Porter and Porter and Ors (No 2) - [2018] FamCA 497

FAMILY COURT OF AUSTRALIA

PORTER & PORTER & ORS (NO 2)

[2018] FamCA 497

FAMILY LAW – PROPERTY – Where a final property settlement order was made by consent – Where that order, amongst other things, required the husband to borrow funds to purchase a residential home for the wife’s exclusive occupation and for the husband to make the mortgage repayments for a period of 10 years - Where the husband has since become bankrupt – Where the husband’s trustee in bankruptcy is contesting the validity of the property settlement order under s 79A(1)(a) Family Law Act or in the alternative relying upon the court’s implied jurisdiction – Where the trustee asserts that the property settlement order was made without the power to do so because it impermissibly brought property into existence – Where new property is not created as the husband’s net assets at the time of the orders exceeded the amount borrowed – Where the challenge to the court’s power to make the property settlement order fails and that part of the application by the husband’s trustee in bankruptcy is dismissed

Family Law Act 1975 (Cth)
Family Law Rules

Hickey and Hickey and Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
In the Marriage of Kokl (1981) 7 Fam LR 591
In theMarriage of Rhode (1984) 10 FamLR 56, FLC 91-592
Mullane v Mullane (1983) 158 CLR 436
Tallant & Tallant (2017) FLC 93-789
The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Walters & Walters (1986) FLC 91-733

APPLICANT:

Ms Porter

1^st RESPONDENT:

Mr Porter

2^nd RESPONDENTS:

P Pty Ltd

3^rd RESPONDENTS:

Q Pty Ltd

4^th RESPONDENTS:

R Pty Ltd

5^th RESPONDENT:

Mr Dunst & Mr Simons as Trustees in Bankrupt Estate of Mr Porter

6^th RESPONDENTS:

Ms O

7^th RESPONDENTS:

S Pty Ltd

FILE NUMBER:

SYC

4014

2012

DATE DELIVERED:

28 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

22 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levet

SOLICITOR FOR THE APPLICANT:

Quinn Legal

SOLICITOR FOR THE RESPONDENT:

Respondent Husband in person

COUNSEL FOR 2^ND – 4^TH RESPONDENTS & 6^TH – 7^TH RESPONDENTS:

Mr McDonald

SOLICITOR FOR 2^ND – 4^TH RESPONDENTS & 6^TH – 7^TH RESPONDENTS:

Litigants in person

SOLICITOR FOR 5^TH RESPONDENT:

Litigant in person

Orders

The application by the 5^th respondent to set aside the property settlement order made 20 June 2014, pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) or in the alternative, the court’s implied jurisdiction, be dismissed.
Pursuant to rule 1.12 of the Family Law Rules (“the rules”), the time for filing any appeal against order 1, as set by rule 22.03 of the rules, be extended to 28 days after any determination or discontinuance of the 5^th respondent’s application to set aside the property settlement order made 20 June 2014 pursuant to s 79A(1)(b)…

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.

Keep reading for free

Create a free CaseChat account to read Porter and Porter and Ors (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 497
Decision Date: 28 June 2018

CaseChat Overview and Summary

In *Porter and Porter and Ors (No 2)*, Watts J of the Family Court of Australia considered an application by the fifth respondent to set aside a property settlement order made on 20 June 2014. The application was brought under section 79A(1)(a) of the *Family Law Act 1975* (Cth) and, in the alternative, under the court's implied jurisdiction.

The primary legal issue before the court was whether the grounds advanced by the fifth respondent justified setting aside the existing property settlement order. This involved an assessment of whether there were circumstances that warranted the court exercising its power to vary or set aside an order under section 79A of the Act, or its inherent jurisdiction.

Watts J dismissed the fifth respondent's application to set aside the property settlement order. The court also extended the time for the fifth respondent to file any appeal against this dismissal, setting the new deadline at 28 days after any determination or discontinuance of a separate application by the fifth respondent to set aside the same order, but pursuant to section 79A(1)(b) of the Act. The matter was then adjourned for a procedural mention.

Orders

Orders of the court

The application by the 5th respondent to set aside the property settlement order made 20 June 2014, pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) or in the alternative, the court’s implied jurisdiction, be dismissed.

Pursuant to rule 1.12 of the Family Law Rules (“the rules”), the time for filing any appeal against order 1, as set by rule 22.03 of the rules, be extended to 28 days after any determination or discontinuance of the 5th respondent’s application to set aside the property settlement order made 20 June 2014 pursuant to s 79A(1)(b) of the Act.

This matter is otherwise adjourned for a procedural mention on 6 September 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.