Nicholl and Ingram - [2016] FCCA 1412

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICHOLL & INGRAM

[2016] FCCA 1412

Catchwords:
FAMILY LAW − Property orders made without the husband served − whether orders should be set aside or varied pursuant to s.79A Family Law Act1975 (Cth) − whether any different orders should be made following hearing.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79A, 106A(1)

Applicant:

MR NICHOLL

Respondent:

MS INGRAM

File Number:	DGC 2134 of 2013
Judgment of:	Judge Phipps

Hearing date:

16 February 2016

Date of Last Submission:

16 February 2016

Delivered at:

Dandenong

Delivered on:

10 June 2016

REPRESENTATION

The Applicant:

Appearing on their own behalf

The Respondent:

Appearing on their own behalf

Solicitors for the
Independent Children’s Lawyer:

Ms Christides

Solicitors for the
Independent Children’s Lawyer:

Taft Lawyers

ORDERS

That the order made on 9 December 2013 in the Federal Circuit Court of Australia at Dandenong (“the 9 December order”) is varied as follows:
a)Paragraph 8 is discharged; and
b)The husband sign all documents and do all things necessary to remove the caveat lodged in his name over the real property known as and situate at Property S, being the land in certificate of title Volume (omitted) Folio (omitted).
That pursuant to s.106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit Court of Australia at Dandenong is appointed to do all acts and things necessary to give validity to any documents the husband is required to execute by these orders.
Otherwise the 9 December 2013 order remains in full force and effect.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2134 of 2013

MR NICHOLL

Applicant

And

MS INGRAM

Respondent

REASONS FOR JUDGMENT

The proceedings concern both property and children. This final hearing concerns only property.
The children are X born (omitted) 2008 and X born (omitted) 2010. They live with the respondent wife. An order of 16 February 2016 provides for them to spend supervised time with the father at a Children’s Contact centre. The children’s orders are adjourned for mention on 22 September 2016.
Procedurally, the situation is unusual. The wife filed an Initiating Application on 2 August 2013 seeking both children’s and property orders. The parties separated on 4 April 2011 and in her supporting affidavit the wife deposed to last seeing the respondent on 31 July 2012 in the Magistrates Court of Victoria at Dandenong. This was the date of the hearing of the wife’s application for a Family Violence Intervention Order against the husband. She said the husband made a phone call to her on 28 August 2012. She had no knowledge of his whereabouts.
The father was assessed for child-support and I ordered that the Initiating Application and supporting material be posted to the Registrar of the Child Support Agency with a request that they be posted to the husband at the address known to the…

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 Nicholl and Ingram

Details

AGLC: Nicholl and Ingram [2016] FCCA 1412
Case: [2016] FCCA 1412
Decision Date: 10 June 2016

CaseChat Overview and Summary

The Federal Circuit Court of Australia, presided over by Judge Phipps, considered an application to vary an earlier order concerning property. The dispute involved the husband's caveat lodged over a real property, identified as Property S, which the wife sought to have removed.

The central legal issue before the Court was whether to vary the existing property settlement orders to facilitate the removal of the husband's caveat. Specifically, the Court had to determine if it possessed the power to discharge a specific paragraph of the previous order and compel the husband to take all necessary steps to remove the caveat, including signing relevant documents.

Judge Phipps reasoned that the Court had the authority under section 106A(1) of the *Family Law Act 1975* (Cth) to make orders that a Registrar could execute documents on behalf of a party who failed to comply. This power was invoked to ensure the effective removal of the caveat. The Court ordered that the previous order of 9 December 2013 be varied by discharging paragraph 8 and by requiring the husband to sign all necessary documents to remove the caveat lodged over Property S. To ensure compliance, a Registrar of the Federal Circuit Court was appointed to perform any acts necessary to give validity to documents the husband was required to execute. The remainder of the 9 December 2013 order was to remain in full force and effect.

Orders

Orders of the court

That the order made on 9 December 2013 in the Federal Circuit Court of Australia at Dandenong (“the 9 December order”) is varied as follows:

a) Paragraph 8 is discharged; and

b) The husband sign all documents and do all things necessary to remove the caveat lodged in his name over the real property known as and situate at Property S, being the land in certificate of title Volume (omitted) Folio (omitted).

That pursuant to s.106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit Court of Australia at Dandenong is appointed to do all acts and things necessary to give validity to any documents the husband is required to execute by these orders.

Otherwise the 9 December 2013 order remains in full force and effect.

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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