SAMUEL & SAMUEL - [2014] FCCA 596

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMUEL & SAMUEL

[2014] FCCA 596

Catchwords:
FAMILY LAW – Property Orders – where husband seeks order for variation under s.79A(1)(c) – where both parties in default – where costs sought by wife.

Legislation:

Family Law Act 1975, s.79A(1) (c)

Cawthorn & Cawthorn [1998] FamCA 37
Carrington & Carrington [2010] FamCA 982
Gull & Gull [2012] FamCA 431
Gaudry & Gaudry [2004] FMCAfam 649

Applicant:

MR SAMUEL

Respondent:

MS SAMUEL

File Number:

DGC 2143 of 2010

Judgment of:

Judge Small

Hearing date:

14 March 2014

Date of Last Submission:

14 March 2014

Delivered at:

Dandenong

Delivered on:

14 March 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Da Gama

Vermon Da Gama & Associate

Solicitors for the Respondent:

Mr Knopf

Robin Harrison & Associates

ORDERS

The Application filed by Mr Samuel on 23 August 2012 is hereby dismissed.
The Orders made by this Court on 1 February 2012 remain in full force and effect.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 2143 of 2010

MR SAMUEL

Applicant

And

MS SAMUEL

Respondent

REASONS FOR JUDGMENT

In the matter of Samuel, the matter came before me yesterday for mention on the husband’s application under s.79A(1)(c) for variation of orders that had been made by consent in this court on 24 March 2011.
The order that was sought to be varied was order (1)(c) of those orders. That order provided for the husband to pay to the wife $36,000 upon her complying with orders that provided for her to transfer two properties in India to the husband. In fact, what that order actually said was within 90 days, the parties were to do certain things and paragraph (1)(C) was the one that said that the husband was to pay to the wife $36,000 upon her complying with those orders in relation to the properties in India. But it also said “or in any event”.
The actual order (1)(c) reads, if I read it within the whole of order (1), says that:
Within 90 days, upon the wife completing all her obligations pursuant to paragraph (1A), and in any event, within 90 days of this date, the husband pay to the wife the sum of $36,000.
That order was amended by orders made on 1 February 2012, which provided for the husband to the pay the wife the $36,000 upon receiving proof that the properties in India had been transferred to the husband. What that means is that between 24 March 2011 and 1 February 2012, the husband was obliged to pay to the wife $36,000. And that wasn’t done.
There has been voluminous correspondence between the parties since orders were made in March 2011. To cut a very long and involved story short, the properties in India are actually shares in a co-op – that property to be transferred is actually…

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 SAMUEL & SAMUEL

Details

AGLC: Samuel and Samuel [2014] FCCA 596
Case: [2014] FCCA 596
Decision Date: 14 March 2014

CaseChat Overview and Summary

In the matter of *Samuel & Samuel*, Mr Samuel applied to the court seeking to set aside or vary certain orders previously made by the court on 1 February 2012. The specific nature of the dispute and the original orders are not detailed in the provided text, but the application concerned the continued effect of those prior orders. The decision was made by Judge Small.

The primary legal issue before the court was whether the application by Mr Samuel to alter or nullify the existing orders of 1 February 2012 should be granted. This required the court to consider the grounds upon which such an application could be made and the evidence presented by Mr Samuel in support of his request.

Judge Small dismissed Mr Samuel's application. The reasoning for this dismissal is not elaborated upon in the provided text, but the outcome indicates that the court found no sufficient basis to interfere with the orders previously made. Consequently, the court ordered that the orders of 1 February 2012 were to remain in full force and effect.

Orders

Orders of the court

The Application filed by Mr Samuel on 23 August 2012 is hereby dismissed.

The Orders made by this Court on 1 February 2012 remain in full force and effect.

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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