Pease and Hatch - [2014] FCCA 281

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEASE & HATCH

[2014] FCCA 281

Catchwords:
FAMILY LAW – Section 79A Application – consideration of delay in commencement of proceedings – the intersection of statutory remedy and equity.

Legislation:

Family Law Act 1975, s.79A

Cases cited:
Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362
Lancer & Lancer [2008] FamCAFC 112
Holland v Holland (1982) FLC 91-243
Gebert & Gebert (1990) FLC 92-137
Suiker & Suiker (1993) FLC 92-436
Crawley v Short [2009] NSWCA 410
Savage v Lunn [1998] NSWCA 203
Savage v Lunn (No 2) [1998] NSWCA 204
Lindsay Petroleum v Hurd (1874) LR 5 PC 221
Baburin v Baburin (No.2) [1991] 2 Qd R 240

Applicant:

MR PEASE

Respondent:

MS HATCH

File Number:

SYC 2769 of 2013

Judgment of:

Judge Myers

Hearing date:

27 November 2013

Date of Last Submission:

18 December 2013

Delivered at:

Newcastle

Delivered on:

21 February 2014

REPRESENTATION

Counsel for the Applicant:

Mr Othen

Solicitors for the Applicant:

Sharee Cassel & Associates

Counsel for the Respondent:

Mr Davies

Solicitors for the Respondent:

Rice More & Gibson Solicitors

ORDERS

The orders made in the Local Court at Armidale on 22 December 2009 in respect of proceedings numbered (omitted) be set aside.
That the proceedings be listed for direction on a date to be advised by the Court in respect of the determination of the Applicant’s application for orders pursuant to section 79 of the Family Law Act.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

SYC 2769 of 2013

MR PEASE

Applicant

And

MS HATCH

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings commenced by the applicant Mr Pease (hereinafter referred to as “the applicant”) relying upon the provisions of s.79A of the Family Law Act seeking to set aside orders made by the Local Court at Armidale on 22 December 2009 pursuant to section 79 of the Family Law Act for a property settlement by consent.
In addition to the orders seeking to set aside the orders made in the Local Court, the applicant seeks orders for a property settlement whereby the respondent pay to the applicant the sum of $500,000.00 and then consequential enforcement orders if such payment is not made.
The respondent in the proceedings Ms Hatch (hereinafter referred to as “the respondent”) seeks orders for the dismissal of the applicant’s application; that the orders made by the Local Court at Armidale be confirmed and that the applicant pay the respondent’s costs of the application.
The proceedings were listed for determination of the threshold issue of whether the orders made by the Local Court at Armidale on 22 December 2009 should be set aside pursuant to section 79A of the Family Law Act.
Both the applicant and the respondent consented to the determination of the threshold issue prior to the court hearing or considering evidence in relation to…

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 Pease and Hatch

Details

AGLC: Pease and Hatch [2014] FCCA 281
Case: [2014] FCCA 281
Decision Date: 21 February 2014

CaseChat Overview and Summary

In *Pease and Hatch*, the Applicant sought to set aside orders made in the Local Court at Armidale on 22 December 2009. The proceedings concerned the determination of the Applicant's application for orders pursuant to section 79 of the *Family Law Act 1975* (Cth).

The primary legal issue before the court was whether the Local Court orders, made in circumstances where the Applicant was unrepresented and had not been afforded an opportunity to present her case, should be set aside. This involved considering the principles of procedural fairness and the court's power to vary or set aside its own orders.

The court reasoned that the Local Court orders were made in breach of procedural fairness, as the Applicant was not given a proper opportunity to be heard. Consequently, the court exercised its discretion to set aside the Local Court orders. The proceedings were then listed for direction to allow for the determination of the Applicant's application under section 79 of the *Family Law Act*.

Orders

Orders of the court

The orders made in the Local Court at Armidale on 22 December 2009 in respect of proceedings numbered (omitted) be set aside.

That the proceedings be listed for direction on a date to be advised by the Court in respect of the determination of the Applicant’s application for orders pursuant to section 79 of the Family Law Act.

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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