TALLANT & TALLANT - [2015] FamCA 864

FAMILY COURT OF AUSTRALIA

TALLANT & TALLANT

[2015] FamCA 864

FAMILY LAW – PROPERTY – Enforcement of Orders – Where property and spousal maintenance orders were previously made by consent by the Local Court at Suburb F – Where the wife seeks to have those orders enforced – Where the husband seeks to have his ongoing obligations under the orders discharged – Where the Court considered whether the relevant order was a property or spousal maintenance order – Where there was a notation to the original orders which was inconsistent with the order being a spousal maintenance order – Consideration of Naughton & Naughton (1983) FLC 91-327 – Where the court found the order was a spousal maintenance order capable of being varied or discharged under s 83 of the Family Law Act 1975 (Cth) – Consideration of the parties’ financial positions – Consideration of whether it would be “just” or “proper” to discharge the order – Orders made for the original orders to be discharged and for the husband to pay the wife a modest lump sum and spousal maintenance for a period of 12 months.

Bankruptcy Act 1966 (Cth) Part X
Family Law Act 1975 (Cth) ss 72, 75(2), 79(1), 79A, 81, 83(1)
Real Property Act 1900 (NSW) s 57(2)(b)

Hickey & Hickey (2003) FLC 93-143
Lutzke & Lutzke (1979) FLC 90-714
Mullane v Mullane (1983) 158 CLR 436
Naughton & Naughton (1983) FLC 91-327
Vakil &Vakil (1997) FLC 92-743
Walters & Walters (1986) FLC 91-733
Wreford & Caley (2010) 43 Fam LR 1

APPLICANT:

Mr Tallant

RESPONDENT:

Ms Tallant

FILE NUMBER:

PAC

2136

2009

DATE DELIVERED:

15 October 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

18 and 19 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

B Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Jo-Anna F S Moy Solicitor

Orders

That the orders at the second sentence of paragraph 2 and at paragraph 3 of the Terms of Settlement filed on 11 December 2003 made as orders by the Local Court, Suburb F on 12 December 2003, together with any arrears outstanding as at 15 October 2015 be discharged.
That not later than 30 November 2015 the husband pay to the wife by way of spousal maintenance the sum of $30 000.
That by way of spousal maintenance the husband pay to the wife or as directed by her in writing the sum of $750 per month, first payment on 2 November 2015 and payable on the second day of each month thereafter until the last payment which shall be paid on 2 October 2016 after which time his liability to pay spousal maintenance to the wife shall cease.
That all exhibits be released.
That both parties have leave to relist these proceedings by arrangement with the Associate to Johnston J in relation to implementation of these orders.
That these proceedings be removed from the Court’s list of active cases.

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 TALLANT & TALLANT

Details

AGLC: TALLANT & TALLANT [2015] FamCA 864
Case: [2015] FamCA 864
Decision Date: 15 October 2015

CaseChat Overview and Summary

In the matter of *Tallant & Tallant*, Johnston J of the Family Court of Australia considered an application by a wife seeking to enforce previously made consent orders for property settlement and spousal maintenance, and a counter-application by the husband seeking to discharge his ongoing obligations under those orders. The central dispute revolved around the characterisation of a specific order made by the Local Court at Suburb F.

The court was required to determine whether the relevant order constituted a property settlement order or a spousal maintenance order. This distinction was critical because property orders are generally final, whereas spousal maintenance orders are capable of variation or discharge under section 83 of the *Family Law Act 1975* (Cth). The court also had to consider whether, if the order was for spousal maintenance, it would be just and proper to discharge it, taking into account the parties' current financial circumstances.

Johnston J found that, despite a notation in the original terms of settlement that was inconsistent with a spousal maintenance order, the order in question was indeed a spousal maintenance order. Applying the principles from *Naughton & Naughton*, the court determined that it had the power to vary or discharge the order. After considering the financial positions of both parties, the court concluded that it was just and proper to discharge the original orders. The husband was ordered to pay the wife a lump sum of $30,000 by 30 November 2015 and monthly spousal maintenance of $750 from 2 November 2015 until 2 October 2016.

Orders

Orders of the court

That the orders at the second sentence of paragraph 2 and at paragraph 3 of the Terms of Settlement filed on 11 December 2003 made as orders by the Local Court, Suburb F on 12 December 2003, together with any arrears outstanding as at 15 October 2015 be discharged.

That not later than 30 November 2015 the husband pay to the wife by way of spousal maintenance the sum of $30 000.

That by way of spousal maintenance the husband pay to the wife or as directed by her in writing the sum of $750 per month, first payment on 2 November 2015 and payable on the second day of each month thereafter until the last payment which shall be paid on 2 October 2016 after which time his liability to pay spousal maintenance to the wife shall cease.

That all exhibits be released.

That both parties have leave to relist these proceedings by arrangement with the Associate to Johnston J in relation to implementation of these orders.

That these proceedings be removed from the Court’s list of active cases.

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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