Wynter & Colling - [2022] FedCFamC2F 212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wynter & Colling [2022] FedCFamC2F 212

File number(s): NCC 2085 of 2015

Judgment of: JUDGE BETTS

Date of judgment: 3 March 2022

Catchwords: FAMILY LAW – PROPERTY – where the husband defaulted in his obligations causing the wife to receive less than her proper entitlement under final consent orders – where the wife initially brought enforcement proceedings and the husband then became bankrupt – whether the bankruptcy releases the husband from the debt – where the wife additionally seeks relief pursuant to s79A – effect of Bankruptcy Act – just and equitable outcome.

Legislation:
Bankruptcy Act 1966 (Cth)

Family Law Act 1975 (Cth), Pt VIII

Cases cited:
Black & Kellner (1992) FLC 92-287

Clyne v Deputy Commissioner Of Taxation (1984) 154 CLR 589

Cummings v Claremont Petroleum NL (1996) 185 CLR 124

Harris & Caladine (1992) FLC 92-217

Jones v Dunkel (1959) 101 CLR 298

McMaster [1991] 15 FLR 215

Valder & Saklani [2021] FamCAFC 142

Division: Division 2 Family Law

Number of paragraphs: 130

Date of last submission/s: 20 August 2021

Date of hearing: 19 and 20 August 2021

Place: Newcastle

Solicitors for the Applicant Byrnes Lawyers

Solicitors for the Respondent Lindeman Lawyers
ORDERS

NCC 2085 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WYNTER

Applicant

AND:
MR COLLING

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

3 MARCH 2022

THE COURT ORDERS THAT:
1.If it is necessary, the wife has leave to bring these proceedings against the husband nunc pro tunc pursuant to s 58 of the Bankruptcy Act.
2.That pursuant to s 79A(1)(c) of the Family Law Act, orders 14 and 15 of the consent order of 4 December 2015 are varied so that, in lieu of the payments to the wife set out therein, it is ordered that:
“The husband is to forthwith pay the wife the sum of $105,355.16 together with interest thereon, calculated in accordance with the relevant rules of court from 14 December 2016 to the date of payment.”

3.Pending the husband’s discharge of his obligations in accordance with order 2 herein, the husband is restrained by injunction from:
(a)Selling, disposing of, alienating or encumbering his interest in the business known as B Company other than in compliance with order 2;
(b)Obtaining unsecured personal debt in his sole name or that of the said business other than in compliance with order 2;
(c)Obtaining any chattel mortgage, secured finance against plant, equipment or motor vehicles, or any further credit in his sole name or that of the said business other than in the course of compliance with order 2.

4.The proceedings are adjourned to 9.30am on 17 March 2022 for consideration of the wife’s costs application.

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 10.14(b) Federal Circuit and Family…

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 Wynter & Colling

Details

AGLC: Wynter & Colling [2022] FedCFamC2F 212
Case: [2022] FedCFamC2F 212
Decision Date

CaseChat Overview and Summary

This case concerned a property settlement made between the parties by consent order in 2015. The husband had defaulted on his obligations under the order, causing the wife to receive $105,366.16 less than her proper entitlement. The husband then became bankrupt, but was subsequently discharged from bankruptcy. The wife sought to enforce the consent order and to vary the order pursuant to s 79A of the Family Law Act 1975. The husband opposed the wife's application. The wife was granted leave to bring her enforcement application against the husband nunc pro tunc pursuant to s 58 of the Bankruptcy Act. The wife was also granted relief pursuant to s 79A(1)(c) of the Family Law Act, which varied the consent order so that the husband was required to pay the wife $105,355.16 together with interest thereon. The husband was also restrained from selling, disposing of, alienating or encumbering his interest in the business known as B Company, obtaining unsecured personal debt, or obtaining any chattel mortgage, secured finance against plant, equipment or motor vehicles, or any further credit in his sole name or that of the said business, other than in compliance with the orders. The proceedings were adjourned to 9.30am on 17 March 2022 for consideration of the wife's costs application.

Orders