Kitt and Kitt - [2017] FCCA 1996

FEDERAL CIRCUIT COURT OF AUSTRALIA

KITT & KITT

[2017] FCCA 1996

Catchwords:
FAMILY LAW – Property – application under s.79A of Family Law Act1975, to set aside consent property adjustment orders made at a Conciliation Conference – wife’s failure to disclose redundancy payment received prior to the Conciliation Conference – orders set aside.

Legislation:

Family Law Act 1975, s.79A

Cases cited:

Lane & Lane [2016] FamCAFC 53

Waterman & Waterman [2017] FamCAFC 23
Pearce & Pearce [2016] FamCAFC 14
Briese & Briese (1986) FLC 91-713
Morrison & Morrison (1995) FLC 92-573
Livesey v Jenkins [1985] AC 424
Suiker and Suiker (1993) FLC 92-436
Harris v Caladine (1991) 172 CLR 84
Gebert and Gebert (1990) FLC 92-137

Applicant:

MR KITT

Respondent:

MS KITT

File Number:

PAC 5759 of 2014

Judgment of:

Judge Newbrun

Hearing date:

10 February 2017

Date of Last Submission:

28 August 2017

Delivered at:

Parramatta

Delivered on:

28 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Kumar

Solicitors for the Applicant:

Sohan Singh & Associates

Counsel for the Respondent:

Ms Beck

Solicitors for the Respondent:

Stojanovic Solicitors

ORDERS

The consent orders made on 4 November 2015 in the Family Court of Australia are set aside.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5759 of 2014

MR KITT

Applicant

And

MS KITT

Respondent

REASONS FOR JUDGMENT

Introduction and context

The husband seeks to set aside the consent orders made on 4 November 2015 in the Family Court of Australia at Parramatta, pursuant to s79A(1)(a) of the Family Law Act1975, Cth (“the Act”). The wife opposes such application.
The consent orders were entered into at a Conciliation Conference. (The court notes that at the s79A hearing, the husband only sought to set aside consent orders 3 and 6 of the above consent orders. However, at the mention of the proceedings on 28 August 2017 he contended, through his counsel, that if the court proposed to exercise its discretion under s79A to set aside any of the above consent orders, then all of those consent orders should be set aside. The wife also adopted this position, as an alternative position.)
Order 3 of the consent orders of 4 November 2015 provided that the husband pay to the wife the sum of $270,000.
Order 6 provided a mechanism for the wife to be paid the said sum of $270,000 in the event that the husband was unable to pay her this sum within three months of the date of the consent orders.
The Court notes that the balance of the consent orders of 4 November 2015, inter alia, provided that the husband:
i)transfer to the wife his interest in the former matrimonial home at Property B, and that he discharge any liability in relation to that property;
ii)the wife to transfer to the husband her interest in three separate pieces…

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 Kitt and Kitt

Details

AGLC: Kitt and Kitt [2017] FCCA 1996
Case: [2017] FCCA 1996
Decision Date: 28 August 2017

CaseChat Overview and Summary

The parties, Kitt and Kitt, brought an application before Judge Newbrun of the Family Court of Australia seeking to set aside consent orders made on 4 November 2015. The precise nature of the dispute leading to the original consent orders is not detailed, but the application focused on whether those orders should be vacated.

The central legal issue before the court was whether the existing consent orders, made by agreement between the parties, should be set aside. This required the court to consider the grounds upon which consent orders in family law matters can be discharged or varied, particularly where one party seeks to resile from the agreement.

Judge Newbrun's reasoning, as indicated by the orders made, was that the consent orders of 4 November 2015 were indeed to be set aside. While the specific legal principles or factual findings that led to this conclusion are not elaborated in the provided text, the outcome signifies that the court found sufficient grounds to invalidate the previously agreed-upon orders.

Consequently, the court ordered that the consent orders made on 4 November 2015 in the Family Court of Australia be set aside.

Orders

Orders of the court

The consent orders made on 4 November 2015 in the Family Court of Australia are set aside.

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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