Spears & Caro - [2020] FamCA 985

FAMILY COURT OF AUSTRALIA

Spears & Caro [2020] FamCA 985

File number(s): CAC 1318 of 2020

Judgment of: GILL J

Date of judgment: 25 November 2020

Catchwords: FAMILY LAW – Interim proceedings – property – sole use and occupation – interaction between s 114AB and Division 11 – interaction between injunction under Family Law Act and family violence proceedings in the States and Territories – where husband consented to family violence order – whether the husband has taken any other action – whether the Family Law Act excludes the right to institute proceedings in respect of matters which could have been initiated by virtue of ss 68B or 114 whereby a party has consented to a family violence order pursuant to State or Territory legislation – statutory interpretation – where husband’s application is struck out by operation of s 114AB – orders permitting attendance on property made pursuant to s 79 as facilitative of the exercise of the discretion

Legislation:
Family Law Act 1975 (Cth) ss 79, 68B, 114, 114AB

Family Law Regulations 1984 (Cth) r 19

Family Violence Act 2016 (ACT) s 6

Cases cited:
Genesalio & Genesalio [2020] FamCAFC 113

King and King (1977) FLC 90-299

L & L [2003] FMCAfam 549

Mullane v Mullane (1983) 158 CLR 436

Nicolaou & Nicolaou (unreported, delivered 1 March 1988)

Number of paragraphs: 33

Date of hearing: 17 November 2020

Place: Canberra

Counsel for the Applicant: Mr Levet

Counsel for the Respondent: Dr Behrens

Solicitor for the Applicant: Des Leyden Law & Migration

Solicitor for the Respondent: Snedden Hall and Gallop
ORDERS

CAC 1318 of 2020

BETWEEN:
MR SPEARS

Applicant

AND:
MS CARO

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

25 NOVEMBER 2020

THE COURT ORDERS THAT:
1.The Court declares that, as a result of the operation of s 114AB of the Family Law Act 1975 (Cth) (“the Family Law Act”), the Applicant husband is not entitled to institute a proceeding for sole occupation of the property at C Street, Suburb D (“the Suburb D property”) or the property situated at F Street, G Town, NSW (“the G Town property”).
2.The husband’s sole occupancy applications are struck out and are dismissed.
3.Order 7 of the orders of 17 November 2020 is amended such that it is now in the following terms:
(a)The parties will take all steps necessary to sell the following vehicles by auction using a reserve price which will be agreed in writing between them or failing agreement as recommended by the selling agent: the motor vehicle 1; motor vehicle 2; helicopter 1 and helicopter 2; and all parts associated with these vehicles and helicopters through B Company or another agreed agent ("the selling agent"), and the husband will be responsible for initiating and progressing the sales provided that he will comply with the advice and recommendations of the agent, will authorise the agent to communicate with the wife, and will require the agent to provide the advice and recommendations the agent makes to the wife.…

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 Spears & Caro

Details

AGLC: Spears & Caro [2020] FamCA 985
Case: [2020] FamCA 985
Decision Date: 25 November 2020

CaseChat Overview and Summary

In the matter of *Spears & Caro*, heard by Gill J, the dispute concerned interim property proceedings between the applicant husband, Mr Spears, and the respondent wife, Ms Caro. The husband sought sole occupation of two properties, one at C Street, Suburb D, and another at F Street, G Town, NSW.

The central legal issues before the Court were the interaction between section 114AB and Division 11 of the *Family Law Act 1975* (Cth), and the interplay between injunctions granted under the Family Law Act and family violence proceedings in State and Territory courts. Specifically, the Court had to determine whether the husband's consent to a family violence order under State or Territory legislation precluded him from instituting proceedings for sole occupation under the Family Law Act, and whether the Family Law Act excluded the right to institute such proceedings in circumstances where a party had consented to a family violence order.

Gill J reasoned that section 114AB of the Family Law Act operated to prevent the husband from instituting proceedings for sole occupation of the properties. This conclusion was based on the statutory interpretation of section 114AB, which the Court found applied to the husband's applications. Consequently, the husband's applications for sole occupancy were struck out and dismissed. However, to facilitate the sale of certain vehicles and helicopters, the Court amended a previous order. This amended order permitted the husband to attend the Suburb D property, subject to written agreement with the wife, even if she remained in occupation, for the purpose of progressing the sale of these assets.

Orders

Orders of the court

CAC 1318 of 2020

BETWEEN:

MR SPEARS

Applicant

AND:

MS CARO

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

25 NOVEMBER 2020

THE COURT ORDERS THAT:

1. The Court declares that, as a result of the operation of s 114AB of the Family Law Act 1975 (Cth) (“the Family Law Act”), the Applicant husband is not entitled to institute a proceeding for sole occupation of the property at C Street, Suburb D (“the Suburb D property”) or the property situated at F Street, G Town, NSW (“the G Town property”).

2. The husband’s sole occupancy applications are struck out and are dismissed.

3. Order 7 of the orders of 17 November 2020 is amended such that it is now in the following terms:

(a) The parties will take all steps necessary to sell the following vehicles by auction using a reserve price which will be agreed in writing between them or failing agreement as recommended by the selling agent: the motor vehicle 1; motor vehicle 2; helicopter 1 and helicopter 2; and all parts associated with these vehicles and helicopters through B Company or another agreed agent ("the selling agent"), and the husband will be responsible for initiating and progressing the sales provided that he will comply with the advice and recommendations of the agent, will authorise the agent to communicate with the wife, and will require the agent to provide the advice and recommendations the agent makes to the wife. For the purpose of this Order, the husband is permitted to be at the Suburb D property as agreed in writing with the wife through her solicitors, even if the wife remains in occupation of the Suburb D property.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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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File number(s):	CAC 1318 of 2020
Judgment of:	GILL J
Date of judgment:	25 November 2020
Catchwords:	FAMILY LAW – Interim proceedings – property – sole use and occupation – interaction between s 114AB and Division 11 – interaction between injunction under Family Law Act and family violence proceedings in the States and Territories – where husband consented to family violence order – whether the husband has taken any other action – whether the Family Law Act excludes the right to institute proceedings in respect of matters which could have been initiated by virtue of ss 68B or 114 whereby a party has consented to a family violence order pursuant to State or Territory legislation – statutory interpretation – where husband’s application is struck out by operation of s 114AB – orders permitting attendance on property made pursuant to s 79 as facilitative of the exercise of the discretion
Legislation:	Family Law Act 1975 (Cth) ss 79, 68B, 114, 114AB Family Law Regulations 1984 (Cth) r 19 Family Violence Act 2016 (ACT) s 6
Cases cited:	Genesalio & Genesalio [2020] FamCAFC 113 King and King (1977) FLC 90-299 L & L [2003] FMCAfam 549 Mullane v Mullane (1983) 158 CLR 436 Nicolaou & Nicolaou (unreported, delivered 1 March 1988)
Number of paragraphs:	33
Date of hearing:	17 November 2020
Place:	Canberra
Counsel for the Applicant:	Mr Levet
Counsel for the Respondent:	Dr Behrens
Solicitor for the Applicant:	Des Leyden Law & Migration
Solicitor for the Respondent:	Snedden Hall and Gallop

ORDER MADE BY:	GILL J
DATE OF ORDER:	25 NOVEMBER 2020