Purcell and Fitch - [2013] FCCA 1152

FEDERAL CIRCUIT COURT OF AUSTRALIA

PURCELL & FITCH

[2013] FCCA 1152

Catchwords:
FAMILY LAW – Alteration of final property orders sought – orders made by consent – s.79A(1)(b) of the Family Law Act 1975 (Cth) – not impracticable for the orders to be carried out – no attempt made by the husband to satisfy the orders – application dismissed.

Legislation:

Family Law Act 1975 (Cth) s.79A(1)(b)

Rafter v Rafter [2012] FamCA 611

Applicant:

MR PURCELL

Respondent:

MS FITCH

File Number:

MLC 1857 of 2011

Judgment of:

Judge Hartnett

Hearing dates:

2 & 3 May 2013

Delivered at:

Melbourne

Delivered on:

23 August 2013

REPRESENTATION

Counsel for the Applicant:

Ms Colla

Solicitors for the Applicant:

J Kotsifas & Associates

Counsel for the Respondent:

Ms Treyvaud

Solicitors for the Respondent:

Nicholes Family Lawyers

THE COURT ORDERS THAT:

The Applicant husband’s Application filed 18 May 2013 and amended by Amended Application filed 6 February 2013 under s.79A of the Family Law Act 1975 (Cth) is dismissed.
The husband forthwith sell his AMP Shares and being 163 in number, and pay to the Solicitors for the Respondent wife for payment out to the wife the entirety of the proceeds of sale. In the event the husband fails to forthwith comply with this order, there is liberty to the wife to apply to the Court on short notice in respect of both enforcement and contravention of an order of this Court.
The husband forthwith deliver to the wife, at a time and to a place determined by her, possession of the 2005 [F] motor vehicle registered in his name for her sole use absolutely. Thereafter and within 30 days the husband transfer to the wife, at the expense of the husband, the ownership of the said vehicle. In the event the husband fails to forthwith comply with this order, there is liberty to the wife to apply to the Court on short notice in respect of both enforcement and contravention of an order of this Court.
The wife is to obtain a Red Book valuation of the 2005 [F] motor vehicle or otherwise a valuation from a registered valuer within 30 days of the transfer of ownership from the husband to her.
The monies and assets received by the wife pursuant to orders 2 and 3 herein are to form part of the first payment required to be paid by the husband to the wife pursuant to the Orders made 25 August 2011 in this Court.
The husband pay to the wife the sums of $4,000 and $1,645.88 (a total of $5,645.88) by way of reimbursement to her of monies gained from the sale of the [J] bonnet and monies expended by her in relation to his non-compliance with order number 19 of the Orders made 25 August 2011 within 30 days hereof.
The wife’s costs of these proceedings are reserved and there is liberty to the parties to make written submissions with respect thereto in the next 28 days.
Otherwise the husband is…

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 Purcell and Fitch

Details

AGLC: PURCELL & FITCH [2013] FCCA 1152
Case: [2013] FCCA 1152
Decision Date: 23 August 2013

CaseChat Overview and Summary

In *Purcell and Fitch*, heard by Judge Hartnett, the applicant husband sought to vary existing property settlement orders made on 25 August 2011, pursuant to section 79A of the *Family Law Act 1975* (Cth). The dispute concerned the division of assets and the husband's compliance with previous court orders.

The court was required to determine whether the circumstances warranted a variation of the original property settlement orders. Specifically, the court had to consider the husband's application to alter the existing financial arrangements and the wife's position regarding the enforcement of the 2011 orders and the husband's alleged non-compliance.

Judge Hartnett dismissed the husband's application to vary the orders. The court ordered the husband to sell his AMP shares and pay the proceeds to the wife, and to forthwith deliver possession of a 2005 [F] motor vehicle to the wife, with ownership to be transferred within 30 days at his expense. These assets were to form part of the first payment due to the wife under the 2011 orders. The husband was also ordered to pay the wife $5,645.88 for monies gained from the sale of a [J] bonnet and for her expenses related to his non-compliance with a previous order. The wife's costs were reserved, and the husband was otherwise to perform his obligations under the 2011 orders.

Orders

Orders of the court

The Applicant husband’s Application filed 18 May 2013 and amended by Amended Application filed 6 February 2013 under s.79A of the Family Law Act 1975 (Cth) is dismissed.

The husband forthwith sell his AMP Shares and being 163 in number, and pay to the Solicitors for the Respondent wife for payment out to the wife the entirety of the proceeds of sale. In the event the husband fails to forthwith comply with this order, there is liberty to the wife to apply to the Court on short notice in respect of both enforcement and contravention of an order of this Court.

The husband forthwith deliver to the wife, at a time and to a place determined by her, possession of the 2005 [F] motor vehicle registered in his name for her sole use absolutely. Thereafter and within 30 days the husband transfer to the wife, at the expense of the husband, the ownership of the said vehicle. In the event the husband fails to forthwith comply with this order, there is liberty to the wife to apply to the Court on short notice in respect of both enforcement and contravention of an order of this Court.

The wife is to obtain a Red Book valuation of the 2005 [F] motor vehicle or otherwise a valuation from a registered valuer within 30 days of the transfer of ownership from the husband to her.

The monies and assets received by the wife pursuant to orders 2 and 3 herein are to form part of the first payment required to be paid by the husband to the wife pursuant to the Orders made 25 August 2011 in this Court.

The husband pay to the wife the sums of $4,000 and $1,645.88 (a total of $5,645.88) by way of reimbursement to her of monies gained from the sale of the [J] bonnet and monies expended by her in relation to his non-compliance with order number 19 of the Orders made 25 August 2011 within 30 days hereof.

The wife’s costs of these proceedings are reserved and there is liberty to the parties to make written submissions with respect thereto in the next 28 days.

Otherwise the husband is to perform his obligations pursuant to the Orders made 25 August 2011.

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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