Slattery and Mitra - [2014] FCCA 555

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLATTERY & MITRA

[2014] FCCA 555

Catchwords:
FAMILY LAW – Application by wife to seek machinery provision orders to enable compliance with intent of final consent orders for property division – those orders result in husband paying the wife funds which the husband says are not payable or contemplated in the final orders – husband says the wife is attempting to vary the percentage division provided for in final consent orders – Court rejects submission that an interim indemnity clause over-rides express provisions of the final property orders – applicant dismissed.

Legislation:
Family Law Act 1975, ss.80, 79

Ravasini & Ravasini (1983) FLC 91‑312
Molier & Van Wyk (1980) FLC 90‑911
Pera & Pera [2008] FamCAFC 87
Slapp & Slapp (1989) FLC 92‑022
Cranage & Cranage (1981) FLC 91‑039
McDonald & McDonald (1976) FLC 90‑047
Kaljo & Kaljo (1978) FLC 90-445

Applicant:

MS SLATTERY

Respondent:

MR MITRA

File Number:

TVC 931 of 2011

Judgment of:

Judge Willis

Hearing dates:

17 February 2014 & 11 March 2014

Date of Last Submission:

11 March 2014

Delivered at:

Brisbane

Delivered on:

21 March 2014

REPRESENTATION

Solicitors for the Applicant:

Macrossan & Amiet

Counsel for the Respondent:

Mr Moore

Solicitors for the Respondent:

Whitsunday Law

ORDERS

That Orders 1, 2 and 4 of Orders sought in the Application in a Case filed on 22 July 2013 by the wife are dismissed.
In the event that the issue of costs is not resolved between the parties, the party seeking costs is to forward written submissions together with a draft order and a schedule of the Federal Circuit Court Costs Schedule with commentary regarding the costs claimed no later than 4.00pm on 28 March 2014 and the respondent is to provide written submissions in reply by no later than 4.00pm on 4 April 2014.
That the costs application will be decided on the papers in chambers unless either party wishes to make oral submissions. If this is so, the parties are to write a joint letter to Judges Chambers making this request no later than 4.00pm on 7 April 2014.
That in relation to Order 3 of the Application in a Case filed by the wife, if that matter is to be pursued it is to be put over to the next mention date noting that neither party agitated this issue at the Interim Hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MACKAY/BRISBANE

TVC 931 of 2011

MS SLATTERY

Applicant

And

MR MITRA

Respondent

REASONS FOR JUDGMENT

On 19 July 2012 the applicant, Ms Slattery (the applicant wife) and the Mr Mitra (the respondent husband) entered into Consent Orders in relation to the division of their property. At the time each of the parties was represented. The wife was and still is represented by Macrossan & Amiet and the husband was and still is represented…

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 Slattery and Mitra

Details

AGLC: Slattery and Mitra [2014] FCCA 555
Case: [2014] FCCA 555
Decision Date: 21 March 2014

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Willis considered an application by the wife, Slattery, against the husband, Mitra. The dispute concerned various orders sought by the wife in an application filed on 22 July 2013.

The court was required to determine whether to grant certain orders sought by the wife, specifically those numbered 1, 2, and 4 in her application. Additionally, the court addressed the issue of costs associated with the proceedings and the potential for further oral submissions regarding the wife's third requested order.

Judge Willis dismissed the wife's applications for orders 1, 2, and 4. The court also made detailed provisions for the resolution of costs, requiring written submissions from the party seeking costs by 28 March 2014, with a reply from the respondent due by 4 April 2014. The court indicated that costs would be decided on the papers unless either party requested oral submissions by 7 April 2014. Regarding the wife's third order, the court noted it had not been agitated at the interim hearing and would be adjourned to the next mention date if the wife intended to pursue it.

Orders

Orders of the court

That Orders 1, 2 and 4 of Orders sought in the Application in a Case filed on 22 July 2013 by the wife are dismissed.

In the event that the issue of costs is not resolved between the parties, the party seeking costs is to forward written submissions together with a draft order and a schedule of the Federal Circuit Court Costs Schedule with commentary regarding the costs claimed no later than 4.00pm on 28 March 2014 and the respondent is to provide written submissions in reply by no later than 4.00pm on 4 April 2014.

That the costs application will be decided on the papers in chambers unless either party wishes to make oral submissions. If this is so, the parties are to write a joint letter to Judges Chambers making this request no later than 4.00pm on 7 April 2014.

That in relation to Order 3 of the Application in a Case filed by the wife, if that matter is to be pursued it is to be put over to the next mention date noting that neither party agitated this issue at the Interim Hearing.

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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