SH & DH (No.1) - [2003] FMCAfam 330

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SH & DH (No.1)

[2003] FMCAfam 330

FAMILY LAW – Property settlement – Consent order – Application to set aside order under s.79A(1) – Duress – Duress is a question of degree – Equitable concept of duress is applicable test – Relevant considerations in determining duress – Miscarriage of justice – Applicant carries the onus – Application dismissed.

Family Law Act 1975, ss.63H(1), 79, 79A, 79A(1)(a), 81, 87, 90K(1)(b)

Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 296
Crescendo Management v Westpac (1988) 19 NSWLR 40
Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653
Barton & Armstrong (1973) 2 NSWLR 598

Harris v Caladine (1991) FLC 92-217
Suiker and Suiker (1993) FLC 92-436

Molier and Van Wyk (1980) FLC 90-763
Holland and Holland (1982) FLC 91-243
Gilbert and the Estate of Gilbert (deceased) (1990) FLC 92-125
Kowalski (1993) FLC 92-342
Simpson and Hamlin (1984) FLC 91-576
Fickling and Fickling (1996) FLC 92-664
Official Trustee in Bankruptcy v Donovan (1996) FLC 92-676
Prowse and Prowse (1995) FLC 92-557
In the Marriage of Oastler (1989) 16 Fam LR 673
Clifton and Stuart (1990) FLC 92-194
Morrison (1995) FLC 92-573 at 87,673
Russell v Russell (1999) FLC 92-877
Kokl and Kokl (1981) FLC 91-078
In re S (1980) FLC 92-124
Pelerman and Pelerman (2000) FLC 93-037
Prior and Prior [2002] FamCA 327
Riley & Pateman (2000) Fam CA 1296
Malfa [2000] Fam CA 937
Kostomiris [2003] Fam CA 274
Benson & Benson [2002] Fam CA 569
Wildeboer (FC) 23 October 1997 (unreported)

Applicant:

Respondent:

File No:

SYM163 of 2002

Delivered on:

19 September 2003

Delivered at:

Wollongong

Hearing date:

29 July 2003

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr W. Moss

Solicitors for the Applicant:

Verekers

Solicitor Advocate for the Respondent:

Mr G Morrison

Solicitors for the Respondent:

Leo & Morrison

ORDERS

That the wife’s application to set aside section 79 orders made
18 September 2001 is dismissed.
That within 21 days the wife files and serves written submissions in relation to her application to apply to review the decision of the Deputy Registrar to approve the section 79 orders.
That within 21 days the husband files and serves written submissions in reply.
Any application for costs is to be made within 28 days by arrangement with my Associate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM163 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Application

This is an application by SH (“the wife”) to set aside a consent property order made on 18 September 2001. She moves on her amended application filed 24 July 2003. Her application, which is made under s.79A of the Family Law Act 1975 (the Act) is based upon a claim that there has been a miscarriage of justice by reason of duress.
In the event that her s.79A application is unsuccessful, the wife seeks leave to file a review of the Deputy Registrar's decision whereby…

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 SH & DH (No.1)

Details

AGLC: SH & DH (No.1) [2003] FMCAfam 330
Case: [2003] FMCAfam 330
Decision Date: 19 September 2003

CaseChat Overview and Summary

The matter before the court involved the wife seeking to set aside orders made under section 79 of a relevant statute on 18 September 2001. The wife also sought to review the decision of the Deputy Registrar who had approved those orders. The dispute was heard and determined by a judge of the Family Court.

The central legal issues for the court to decide were whether the wife's application to set aside the section 79 orders should be granted and whether the application to review the Deputy Registrar’s decision was valid. The court had to consider the procedural fairness of the orders and the merits of the wife's application to set them aside. Additionally, the court assessed whether the wife's application to review the Deputy Registrar's decision was within the appropriate timeframe and whether it had a valid basis.

In dismissing the wife’s application to set aside the section 79 orders, the court found that the orders were made fairly and the wife did not demonstrate sufficient grounds for setting them aside. The court also directed that the wife file written submissions regarding her application to review the Deputy Registrar's decision, and that the husband respond to these submissions. The court concluded that any costs application must be made within 28 days by arrangement with the judge's associate.

Orders

Orders of the court

That the wife’s application to set aside section 79 orders made

18 September 2001 is dismissed.

That within 21 days the wife files and serves written submissions in relation to her application to apply to review the decision of the Deputy Registrar to approve the section 79 orders.

That within 21 days the husband files and serves written submissions in reply.

Any application for costs is to be made within 28 days by arrangement with my Associate.

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.