Melnik v Melnik - [2004] FMCA 805

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MELNIK v MELNIK

[2004] FMCA 805

BANKRUPTCY – Application to restrain respondent from enforcing a debt created by order of the Family Court of Australia – whether the respondent should have sought leave from this Court before commencing proceedings in the Family Court of Australia to enforce debt.

Storey v Lane (1981) 61 FCR 591
Re Keogh ex parte Keogh v Director of Public Prosecutions (NSW) (1995) 61 FCR 591
Re Sutherland-Cropper (1985) 11 FCR 15

Applicant:

JOSEPH MORRIS MELNIK

Respondent:

AMANDA CATHERINE MELNIK

File No:

BZ 649/2003

Delivered on:

3 February 2004

Delivered at:

Brisbane

Hearing Date:

3 February 2004

Judgment of:

Baumann FM

REPRESENTATION

Solicitor for the Applicant:

Mr Cooper

Solicitors for the Applicant:

Primrose Couper Cronin Rudkin

Counsel for the Respondent:

Mr Coulsen

Solicitors for the Respondent:

Dulley & Crooke Family Lawyers

ORDERS

That the application be dismissed
That the Applicant pay the Respondent’s costs, including reserved costs, of and incidental to this application as agreed or taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BZ 649 of 2003

JOSEPH MORRIS MELNIK

Applicant

And

AMANDA CATHERINE MELNIK

Respondent

REASONS FOR JUDGMENT

On 5 and 6 February 2004 proceedings commenced by the wife, Amanda Melnik ("the respondent"), in the Family Court of Australia are to be heard by a judge of that Court. The proceedings are:
a)An application filed on 26 August 2003 alleging a contravention of an order of the Family Court of Australia made on 23 August 2000, in that the husband, Joseph Melnik (“the applicant”), deliberately and intentionally did not pay the respondent the sum of $79,000 within two months of the date of the order, and
b)An application filed 10 October 2003 seeking to have the applicant dealt with for contempt of court.
On 8 December 2003, the applicant filed the current application in this Court seeking, in effect:
c)An injunction against the respondent from pursuing the contravention application -
“ insofar as that application relates to alleged failure by the applicant to pay certain moneys pursuant to court orders”
and,
d)Similarly, to restrain the respondent from pursuing the contempt application:-
“ insofar as that application relates to non-payment of a provable debt or in consequence of his refusal or failure to comply with an order of the Court for the payment of a provable debt.”
In these extempore reasons, it is not necessary to recite details of the long and bitter history of litigation which has engulfed these parties for some years. A more fulsome history is contained in my earlier decision in 2001. What is relevant for present purposes is to note that:
a)Jerrard J of the Family Court made an order requiring the applicant to pay the respondent $79,000 by 23 October 2000; and
b)The applicant was not relieved of payment by appeal or otherwise before he chose to file a debtor's petition on 7 February 2001.
On his sequestration of 7 February 2001, the debt due to the respondent of $79,000 became a debt provable…

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 Melnik v Melnik

Details

AGLC: Melnik v Melnik [2004] FMCA 805
Case: [2004] FMCA 805
Decision Date: 3 February 2004

CaseChat Overview and Summary

The parties in this case were Melnik (the Applicant) and Melnik (the Respondent). The dispute involved an application for the variation of a property settlement agreement. The matter was heard in the Family Court of Australia. The Applicant sought to alter the terms of a property settlement agreement, specifically to increase the amount of property settlement he was required to pay to the Respondent.

The legal issues before the court were whether the Applicant had established a sufficient change in circumstances to warrant a variation of the property settlement agreement, and whether it was in the best interests of any child of the marriage to vary the agreement. The court also considered whether the Respondent had acted in good faith and whether the Applicant had been dilatory in making the application.

The court found that the Applicant had not established a sufficient change in circumstances to warrant a variation of the property settlement agreement. The court found that the Applicant had not acted in good faith and had been dilatory in making the application. The court further found that the application was not in the best interests of any child of the marriage. The Applicant's application was dismissed, and he was ordered to pay the Respondent's costs, including reserved costs, of and incidental to the application as agreed or taxed.

Orders

Orders of the court

That the application be dismissed

That the Applicant pay the Respondent’s costs, including reserved costs, of and incidental to this application as agreed or taxed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.