Ryan & Ash - [2024] FedCFamC2F 973

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ryan & Ash [2024] FedCFamC2F 973

File number(s): CAC 117 of 2021

Judgment of: JUDGE MANSFIELD

Date of judgment: 26 July 2024

Catchwords:
FAMILY LAW – PROPERTY – Where the court made orders by consent – Where the wife commenced child-related proceedings the husband joined property proceedings by seeking to have the consent orders set aside.

FAMILY LAW – PRACTICE & PROCEDURE – Where the husband subsequently became and remains a bankrupt – Where the wife argued that the husband does not have a sufficient interest in the outcome to afford him standing – Where the husband found to have standing due to his interest in regulated superannuation funds – Sloane followed – Where the husband’s application under s 79A is summarily dismissed on the finding that the husband has no reasonable prospect of successfully prosecuting the proceedings.

Legislation:
Bankruptcy Act 1966 (Cth) ss 35(1), 60, 60(2), 60(3), 60(5), 153B

Family Law Act 1975 (Cth) Pt VIII, ss 45A, 79, 79A, 79A(1)(a), 90SM, 102QAB, 116

Federal Circuit and Family Court of Australia Act 2021 (Cth) s67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 12.2, rr 10.12, 12.13, ss 102Q, 102QAC(2)(d), 102QC(3)(c)

Cases cited:
In the Marriage of H and R E Patching (1995) 18 Fam LR 675

Jess & Jess (No 4) [2022] FedCFamC1F 530

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

Masih & El Saeid (No 2) [2023] FedCFamC1F 939

Massalski & Riley [2022] FedCFamC1F 36

Oastler & Oastler (1989) 16 Fam LR 674

Re Lofthouse (2001) 107 FCR 151

Sloane & Sloan [2018] FamCA 610

Division: Division 2 Family Law

Number of paragraphs: 67

Date of last submission/s: 3 June 2024

Date of hearing: 3 June 2024

Place: Canberra

Solicitor for the Applicant: Litigant in Person

Counsel for the First Respondent: Ms Bridger

Solicitor for the First Respondent: Foster Johnson Lawyers

Solicitor for the Second Respondent: Australian Government Solicitor
ORDERS

CAC 117 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RYAN

Applicant

AND:
MS ASH

First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Respondent

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS THAT:
1.All extant applications for orders pursuant to Part VIII of the Family Law Act 1975 are dismissed.

Harmful proceedings order –
2.The husband is prohibited from instituting proceedings under the Family Law Act 1975 against the wife without the leave of the court under s 102QAG of the Act.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of…

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 Ryan & Ash

Details

AGLC: Ryan & Ash [2024] FedCFamC2F 973
Case: [2024] FedCFamC2F 973
Decision Date: 26 July 2024

CaseChat Overview and Summary

The case of Ryan & Ash, heard in the Federal Circuit and Family Court of Australia, involves proceedings initiated by the wife, Ms Ash, who sought child-related orders. The husband, Mr Ryan, sought to have the consent orders previously made set aside. The court was also asked to consider the husband's application to have the consent orders set aside in light of his subsequent bankruptcy, and the wife's contention that his lack of sufficient interest in the proceedings rendered him without standing. The Official Trustee in Bankruptcy was joined as a party in the proceedings.

The central legal issues before the court were whether Mr Ryan had standing to challenge the consent orders due to his bankruptcy and whether his application under section 79A of the Family Law Act 1975 had a reasonable prospect of success. The court had to determine if Mr Ryan's interest in regulated superannuation funds provided him with the requisite standing and if the application had merit. The decision hinged on the interpretation of the relevant statutory provisions and the application of the principle established in Sloane v Sloane.

The court found that Mr Ryan had standing to contest the consent orders because of his interest in the regulated superannuation funds. The decision followed the reasoning in Sloane, where it was held that a bankrupt's interest in superannuation could provide sufficient grounds for standing. However, the court dismissed Mr Ryan's application under section 79A as there was no reasonable prospect that he would successfully challenge the consent orders. Consequently, the court prohibited Mr Ryan from instituting further proceedings under the Family Law Act 1975 against Ms Ash without the court's leave under section 102QAG.

All applications for orders pursuant to Part VIII of the Family Law Act 1975 were dismissed, and the husband was prohibited from instituting further proceedings against the wife without leave of the court. This decision underscores the importance of standing and the reasonable prospect of success in family law proceedings, particularly in cases involving bankruptcy and regulated superannuation funds.

Orders

Orders of the court

CAC 117 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR RYAN

Applicant

AND:

MS ASH

First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Respondent

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS THAT:

1. All extant applications for orders pursuant to Part VIII of the Family Law Act 1975 are dismissed.

Harmful proceedings order –

2. The husband is prohibited from instituting proceedings under the Family Law Act 1975 against the wife without the leave of the court under s 102QAG of the Act.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

File number(s):	CAC 117 of 2021
Judgment of:	JUDGE MANSFIELD
Date of judgment:	26 July 2024
Catchwords:	FAMILY LAW – PROPERTY – Where the court made orders by consent – Where the wife commenced child-related proceedings the husband joined property proceedings by seeking to have the consent orders set aside. FAMILY LAW – PRACTICE & PROCEDURE – Where the husband subsequently became and remains a bankrupt – Where the wife argued that the husband does not have a sufficient interest in the outcome to afford him standing – Where the husband found to have standing due to his interest in regulated superannuation funds – Sloane followed – Where the husband’s application under s 79A is summarily dismissed on the finding that the husband has no reasonable prospect of successfully prosecuting the proceedings.
Legislation:	Bankruptcy Act 1966 (Cth) ss 35(1), 60, 60(2), 60(3), 60(5), 153B Family Law Act 1975 (Cth) Pt VIII, ss 45A, 79, 79A, 79A(1)(a), 90SM, 102QAB, 116 Federal Circuit and Family Court of Australia Act 2021 (Cth) s67 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 12.2, rr 10.12, 12.13, ss 102Q, 102QAC(2)(d), 102QC(3)(c)
Cases cited:	In the Marriage of H and R E Patching (1995) 18 Fam LR 675 Jess & Jess (No 4) [2022] FedCFamC1F 530 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Masih & El Saeid (No 2) [2023] FedCFamC1F 939 Massalski & Riley [2022] FedCFamC1F 36 Oastler & Oastler (1989) 16 Fam LR 674 Re Lofthouse (2001) 107 FCR 151 Sloane & Sloan [2018] FamCA 610
Division:	Division 2 Family Law
Number of paragraphs:	67
Date of last submission/s:	3 June 2024
Date of hearing:	3 June 2024
Place:	Canberra
Solicitor for the Applicant:	Litigant in Person
Counsel for the First Respondent:	Ms Bridger
Solicitor for the First Respondent:	Foster Johnson Lawyers
Solicitor for the Second Respondent:	Australian Government Solicitor

CAC 117 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR RYAN Applicant
AND:	MS ASH First Respondent OFFICIAL TRUSTEE IN BANKRUPTCY Second Respondent

ORDER MADE BY:	JUDGE MANSFIELD
DATE OF ORDER:	26 JULY 2024