Kenyon and Hampton - [2017] FCCA 2730

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENYON & HAMPTON

[2017] FCCA 2730

Catchwords:
FAMILY LAW – Refusal to set aside consent orders under section 79A(1)(c).

Legislation:

Family Law Act 1975, s.79A(1)(c)

Blackwell & Scott [2017] FamCAFC 77
Monticone & Monticone [1989] FamCA 92

Applicant:

MS KENYON

Respondent:

MR HAMPTON

File Number:

SYC 860 of 2014

Judgment of:

Judge Henderson

Hearing date:

13 October 2017

Date of Last Submission:

13 October 2017

Delivered at:

Sydney

Delivered on:

13 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr Gardiner of Counsel

Counsel for the Respondent:

Mr Jones of Counsel

ORDERS

The wife’s application to set aside the consent orders made 26 January 2016 is dismissed
Reserve the issue of costs of this application and the wife’s enforcement application.

IT IS NOTED that publication of this judgment under the pseudonym Kenyon & Hampton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 860 of 2014

MS KENYON

Applicant

And

MR HAMPTON

Respondent

REASONS FOR JUDGMENT

The matter of Kenyon & Hampton is an application by the wife seeking to set aside orders entered into by consent on 20 January 2016, due to, the wife says, the husband’s default in complying strictly with the terms of those orders. That application was resisted by the husband.
Mr Gardiner of counsel represented the wife and Mr Jones of counsel represented the husband.
The material I read for the Wife was;
a.affidavit and financial statement filed 18 September 2017
b.case outline
c.initiating application filed 4 July 2017 and an application in a case seeking enforcement of orders filed 12 April 2017.
d.The wife tendered one exhibit. Her memorandum of costs, which caused a sharp intake of breath. Her costs for pursuing the default application against her husband is $78,933, for pursuing her 79A application $38,966.
The material I read for the Husband was;
a.An affidavit, financial statement and response filed 18 September 2017
b.Exhibit 1- exhibits to his affidavit
c.Exhibit 2 - the Husband’s memo of costs which are to date $61,652.
The total available to the parties if the wife is successful is the proceeds of sale of properties the husband owned in Property A1 & A2, held on trust and amounting to $225,541. The parties have spent almost all of the monies held in trust on legal fees. That is a travesty.
The wife’s application that I set aside these orders is made pursuant to section 79A(1)(c) of the Family Law Act 1975. Her application was doomed to failure for the following reasons;
Section 79A(1)(c) is as follows:
79A(1) Where, on application by a person affected by an order made by a Court under section 79 in property proceedings, the Court is satisfied that:
c) the person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or…

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 Kenyon and Hampton

Details

AGLC: Kenyon and Hampton [2017] FCCA 2730
Case: [2017] FCCA 2730
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the matter of *Kenyon and Hampton*, heard before Judge Henderson, the wife sought to set aside consent orders previously made on 26 January 2016. The specific nature of the dispute leading to the original consent orders and the wife's grounds for seeking to set them aside are not detailed in the provided text.

The primary legal issue before the court was whether the wife had established sufficient grounds to justify setting aside the existing consent orders. This required the court to consider the legal principles governing the setting aside of consent orders in family law proceedings.

Judge Henderson dismissed the wife's application to set aside the consent orders. While the reasoning behind this decision is not elaborated upon in the provided text, the outcome indicates that the wife failed to satisfy the legal threshold required to overturn the previously agreed-upon orders. The court also reserved the issue of costs relating to both the application to set aside the orders and the wife's enforcement application.

Orders

Orders of the court

The wife’s application to set aside the consent orders made 26 January 2016 is dismissed

Reserve the issue of costs of this application and the wife’s enforcement application.

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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