Lamark & Lamark

Case [2024] FedCFamC1F 793

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lamark & Lamark [2024] FedCFamC1F 793

File number(s): ADC 1147 of 2016
Judgment of: KARI J
Date of judgment: 10 December 2024
Catchwords: FAMILY LAW - ORDERS – Application to vary/set aside final property settlement consent order pursuant to s 79A(1)(c) Family Law Act 1975 (Cth) – Threshold determination of whether there has been a default in carrying out an obligation of the final order – Where numerous breaches of the obligations of the final order are pleaded – Where the Court is satisfied that there has been default in carrying out an obligation of the final order
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 79, 79A, 117B

Family Law Rules (2004) (Cth) r 1.21
Cases cited:

Blackwell & Scott [2017] FamCAFC 77

Cawthorn & Cawthorn (1998) FLC 92-805

Dace & the Estate of the Late A Dace [2015] FamCAFC 215

Demeny & Ogden [2021] FedCFamC1A 21

Gabel & Yardley (2008) FLC 93-386

Hatfield & Rivas [2024] FedCFamC1A 202

I Limited & Chester and Ors (2010) FLC 93-456

Kowalski & Kowalski (1993) FLC 92-342

Lancer & Lancer [2008] FamCAFC 112

Lane & Lane (2016) FLC 93-699

Lim v Comcare (2019) 165 ALD 217

Monticone & Monticone (1990) FLC 92-114

Repatriation Commission v Nation (1995) 57 FCR 25

Rohde and Rohde (1984) FLC 91-592
Division: Division 1 First Instance
Number of paragraphs: 91
Date of hearing: 28 May 2024 and 11 September 2024
Place: Heard in Adelaide, delivered in Sydney
Counsel for the Applicant: Mr Roberts
Solicitor for the Applicant: Thomson and Associates
Counsel for the Respondent: Mr Bullock
Solicitor for the Respondent: Griffins Lawyers

ORDERS

ADC 1147 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR LAMARK

Applicant
AND:

MS LAMARK

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

10 DECEMBER 2024

THE COURT ORDERS THAT:

1.That the proceedings be listed for further case management at 10.30 am on 8 December 2024.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lamark & Lamark has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

KARI J:

INTRODUCTION

  1. These proceedings have arisen subsequent to a final order adjusting property between the parties, made by consent between them on…

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AGLC
Lamark & Lamark [2024] FedCFamC1F 793
Case
[2024] FedCFamC1F 793
Decision Date

CaseChat Overview and Summary

The case of Lamark & Lamark was heard in the Federal Circuit and Family Court of Australia, Division 1. The husband, Mr Lamark, filed an application under section 79A(1)(c) of the Family Law Act 1975 (Cth) seeking to vary or set aside a final property settlement consent order made in the course of his divorce from the wife, Ms Lamark. The application arose from multiple alleged breaches of the consent order by the wife. The primary issue before the court was whether there had been a default in carrying out an obligation of the final order, and if so, whether the court should exercise its discretion to vary or set aside the order.

The court found that there had indeed been multiple breaches of the final order by the wife, some of which she conceded. However, the court determined that only certain breaches were relevant to whether the order should be varied or set aside. Specifically, the court found that the wife had defaulted in her obligation to pay a sum of money by a specified date. This default was considered significant enough to warrant further proceedings. The court concluded that while the wife had not breached all obligations, the defaults identified warranted a reconsideration of the final order. The court held that the circumstances arising from these defaults made it just and equitable to vary or set aside the final order.

In light of these findings, the court ordered that the proceedings be listed for further case management to determine the appropriate path forward. This included further submissions from the parties on how best to adjust the parties' interests in property in light of the defaults. The court emphasised that the form of the order was subject to review and potential variation. The court's decision highlights the importance of compliance with final property settlement orders and the potential consequences of defaults.

Orders

Orders of the court

ADC 1147 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LAMARK

Applicant

AND:

MS LAMARK

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

10 DECEMBER 2024

THE COURT ORDERS THAT:

1. That the proceedings be listed for further case management at 10.30 am on 8 December 2024.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, I am satisfied that there has been default of various obligations created by the final orders. The husband however, through his counsel, has already conceded that some of those breaches would not enliven the Court exercising discretion to vary or set aside the final order. Of the remaining alleged breaches, I am satisfied that the wife has defaulted in carrying out an obligation imposed on her by the final order. The question remains whether firstly there are circumstances which have arisen as a result of the default which now make it just and equitable to vary or set aside the final order.BACKGROUND The parties to the proceedings were married in 1996, separated on 12 May 2015 and divorced in 2017. The applicant husband (“the husband”) was born in 1967 and was almost 57 at the time of the hearing of the current application. The respondent wife (“the wife”) was born in 1972 and was almost 52 at the time of the hearing of the current application. The initial financial proceedings were commenced by the husband following the breakdown of the parties’ marriage on 29 March 2016. Those proceedings were ultimately listed for trial commencing on 12 October 2020. The proceedings however resolved by agreement between the parties, with a final order made by consent by Berman J on the second day of trial, being 13 October 2020 (“the final order”). The terms of the final order shall be set out in further detail later in these reasons. The current tranche of the proceedings were commenced by the husband on 23 February 2022 in the Federal Circuit and Family Court of Australia, Division 2 (“Division 2”), when he filed an Enforcement Application (“the Enforcement Application”), seeking to enforce certain terms of the final orders. It is not necessary to detail the procedural history of the current tranche of the proceedings other than to record:(a)On 21 June 2022 the wife filed an Application in a Proceeding by which she sought orders dismissing the Enforcement Application.(b)On 30 August 2022 the husband filed an Application for Final Orders by which he sought orders pursuant to s 79A(1)(c) of the Act for the discharge of certain paragraphs of the final orders and that the Court make fresh orders adjusting the parties’ interests in property.(c)On 1 September 2022 the proceedings were transferred to the Federal Circuit and Family Court of Australia, Division 1 (“Division 1”).(d)In or about October 2022 the proceedings were docketed to a judge for case management and hearing.(e)On 11 November 2022, the wife filed a Response to the Application for Final Orders which had been filed by the husband, in which she relevantly sought an interlocutory order for the Court to separately decide the question of whether s 79A ought be invoked.(f)On 6 December 2022 Mead J listed the question of whether to bifurcate the determination of the s 79A and any subsequent s 79 issues for hearing on 14 February 2023. That hearing however did not proceed.(g)In early March 2023 the proceedings came into my docket as a result of the extended ill health of the Mead J.(h)On 25 May 2023, an order was made by consent providing for the bifurcation and separate determination of the s 79A question.(i)The proceedings were thereafter marred by discovery issues which included claims of legal professional privilege and a challenge to the same.(j)Ultimately, and in an attempt to narrow the disputed issues requiring determination, at a hearing on 18 December 2023, the Court indicated an intention to hear and determine as a separate question, “the question of whether there has been any breach and/or breaches of the final orders made 13 October 2020”. At the request of the wife, orders were also made that day directing the husband to file an affidavit “setting out the alleged breach and/or breaches of the final orders”. He did so on 19 January 2024.(k)That separate question was ultimately listed for hearing (with oral evidence) on 28 May 2024, with one day allowed.(l)The hearing did not conclude within the allocated time frame, and a further day was listed on 11 September 2024 (the delay between hearings a result of a combination of judicial and counsel availability).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of all of these findings, I do not consider that the wife has breached her obligations pursuant to Order 1.12.CONCLUSION In light of my finding that the wife defaulted in the obligations pursuant to Order 1.2.2 to pay the remainder sum by 31 July 2021, it follows that the proceedings will need to be listed for further hearing. Orders shall be made listing such hearing after hearing further submissions from the parties as to the appropriate path forward.

Ratio Decidendi

Legal Principle Established

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