SAIT & AUTON (No.2) - [2018] FCCA 3111

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAIT & AUTON (No.2)

[2018] FCCA 3111

Catchwords:

FAMILY LAW – Enforcement of property orders – order for payment of money – order not complied with – application for enforcement – non-payment admitted – available relief – whether open to treat enforcement application as contravention application – scope of available relief – orders for enforcement made.

Legislation:

Acts Interpretation Act 1901 (Cth), ss.25C

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.79, 112AA, 112AD, 112AE,

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 25B.02, 25B.04, 25B.07, 25B.10, 25B.11, 25B.12, 25B.13, 25B.14, 25B.65

Cases cited:

Blair v Curran (1939) 62 CLR 464
Lindsey & Lindsey [1995] FamCA 117
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627
Moss v Eaglestone (2011) 83 NSWLR 476
Rozenblit v Vainer [2018] HCA 23
Schwarzkopff & Schwarzkopff (1992) FLC 92-303
Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82
Sait & Auton [2018] FCCA 146
Sutcliffe & Sutcliffe (1988) 12 Fam LR 794

Other texts cited:

Bargaric, Edney & Alexander Sentencing in Australia 5th Ed (2017)
Cross on Evidence, 10^th Ed
Fox & Freiberg’s Principles of Sentencing 3^rd Ed (2014)
Statutory Interpretation in Australia 8^th Ed (2014)

Applicant:

MS SAIT

Respondent:

MR AUTON

File Number:

MLC 6106 of 2007

Judgment of:

Judge A Kelly

Hearing dates:

18 & 25 October 2018

Date of Last Submission:

25 October 2018

Delivered at:

Melbourne

Delivered on:

1 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Kiernan

Solicitors for the Applicant:

Berry Family Law

Respondent:

In person

ORDERS

Declare that the sum of $230,000 is payable by the respondent to the applicant.
By 4.00pm on 30 November 2018, the respondent pay the sum of $230,000 to the applicant.
The respondent pay the applicant’s costs of this application fixed at:
(a)Solicitor’s fees: $2,500.
(b)Counsels fees (3 days): $7,500.
Pursuant to r 25B.14 of the Federal Circuit Court Rules 2001 (Cth):
(a)this Order is an order of the kind provided for by r 25B.13(a)-(b);
(b)the applicant’s full name and address is:
MS SAIT
(c)the respondent’s full name and address is:
MR AUTON
(d)the total amount payable under this order is $240,000 being:
(i)the sum of the judgment debt: $230,000.
(ii)the sum of the costs fixed by this Order: $ 10,000.
$240,000
Direct that a copy of these reasons for judgment, once anonymised, be transmitted by the Registrar to the Victorian Legal Services Board.

IT IS NOTED that publication of this judgment under the pseudonym Sait & Auton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6106 of 2007

MS SAIT

Applicant

And

MR AUTON

Respondent

REASONS FOR JUDGMENT

Introduction

On 2 February 2018, reasons for judgment (first reasons) were delivered in relation to an application for an adjustment of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (Act)[1]. These reasons…

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 SAIT & AUTON (No.2)

Details

AGLC: SAIT & AUTON (No.2) [2018] FCCA 3111
Case: [2018] FCCA 3111
Decision Date: 1 November 2018

CaseChat Overview and Summary

In the matter of SAIT & AUTON (No.2), Judge A Kelly of the Federal Circuit Court of Australia considered an application for the enforcement of property orders. The dispute arose from the respondent's admitted non-compliance with an order for the payment of a sum of money to the applicant. The applicant sought to enforce this existing order.

The court was required to determine the available relief for the applicant in circumstances where the respondent had failed to comply with a monetary payment order. Specifically, the court considered whether it was open to treat the enforcement application as a contravention application and, consequently, the scope of relief that could be granted.

Judge Kelly reasoned that the application was properly brought as an enforcement application. The court found that the respondent had failed to comply with the property order requiring payment of $230,000. Applying the relevant rules, the court made orders declaring the sum payable and directing the respondent to pay $230,000 to the applicant by 4:00 pm on 30 November 2018. The respondent was also ordered to pay the applicant's costs of the application, fixed at $2,500 for solicitor's fees and $7,500 for counsel's fees, bringing the total amount payable under the order to $240,000. The court further directed that anonymised reasons for judgment be transmitted to the Victorian Legal Services Board.

Orders

Orders of the court

Declare that the sum of $230,000 is payable by the respondent to the applicant.

By 4.00pm on 30 November 2018, the respondent pay the sum of $230,000 to the applicant.

The respondent pay the applicant’s costs of this application fixed at:

(a)Solicitor’s fees: $2,500.

(b) Counsels fees (3 days): $7,500.

Pursuant to r 25B.14 of the Federal Circuit Court Rules 2001 (Cth):

(a)this Order is an order of the kind provided for by r 25B.13(a)-(b);

(b) the applicant’s full name and address is:

MS SAIT

MR AUTON

(d) the total amount payable under this order is $240,000 being:

(i) the sum of the judgment debt: $230,000.

(ii) the sum of the costs fixed by this Order: $ 10,000.

$240,000

Direct that a copy of these reasons for judgment, once anonymised, be transmitted by the Registrar to the Victorian Legal Services Board.

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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