McGrath and McGrath and Ors - [2018] FamCA 667

FAMILY COURT OF AUSTRALIA

MCGRATH & MCGRATH & ORS

[2018] FamCA 667

FAMILY LAW – CONSENT ORDERS – enforcement application where the construction of a consent order was in issue – jurisdiction - 79A – where parties have agreed the wording of an order in the event that either party succeeds – where consent order was ambiguous – final order varied.

FAMILY LAW – WASTED COSTS –issue of whether legal practitioners ought to be restrained from charging costs for the proceedings may be considered subject to practitioners being accorded procedural fairness.

Family Law Act 1975 (Cth)

DJL v The Central Authority (2000) FLC 93-105 [25]
Apoda & Apoda (2013) FamCA 218

Shout Rocks Cafes v the City of Port Philip (2018) VSC 120

APPLICANT:

Ms McGrath

RESPONDENT:

Mr McGrath

SECOND RESPONDENT:

McGrath Pty Ltd

THIRD RESPONDENT

B Pty Ltd

FOURTH RESPONDENT

C Pty Ltd

FILE NUMBER:

MLC

814

2016

DATE DELIVERED:

31 August 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

27 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glick QC with Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr T. North SC with Mr Wodak

SOLICITOR FOR THE RESPONDENT:

Foster Nicholson

Orders

Paragraph 16(b) of the Order made 1 September 2017 be set side and in lieu thereof be inserted:
The parties do all acts and things necessary to ensure that with respect to the personal Notices of Assessment issued to the husband and the wife for each of the years 2015, 2016 and 2017, the husband and the wife cause to be paid such amount (if any) of the taxation liability described as “outcome of this notice” in each Notice of Assessment that was outstanding as at 1 September 2017 in the proportions:
(a) 55 per cent to the husband; and
(b) 45 per cent to the wife.
I adjourn the issue of costs to 5 October 2018 at 10.00 a.m. or such other agreed date as is convenient to counsel and can be settled with my Associate.
The applications of the parties be otherwise dismissed save as to costs.

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 McGrath & McGrath 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 Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 814 of 2016

Ms McGrath

Applicant

And

Mr McGrath

Respondent

And

McGrath Pty Ltd
Second Respondent

And

B Pty Ltd
Third Respondent

And

C Pty Ltd
Fourth Respondent

REASONS FOR JUDGMENT

Introduction

This matter comes…

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 McGrath and McGrath and Ors

Details

AGLC: McGrath and McGrath and Ors [2018] FamCA 667
Case: [2018] FamCA 667
Decision Date: 31 August 2018

CaseChat Overview and Summary

In the matter of *McGrath and McGrath and Ors*, Bennett J of the Family Court of Australia considered an application concerning the construction and enforcement of consent orders made on 1 September 2017. The dispute arose from an ambiguity within the consent order, leading to differing interpretations by the parties regarding their respective liabilities for outstanding taxation liabilities.

The primary legal issue before the court was whether the existing consent order, specifically paragraph 16(b), was ambiguous and, if so, how it should be construed and varied to reflect the parties' intentions. A secondary issue, though not ultimately determined in the provided text, concerned the potential for wasted costs orders against legal practitioners, subject to procedural fairness.

Bennett J determined that the original consent order was indeed ambiguous. The court reasoned that to give effect to the parties' agreement, the order needed to be clarified. The court applied principles of statutory interpretation and the court's power to vary consent orders where ambiguity leads to an unintended or unworkable outcome. The court's reasoning focused on ensuring the practical implementation of the parties' agreed division of taxation liabilities.

Consequently, the court ordered that paragraph 16(b) of the consent order be set aside and replaced with new wording. This variation stipulated that the parties were to ensure payment of any outstanding taxation liability as described in their Notices of Assessment for the years 2015, 2016, and 2017, as at 1 September 2017, in the proportions of 55 per cent to the husband and 45 per cent to the wife. The issue of costs was adjourned, and the parties' other applications were dismissed.

Orders

Orders of the court

Paragraph 16(b) of the Order made 1 September 2017 be set side and in lieu thereof be inserted:

The parties do all acts and things necessary to ensure that with respect to the personal Notices of Assessment issued to the husband and the wife for each of the years 2015, 2016 and 2017, the husband and the wife cause to be paid such amount (if any) of the taxation liability described as “outcome of this notice” in each Notice of Assessment that was outstanding as at 1 September 2017 in the proportions:

(a) 55 per cent to the husband; and

(b) 45 per cent to the wife.

I adjourn the issue of costs to 5 October 2018 at 10.00 a.m. or such other agreed date as is convenient to counsel and can be settled with my Associate.

The applications of the parties be otherwise dismissed save as to costs.

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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