Sigley and De Santis (No 2) - [2016] FamCA 960

FAMILY COURT OF AUSTRALIA

SIGLEY & DE SANTIS (NO 2)

[2016] FamCA 960

FAMILY LAW – UNDEFENDED HEARING – Application to proceed undefended for orders that part of a financial agreement be enforced as if it were an order of the court – where the respondent has failed to comply with court orders including orders for discovery – where the respondent has not appeared at several court events – where the respondent has not prosecuted his response – where the applicant has diligently pursued her case – orders made as sought by the applicant

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Tate & Tate [2000] FamCA 1040; (2000) FLC 93-047

APPLICANT:

Ms Sigley

RESPONDENT:

Mr De Santis

FILE NUMBER:

MLC

9296

2015

DATE DELIVERED:

14 November 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

5 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strum QC

SOLICITOR FOR THE APPLICANT:

Peter Szabo Family Law

THE RESPONDENT:

No appearance

Orders

IT IS ORDERED THAT

The respondent’s Response to Initiating Application filed 5 November 2015 be struck out.
Pursuant to s 90UN of the Family Law Act1975 (Cth) (“the Act”) paragraph 6 of the Financial Agreement dated 24 October 2013 made between the parties pursuant to s 90UC of the Act (“the Agreement”) be enforced as if it were an order of the Court.
Until further order the respondent, by himself, his servants and agents (including but not limited to B Accountants) notify the solicitors for the applicant in writing within 48 hours of receipt of any creditor’s petition directed to him and enclose a photocopy of each such petition and advise as to the time and place of service of same upon him.
As soon as practicable the applicant cause a sealed copy of these orders and Reasons for Judgment to be served upon:
(a) the respondent by prepaid post addressed to H Street, Suburb I and by email at …; and
(b) B Accountants by prepaid post C/-.
On or before 4.00 pm on 28 November 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the applicant’s Initiating Application filed 1 October 2015, her Application in a Case filed 3 February 2016 and the respondent’s Response to Initiating Application filed 5 November 2015.
On or before 4.00 pm on 12 December 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to applicant’s Initiating Application filed 1 October 2015, her Application in a Case filed 3 February 2016 and the respondent’s Response to Initiating Application filed 5 November 2015.
The applicant’s Initiating Application filed 1 October 2015 and her Application in a Case filed 3 February 2016 be otherwise dismissed save and except as to any application for costs.

Note: The form of the order is subject to the entry of the…

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 Sigley and De Santis (No 2)

Details

AGLC: Sigley and De Santis (No 2) [2016] FamCA 960
Case: [2016] FamCA 960
Decision Date: 14 November 2016

CaseChat Overview and Summary

In *Sigley and De Santis (No 2)*, His Honour Macmillan J considered an application by the applicant to strike out the respondent's Response to Initiating Application and to enforce a financial agreement made between the parties. The dispute concerned the enforcement of a financial agreement entered into under s 90UC of the *Family Law Act 1975* (Cth).

The primary legal issues before the Court were whether the respondent's Response to Initiating Application should be struck out, and whether paragraph 6 of the financial agreement, made between the parties on 24 October 2013, should be enforced as an order of the Court pursuant to s 90UN of the Act. The Court also considered ancillary orders relating to notification of creditor's petitions and the filing of submissions regarding costs.

His Honour determined that the respondent's Response to Initiating Application should be struck out. The Court further ordered that paragraph 6 of the financial agreement be enforced as if it were an order of the Court. This paragraph likely related to the respondent's obligations concerning creditor's petitions, as evidenced by the subsequent orders requiring the respondent to notify the applicant's solicitors of any such petitions. The Court also made orders for the service of its orders and reasons, and for the parties to file written submissions and replies concerning any applications for costs. The applicant's Initiating Application and Application in a Case were otherwise dismissed, save for any application for costs.

Orders

Orders of the court

IT IS ORDERED THAT

The respondent’s Response to Initiating Application filed 5 November 2015 be struck out.

Pursuant to s 90UN of the Family Law Act 1975 (Cth) (“the Act”) paragraph 6 of the Financial Agreement dated 24 October 2013 made between the parties pursuant to s 90UC of the Act (“the Agreement”) be enforced as if it were an order of the Court.

Until further order the respondent, by himself, his servants and agents (including but not limited to B Accountants) notify the solicitors for the applicant in writing within 48 hours of receipt of any creditor’s petition directed to him and enclose a photocopy of each such petition and advise as to the time and place of service of same upon him.

As soon as practicable the applicant cause a sealed copy of these orders and Reasons for Judgment to be served upon:

(a) the respondent by prepaid post addressed to H Street, Suburb I and by email at …; and

(b) B Accountants by prepaid post C/-.

On or before 4.00 pm on 28 November 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the applicant’s Initiating Application filed 1 October 2015, her Application in a Case filed 3 February 2016 and the respondent’s Response to Initiating Application filed 5 November 2015.

On or before 4.00 pm on 12 December 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to applicant’s Initiating Application filed 1 October 2015, her Application in a Case filed 3 February 2016 and the respondent’s Response to Initiating Application filed 5 November 2015.

The applicant’s Initiating Application filed 1 October 2015 and her Application in a Case filed 3 February 2016 be otherwise dismissed save and except as to any application for costs.

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

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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