Shafton and Shafton - [2011] FMCAfam 46

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAFTON & SHAFTON

[2011] FMCAfam 46

FAMILY LAW – Enforcement – interpretation of consent orders.

Family Law Rules, r.20.11

Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24
Fooks v Clark (2004) 34FamLR 149
Ford v Beech (1848) 11QB 852
In the Marriage of Langford & Coleman (1992) 110FLR 396

Owston Nominees No 2 Pty Limited v Branir Pty Limited [2003] FCA629
Repatriation Commission v Nation (1995) 57 FCR 25
Yunghanns & Yunghanns (1999) FLC92-836

Applicant:

MS SHAFTON

Respondent:

MR SHAFTON

File Number:

NCC 1006 of 2009

Judgment of:

Terry FM

Hearing date:

16 August 2010

Date of Last Submission:

13 September 2010

Delivered at:

Newcastle

Delivered on:

21 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Hamilton

Solicitors for the Applicant:

Kinnear & Company

Counsel for the Respondent:

Mr Graham

Solicitors for the Respondent:

Baker Love Lawyers

ORDERS

That the wife’s application for a declaration that she is owed $80,346.06 by the husband is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1006 of 2009

MS SHAFTON

Applicant

And

MR SHAFTON

Respondent

REASONS FOR JUDGMENT

Introduction

The wife seeks, in aid of an enforcement application, a declaration that upon the proper construction of consent orders made on 28 April 2009 the husband owes her $80,346.06.
The husband seeks the dismissal of the wife’s application. He says that upon the proper construction of the orders he is up to date with his obligations and does not owe the wife anything.

The Evidence

The wife relied on her amended application in a case filed on 22 July 2010 and her affidavits filed on 22 May 2010, 22 July 2010 and

6 August 2010. The wife’s application was drawn for filing in the Family Court and the wife’s documents are in compliance with r.20.11 of the Family Court Rules.
The husband relied on his affidavits filed on 6 August 2010 and

6 August 2010.
The orders of 28 April 2009 were made by the Family Court. There was no dispute that they had been registered in this court.
At the hearing on 16 August 2010 the parties were cross examined and an order was made for the filing of written submissions. The husband was ordered to file and serve submissions within 7 days, the wife was ordered to file and serve submissions within a further 14 days and the husband was given liberty to file and serve submissions in reply within a further 7 days if he took issue with any matters of law in the wife’s submissions.
The husband’s submissions were filed on 20 August 2010 and the wife’s submissions were filed on 6 September 2010, in accordance with the orders.
The husband became self-represented after his submissions were filed. He filed what purported to be submissions in reply on 13 September 2010.…

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.

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Details

Case: [2011] FMCAfam 46
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, Ms Shafton sought a declaration that she was owed $80,346.06 by Mr Shafton under their consent orders made in the Family Court. Mr Shafton argued that he did not owe Ms Shafton any money. The dispute centred on the interpretation of certain provisions of the consent orders, particularly those concerning lump sum payments, monthly payments, and the interim funding facility. The wife argued that the husband owed her money based on a literal interpretation of the orders, while the husband argued that the orders should be read as a whole and that he was up to date with his obligations.

The court considered the principles of interpreting consent orders, noting that the orders must be read and interpreted independently of the parties' subjective intentions. The court found that Order 6, which dealt with payments to the wife, was ambiguous and required interpretation in light of the whole agreement and the uncontroversial background facts. The court concluded that the husband's overarching liability was to pay $60,000.00 per annum, and that any payments made under Order 6.4 should be treated as part payment of the lump sums. The court also found that the husband had not established the interim funding facility as required by the orders, and that the wife's claim based on this argument could not succeed.

The wife's application for a declaration that she was owed $80,346.06 by the husband was dismissed. The court found that the husband was up to date with his obligations pursuant to the orders, and did not owe the wife any money. The court's reasons for judgment were delivered on 21 January 2011.

Orders