Keskin & Keskin  FamCA 33 (29 January 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/33.html
- These proceedings came before me in a Duty List on 13 January 2016. The wife sought the following orders by way of an Application in a Case filed on 30 November 2015:
- That an order be made for an urgent court hearing due to being served a ‘WRIT’ issued through the Supreme Court of Victoria filed by Bank of Queensland.
- Orders be made in respect to Intervention Orders to allow communication between parties via email and letter only, as we both self represent [sic].
- Orders to immediately appoint an Administrator to the companies [B Pty Ltd] (ACN …) and [C Pty Ltd]. (ACN …) and [D Pty Ltd] (ACN …).
- Orders that the [B Pty Ltd] (ACN …), [C Pty Ltd]. (ACN …) and [D Pty Ltd] (ACN …) referred to herein as ‘the companies’ are joined to the family court proceedings.
- Orders for ‘the companies’ to make full payment of outstanding arrears to [E School] as per orders of 6 November 2014.
- Orders for the urgent release of funds in the amount of $40,000 in the interim to be characterised at final hearing, issued by garnishee notice to the bank accounts of ‘the companies’.
- Order that Part 1 (f) of Consent Orders made on the 29th October 2015 be discharged.
- I seek order to reinstate Part 1 a), b) and c) of the dismissed orders made on 28th August 2015, that was instructed by your Honour at the time of hearing; to pay the applicant wife an equal amount for every dollar over and above $600 salary allocated to the respondent. This amount to be backdated.
- Orders to sell both properties by public auction situated at
[1 F Street, Suburb G] and [2 F Street, Suburb G] and funds to be held in trust of the conveyancing lawyers ‘Law 554’
(As per original)
- By a Response to Application in a Case filed on 13 January 2016 the husband sought the following orders:
- That the wifes Application in a case filed with this Honourable Court on 30 November 2015 be dismissed;
- That the wife pay the husbands cost of and incidental to thee[sic] proceedings
- That the wife provide to the husband copies of sale contract [I Real Estate] for [H Street]
- That the wife provide to the husband copies of sale contract
[J Real Estate] [K Street, Suburb L]
- That the wife hereby do all acts necessary to facilitate compliance with obligations pursuant to orders dated 31 March 2015 including but not limited to orders 9 and 10 Attachment C
The wife instruct her accountant to provide materials as requested by [Mr M]
- That the wife do all things necessary to facilitate compiance[sic] with her obligations pursuant to the orders dated 06 November 2014 including but not limited to order 5 Attachment A
That the wife provide statements to all her personal accounts including but not limited to
… NOT DISCLOSED
- That the wife provide full disclosure of all government assistance currently and previously received by the wife
- That the wife not withdraw daughter [N] from [E School]
(As per original)
During the interim hearing I was informed by counsel for the husband that he did not press for orders in accordance with paragraphs 2 and 4 of the Response to Application in a Case.
- The affidavit evidence of the parties was presented in emotive and confusing terms and was of limited assistance to me in determination of the interim issues. The interim hearing took place on 13 January 2016, when I reserved judgment. On 14 January 2016 the wife swore an affidavit which she apparently sought to place in evidence. No attempt whatsoever was made on behalf of the wife to seek leave to adopt that course, thus I place no reliance on the contents of this affidavit.
Conclusion as to the wife’s Application in a Case filed on 30 November 2015
- For all of the above reasons, I conclude that the wife cannot succeed in any of the relief sought in her Application in a Case filed on 30 November 2015. Accordingly, I will dismiss that application.
Conclusion as to the husband’s Response to Application in a Case
- For reasons indicated above, I conclude that the husband should not succeed in any of the relief sought by his Response to an Application in Case filed on
13 January 2016. Accordingly, I will dismiss that Response.
- For the sake of completeness, I will address the astonishing submission put by counsel for the husband that the authority of Rice and Asplund (1979)
FLC 90-725 is authority for the proposition that “if there are no new facts orders should not be interfered with”. It is absolutely clear that Rice and Asplund related to parenting proceedings and not to financial proceedings. Evatt CJ stated as follows:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be preserved. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.