Sitwell & Sitwell (No. 2) - [2013] FamCA 199

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL (NO. 2)

[2013] FamCA 199

FAMILY LAW – EXTENSION OF TIME – Application by husband to extend the time to comply with an order relating to a contract for sale – Application made on date contract to expire if not completed – Orders sought to be extended in respect of a time in which to complete a contract found to be final property orders, not machinery orders – Case authorities provide that a final order cannot be interfered with other than by way of appeal or section 79A of the Family Law Act 1975 (Cth) – Extension of time cannot be granted – Application dismissed

FAMILY LAW – DISQUALIFICATION – Application by husband to disqualify presiding Judicial Officer on the grounds of actual or apprehended bias – No finding of either actual or apprehended bias – Application dismissed

Bray & Bray (1988) FLC 91-968
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Eure & Tidwell (1995) FLC 92-622
Munday & Bowman (1997) FLC 92-784
Ravasini & Ravasini (1983) FLC 91-312
Slapp & Slapp (1989) FLC 92-022
State of Queensland v JL Holdings (1997) 189 CLR 146
Tate & Tate (2000) FLC 93-047

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sitwell

RESPONDENT:

Ms Sitwell

FILE NUMBER:

PAC

5769

2010

DATE DELIVERED:

14 March 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

14 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No appearance
(self-represented litigant)

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Mr Jamieson

Champion Legal

Orders

That the document being an email from the husband addressed to Vicki Kelly and a copy to Ms A shall become Exhibit A in today’s proceedings.
That the Notice to Produce and accompanying correspondence shall become Exhibit B in today’s proceedings.
That the correspondence of 5 March 2013 from Vicki Kelly to Mr Proctor shall become Exhibit C in these proceedings.
That the husband’s application filed on 11 March 2013 for disqualification is hereby dismissed.
That the husband’s application filed on 11 February 2013 is hereby dismissed.
That the husband shall pay the wife’s costs of today on an indemnity basis as agreed or taxed.
That such payment shall be made within six (6) months of any assessment being made.
That until payment, the liability for costs shall create a charge that may be protected by caveat, which may be secured over the land to be transferred into the husband’s name being previously described as B Street. The charge shall be in the amount of $10,000 subject to a notice of assessment being issued in the appropriate fashion.
That I remove all outstanding issues from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:

Mr Sitwell

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 Sitwell & Sitwell (No. 2)

Details

AGLC: SITWELL & SITWELL (NO. 2) [2013] FamCA 199
Case: [2013] FamCA 199
Decision Date: 14 March 2013

CaseChat Overview and Summary

In *Sitwell & Sitwell (No. 2)*, Collier J considered an application by the husband to extend the time for compliance with an order concerning a contract for sale. The husband sought this extension on the very day the contract was due to expire if not completed. The wife also sought the husband's disqualification of the presiding Judicial Officer on grounds of actual or apprehended bias.

The primary legal issue before the court was whether an extension of time could be granted for compliance with the contract for sale order. This required the court to determine whether the existing orders were final property orders or merely machinery orders. A secondary issue was whether the husband had established actual or apprehended bias on the part of the Judicial Officer.

Collier J reasoned that the orders relating to the contract for sale were final property orders. Applying established case authorities, the court held that final orders could not be interfered with except by way of appeal or under section 79A of the *Family Law Act 1975* (Cth). As neither of these avenues was pursued, an extension of time could not be granted. The application for disqualification was also dismissed, with no finding of actual or apprehended bias being made.

Consequently, the husband's application for an extension of time was dismissed. The husband was also ordered to pay the wife's costs of the proceedings on an indemnity basis, with the payment to be secured by a charge over specific land. All outstanding issues were removed from the pending cases list.

Orders

Orders of the court

That the document being an email from the husband addressed to Vicki Kelly and a copy to Ms A shall become Exhibit A in today’s proceedings.

That the Notice to Produce and accompanying correspondence shall become Exhibit B in today’s proceedings.

That the correspondence of 5 March 2013 from Vicki Kelly to Mr Proctor shall become Exhibit C in these proceedings.

That the husband’s application filed on 11 March 2013 for disqualification is hereby dismissed.

That the husband’s application filed on 11 February 2013 is hereby dismissed.

That the husband shall pay the wife’s costs of today on an indemnity basis as agreed or taxed.

That such payment shall be made within six (6) months of any assessment being made.

That until payment, the liability for costs shall create a charge that may be protected by caveat, which may be secured over the land to be transferred into the husband’s name being previously described as B Street. The charge shall be in the amount of $10,000 subject to a notice of assessment being issued in the appropriate fashion.

That I remove all outstanding issues from the pending cases list.

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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