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Case [2006] FamCA 179 27 March 2006

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[2006] FamCA 179

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 98 of 2005

File No. SYF 6790 of 2000

IN THE MATTER OF:

Applicant/Wife

- and -

Respondent/Husband

REASONS FOR JUDGMENT

BEFORE:Faulks DCJ, Warnick and Boland JJ
HEARD:27 October 2005

JUDGMENT: 27 March 2006

APPEARANCES:

Mr Broun QC (instructed by Guardian Legal, 2/183 Liverpool Road, Ashfield NSW 2131) appeared on behalf of the Appellant Husband.
Mr Paul (of Paul and Paul Lawyers, 15^th floor, Tattersalls Building, 179 Elizabeth Street, Sydney NSW 2000) appeared on behalf of the Respondent Wife.

APPEAL SUMMARY

MATTER:A and Z
APPEAL NUMBER: EA 98 of 2005; SYF 6790 of 2000
CORAM:Faulks DCJ, Warnick and Boland JJ
DATE OF HEARING: 27 October 2005

DATE OF JUDGMENT: 27 March 2006

CATCHWORDS:

PER FAULKS DCJ AND BOLAND J - Whether application for leave to appeal under s 94AA should be dismissed or permanently stayed because of non compliance with, or contraventions of Court’s orders – Distinction between dismissal of an appeal and dismissal of an application for leave to appeal – Consideration of consequences of dismissal of husband’s application – Meaning of undefended hearing - Whether an undefended hearing should be allowed –Balance between effective case management and need to ensure justice between the parties – Husband’s application not dismissed – Whether wife should be provided with security for costs – Requirement for security in the event husband’s application for leave to appeal is unsuccessful is not made out.

PER WARNICK J - Court has inherent jurisdiction to entertain application – The exercise of power is discretionary – A “conviction” not necessary to invoke discretion to stay or dismiss appeal – May not be necessary that contempt be shown on a prima facie basis, however something more than contravention may be required before remedy of stay/dismissal can be invoked – Remedy may be invoked in respect of failure to comply – any evidence of “reasonable excuse” for failure to comply must be considered – Not an appropriate exercise of discretion to stay or dismiss application.

Legislation

Sections 69F, 79, 94AA, 96AA, 112AB, 112AC, 112 AD, 112AP, 117(2) and Parts XIIIA and XIIIB of the Family Law Act (1975) (Cth)
Section 140 of the Evidence Act 1995 (Cth)
Rules 11.02, 11.03, 22.58 and Part 22.8 of the Family Law Rules 2004
Order 4 Rule 1A of the Family Law Rules 1984
Order 10 rule 7 of the Federal Court Rules

Case law

Abbott and Abbott (1999) FLC 92-582
Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-300
Australian Securities Commission v MacLeod (1994) 130 ALR 717
Birkett v James [1978] AC 297
Chang and Su (2002) FLC 93-117
Dickson and Dickson (No 2) (1999) FLC 92-857
Fahmi v Fahmi (1995) FLC 92-637
Hadkinson v Hadkinson [1952] 2 All ER 567
J and J [2000] FamCA 729
Lanceley and Lanceley (1994) FLC 92-491
Lenijamar Pty Limited and Ors v AGC (Advances) Limited

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.

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Details

AGLC: A & Z [2006] FamCA 179
Case: [2006] FamCA 179
Decision Date: 27 March 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning an application by a wife seeking to dismiss or permanently stay her husband's application for leave to appeal interlocutory orders. The husband sought leave to appeal orders made by Le Poer Trench J on 16 August 2005, which included directions regarding company directorships, the transfer of a property, and the withdrawal of company funds. The wife also sought security for costs of the appeal should it proceed.

The central legal issues before the Full Court were whether the husband's application for leave to appeal should be dismissed or permanently stayed due to alleged non-compliance with or contravention of court orders. This required the court to consider the distinction between dismissing an appeal and dismissing an application for leave to appeal, the consequences of such a dismissal, and the meaning and implications of an undefended hearing. Additionally, the court had to determine whether the wife should be provided with security for costs.

The majority of the court, constituted by Faulks DCJ and Boland J, found that the husband's application should not be dismissed. They considered the wife's reliance on the court's inherent power to dismiss the application, examining the asserted breaches of orders and any excuses or mitigating circumstances presented by the husband. Warnick J, in a separate judgment, also concluded that it was not an appropriate exercise of discretion to stay or dismiss the husband's application, emphasizing the discretionary nature of such powers and the need to consider any evidence of reasonable excuse for non-compliance.

The application for dismissal or permanent stay of the husband's application for leave to appeal was dismissed. The court also determined that the requirement for security for costs in the event the husband's application for leave to appeal was unsuccessful was not made out.

Orders