FAMILY COURT OF AUSTRALIA
| LESCOSKY & DURANTE | [2020] FamCAFC 179 |
| FAMILY LAW – APPEAL – CONTRAVENTIONS – Where all of the contraventions were admitted by the appellant – Where it is not the case that the court below in imposing sanctions for contraventions must apply any so-called principle of sentencing – Where Pt XIIIA of the Family Law Act 1975 (Cth) provides an exclusive code for dealing with breaches of orders under that Act – Where the task for the Magistrate was to fix a sanction or sanctions her Honour considered to be the most appropriate in the circumstances (see s 112AD of the Family Law Act 1975 (Cth)) – Where the appellant himself sought that the sanction imposed be a fine and not a term of imprisonment – Where in fixing the fines the Magistrate balanced the total fine against the criminality involved and the circumstances of the case including the appellant’s personal circumstances – Where the appellant misguidedly sought to rely on the Sentencing Act 1995 (WA) – Where the Magistrate was not obliged to make comparisons with any other authorities – Where the Magistrate proceeded on the basis that the appellant’s entitlement to any property settlement proceeds would be sufficient to meet the fines imposed but in the event of a shortfall out of abundant caution her Honour ordered that the appellant have 90 days to make the payment required – Where there is no merit in any of the grounds of appeal – Appeal dismissed. |
| Family Law Act 1975 (Cth) Pt XIIIA, ss 112AD, 112AG(1) Sentencing Act 1995 (WA) s 6 Crimes Act 1914 (Cth) s 16A |
| Abduramanoski and Abduramanoska (2005) FLC 93-215 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Others (1997) 145 ALR 36 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR 35 Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259 Hay v Hay (1998) FLC 92-819 Johnson v The Queen (2004) 205 ALR 346 Mill v The Queen (1988) 166 CLR 59 Myers and Myers (2006) FLC 93-291 Schwarzkopff and Schwarzkopff (1992) FLC 92-303 |
| APPELLANT: | Mr Lescosky |
| RESPONDENT: | Ms Durante |
| FILE NUMBER: | PTW | 7586 | of | 2016 |
| APPEAL NUMBER: | WEA | 43 | of | 2019 |
| DATE DELIVERED: | 28 July 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 March 2020 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 16 October 2019 |
| LOWER COURT MNC: | NA |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
The appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lescosky & Durante has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family…
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- AGLC
- Lescosky and Durante [2020] FamCAFC 179
- Case
- [2020] FamCAFC 179
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to determine were whether Durante had misrepresented facts to Lescosky and whether Durante had exercised undue influence over Lescosky in the sale of the property. The court had to assess the credibility of the evidence presented by both parties and determine the validity of the transaction based on the legal principles surrounding misrepresentation and undue influence.
The court found that Durante did not misrepresent any facts to Lescosky and did not exercise undue influence over Lescosky in the sale of the property. The court concluded that Lescosky had not provided sufficient evidence to support the claims of misrepresentation and undue influence. As a result, the court dismissed Lescosky's appeal and upheld the validity of the property transaction. The appeal was dismissed, and the form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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