Wohen and Wohen - [2009] FamCA 848

FAMILY COURT OF AUSTRALIA

WOHEN & WOHEN

[2009] FamCA 848

FAMILY LAW – PROPERTY – Interest payments – Costs

Family Law Act 1975 (Cth)

Cross & Beaumont (2007) FamCA 123
JEL and DDF No 2, (2001) FLC 93-083
S & S (unreported, Full Court of the Family Court of Australia, Baker, Lindenmayer & Rourke JJ, 11 December 1991)
Stephens and Stephens and Ors [2009] FamCA 156

APPLICANT:

Ms Wohen

RESPONDENT:

Mr Wohen

FILE NUMBER:

MLC

11911

2007

DATE DELIVERED:

3 August 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

3 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Munt

SOLICITOR FOR THE APPLICANT:

Alan J Munt

COUNSEL FOR THE RESPONDENT:

Mr Stone

SOLICITOR FOR THE RESPONDENT:

Richard Calley

Orders

That the husband pay to the wife the sum of $3484 by 4.00pm on 5 October 2009 being interest accrued on outstanding orders.
That there be no order for costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11911 of 2007

MS WOHEN

Applicant

And

MR WOHEN

Respondent

REASONS FOR JUDGMENT

On 30 October 2007, the husband and wife filed an application seeking consent orders. On 31 October 2007, Registrar Riddiford made those final orders. The major provision of the orders was that the husband was to pay to the wife $125,000 on or before 20 November 2007. I note that was only some 21 days after the making of the orders. There were other orders as well, but they are not relevant for the purposes of the issue that I have to deal with today, save for one issue. The dispute is about what interest the wife should have on the money to which she was entitled.
On 6 June 2008, Dessau J, by consent of the parties, varied the original orders of 31 October, and the order she made was that the husband pay to the wife the sum of $100,000 on or before 13 June 2008, and thereafter the balance was to be paid when the transfer of the real property in fact occurred. At that stage, that was envisaged to take place on or before 28 July 2008. On 31 March 2009, the wife was paid all of her money, including some interest. On 11 May 2009, the wife filed an application in the case in which she sought three main orders. First was that the husband pay the sum of $8069.53 interest pursuant to s 117B of the Family Law Act for the period from 31 October 2007 until 31 March 2009. Secondly, that the husband pay to the wife the mortgage instalments of $14,662 until 31 March 2009. And, thirdly, an order for costs.
In respect of the mortgage instalments, it is noted when the order is carefully examined that there was no formal application in this case for –…

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 Wohen and Wohen

Details

AGLC: Wohen and Wohen [2009] FamCA 848
Case: [2009] FamCA 848
Decision Date: 3 August 2009

CaseChat Overview and Summary

In the matter of *Wohen and Wohen*, heard before Cronin J, the dispute concerned outstanding financial orders and the wife's claim for interest accrued on those sums. The husband was ordered to pay a specific sum to the wife representing this accrued interest.

The primary legal issue before the court was the entitlement of the wife to claim interest on the outstanding amounts pursuant to the Family Law Act 1975 (Cth) and relevant rules, and the quantum of that interest.

Cronin J determined that interest was payable on the outstanding orders. The court applied the principles governing the accrual of interest on judgment debts and court orders, considering the relevant legislative provisions and rules of court that permit the recovery of such interest. The court calculated the interest based on the outstanding principal sums and the statutory rate.

The court ordered that the husband pay to the wife the sum of $3484 by 4.00pm on 5 October 2009, representing the accrued interest. Furthermore, the court made no order for costs.

Orders

Orders of the court

That the husband pay to the wife the sum of $3484 by 4.00pm on 5 October 2009 being interest accrued on outstanding orders.

That there be no order for costs.

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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