Acting Judge Jordan made parenting orders by consent. He also made final property settlement orders and child support orders.
4On 8 September 2015 after an appeal, the Full Court made further property orders.
5The first respondent has a one half interest in property with his sister [Ms Singerson], who is the second respondent. The second respondent was joined to the proceedings as she would be affected by the orders sought by the applicant in relation to properties owned by her and the first respondent.

THE ORDERS SOUGHT

The orders sought by the applicant

6The orders sought by the applicant at the hearing on 15 November 2016 were contained in a minute of proposed enforcement orders filed 8 November 2016. The orders now sought by the applicant are contained in her amended minute of proposed enforcement orders attached to her closing submissions filed 16 February 2017.
7The enforcement orders sought by the applicant are, that within four days from the making of the orders the first respondent pay to the applicant the following:-
(a)$122,093 plus interest on this sum calculated from 29 September 2015; and
(b)$2,060.43; and
(c)$2,200; and
(d)$2,200; and
(e)$4,860 plus interest on this sum calculated from 24 November 2016; and
(f)$5,905 plus interest on this sum calculated from 25 February 2016; and
(g)$10,587 plus interest on this…

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 Joans and Singerson and Anor

Details

AGLC: Joans and Singerson and Anor [2017] FCWA 29
Case: [2017] FCWA 29
Decision Date: 3 MARCH 2017

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Joans and Singerson and Anor was heard. The case involved a dispute over the enforcement of orders for property settlement, child support, and costs. The first respondent owned property either jointly or as tenants in common with the second respondent. The court was tasked with considering the impact of enforcing these orders on the parties involved and exercising its discretion accordingly.

The legal issues before the court included whether the enforcement of the orders for property settlement, child support, and costs should proceed as requested by the applicant. The court had to balance the need to enforce the orders with the potential impact on the respondents, particularly in relation to the property ownership and the financial implications for the first respondent. The court also needed to consider the broader context of family law and the principles of fairness and justice in making its decision.

In reaching its decision, the court carefully considered the evidence and submissions from both parties. The court acknowledged the complexity of the property ownership and the potential financial burden on the first respondent. However, the court found that the applicant had a legitimate claim for enforcement of the orders and that the impact on the first respondent could be mitigated through appropriate measures. The court exercised its discretion to enforce the orders but made specific directions to ensure that the first respondent's position was protected as far as possible. The court's reasoning was grounded in the need to uphold the rights of the applicant while also considering the welfare of the parties involved.

The final orders of the court enforced the orders for property settlement, child support, and costs, with specific directions to mitigate the impact on the first respondent. The court's decision was based on a careful consideration of the legal issues and the broader context of the case, ensuring that justice was served for all parties.

Orders