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ARKIN & BLASBERG

ARKIN & BLASBERG

Case [2019] FamCA 476 23 July 2019

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FAMILY COURT OF AUSTRALIA

ARKIN & BLASBERG

[2019] FamCA 476

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION TO VACATE TRIAL – respondent suffering malignant cancer – respondent asserting his case was not ready for commencement of trial fixed for 30 July 2019 – case previously fixed for trial on a date prior to 30 July 2019 – trial date for that hearing vacated – considerations of fairness or otherwise of forcing respondent on for trial when he was not ready – considerations of balancing the applicant’s interests in holding the respondent to the 30 July 2019 trial date – trial date vacated to 28 October 2019.

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR MANDATORY INJUNCTION – relevant principles – detailed examination of equitable principles and their application to injunctions under s 114 of the Family Law Act.

FAMILY LAW – PROPERTY – SUPERANNUATION – application to compel respondent to create fresh binding death benefit nominations in favour of the respondent’s legal personal representative so that the proceeds of the respondent’s superannuation were dealt with under his will rather than those proceeds being disbursed to the nominated beneficiaries – consideration of aspects of part VIIIB of the Family Law Act – consent orders on that point ultimately reached.

Corporations Act 2001, Ch 2D
Evidence Act 2004, s 79
Family Law (Superannuation) Regulations 2001
Family Law Act 1975, ss 4, 79, 90XB, 90XC, 90XT, 90XV, 114
Family Law Legislation Amendment (Superannuation) Act 2001
Family Law Rules 2004, r 16.03
Insurance Contracts Act 1984, s 48A

A v Hayden (1984) 156 CLR 532
AM & MM [2005] FamCA 443
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65
Cardile v LED Builders Pty Ltd (1999) 198 CLR 38
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Coghlan & Coghlan (2005) 33 Fam LR 414
Commonwealth v Clark [1994] 2 VR 333
Commonwealth v Verwayen (1990) 170 CLR 394
Evans v Public Trustee (WA) (1991) 14 Fam LR 646
Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385.
Grimshaw v Dunbar [1953] 1 QB 408
Grusauskas v Deputy Commissioner of Taxation [2005] VSCA 49
Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32
In the Marriage of Burridge (1980) 6 Fam LR 513
In the Marriage of Coulter (1989) 13 Fam LR 421
In the Marriage of Crapp (1979) 5 Fam LR 47
In the Marriage of Georgeson (1995) 19 Fam LR 302
In the Marriage of Harris (1991) 15 Fam LR 26
In the Marriage of Harrison (1996) 20 Fam LR 322
In the Marriage of…

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: ARKIN & BLASBERG [2019] FamCA 476
Case: [2019] FamCA 476
Decision Date: 23 July 2019

CaseChat Overview and Summary

In the matter of ARKIN & BLASBERG, the applicant and respondent were involved in family law proceedings. The primary dispute concerned an application to vacate a trial date previously fixed for 30 July 2019. The respondent sought this adjournment due to suffering from malignant cancer, asserting his case was not ready for trial on the scheduled date. This followed a previous vacation of an earlier trial date. The court was also required to consider an application for a mandatory injunction and issues relating to superannuation, specifically the respondent's request to compel the creation of fresh binding death benefit nominations.

The legal issues before the court included the fairness of proceeding with the trial given the respondent's medical condition and his assertion of unreadiness, balanced against the applicant's interest in the respondent being held to the existing trial date. The court also had to determine the principles applicable to mandatory injunctions under section 114 of the *Family Law Act 1975* (Cth) and consider aspects of Part VIIIB of the *Family Law Act 1975* (Cth) concerning superannuation and binding death benefit nominations.

Wilson J considered the competing interests of the parties. In relation to the trial date, the court acknowledged the respondent's serious illness and the potential unfairness of proceeding without adequate preparation. Balancing this against the applicant's right to have the matter resolved, the court ultimately vacated the trial date. Regarding the superannuation, consent orders were reached by the parties, addressing the respondent's application to have the proceeds of his superannuation dealt with under his will rather than disbursed to nominated beneficiaries. The court ordered that agreed minutes giving effect to these reasons for judgment were to be brought in by 4pm on 25 July 2019.

Orders

Orders of the court

By 4pm on 25 July 2019 the parties are to bring in agreed minutes that give effect to these reasons for judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

ARKIN & BLASBERG [2019] FamCA 476

Most Recent Citation

Chen & Chen [2024] FedCFamC1F 48

Cases Citing This Decision

Pacek & Saltzer (No 3) [2024] FedCFamC1F 680
Citation 1 (Para 12)

…out the machinery involved in achieving the obligations recorded in the broader concept of paragraph 10 of the consent orders. [90] Arkin & Blasberg [2019] FamCA 476 (at [61]), Kain & Kain and Ors [2020] FamCA 650.…
Chen & Chen [2024] FedCFamC1F 48
Citation 2 (Para 26)

…asberg ;[30] and Warin & Warin (No 2) .[31] [26] [2020] FamCA 347. [27] [2020] FamCA 110. [28] [2022] FedCFamC1F 215. [29] [2019] FamCA 193. [30] [2019] FamCA 476. [31] [2021] FamCA 483.…
Panwar and Panwar & Anor (No 2) [2020] FamCA 724
Citation 3 (Para 13)

…Anor[44] and Kain & Kain and Ors .[45] [37] (2006) 227 CLR 57. [38] (1999) 27 Fam LR 63. [39] (2006) 36 Fam LR 454. [40] [2019] FamCAFC 128. [41] [2019] FamCA 476. [42] [2020] FamCA 178. [43] [2020] FamCA 347. [44] [2020] FamCA 602. [45] [2020] FamCA 650.…

See all citing cases →

Cases Cited

Jabour & Jabour [2019] FamCAFC 78
Citation 1 (Para 6)

…said that the decision of the Full Court in Jabour & Jabour ,[11] judgment in which was handed down on 10 May 2019 was pertinent to the point. [11] [2019] FamCAFC 78…
Paxton & Paxton [2016] FCCA 1689
Citation 2 (Para 3)

…axton v Paxton .[31] Accordingly, I agree with the submissions of counsel for the applicant about the operation of the doctrine of survivorship. [31] [2016] FCCA 1689…
Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Proprietary Limited [2015] FCA 612
Citation 3 (Para 3)

…of the point. The proper determination of the point as a matter of law was important having regard to the magnitude of the amounts involved. [12] [2015] FCA 612 [13] [1970] AC 652 [14] [2014] FamCAFC 113 [15] (2006) 15 VR 65…
Moore & Moore [2014] FamCAFC 113
Citation 4 (Para 3)

…of the point as a matter of law was important having regard to the magnitude of the amounts involved. [12] [2015] FCA 612 [13] [1970] AC 652 [14] [2014] FamCAFC 113 [15] (2006) 15 VR 65…
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Citation 5

…A v Hayden (1984) 156 CLR 532 AM & MM [2005] FamCA 443 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bradto Pty Ltd v S…
Tymbook Pty Ltd v State of Victoria [2007] VSC 140
Citation 6

…ing Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65 Cardile v LED Builders Pty Ltd (1999) 198 CLR 38 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Coghlan & Coghlan (2005) 33 Fam…
Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Citation 7 (Para 15)

…oration v O’Neill .[42] [37] (1968) 118 CLR 618 [38] (1984) 156 CLR 532 [39] (1986) 161 CLR 148 [40] (1999) 198 CLR 38 [41] (2001) 208 CLR 199 [42] (2006) 227 CLR 57…
AM & MM [2005] FamCA 443
Citation 8 (Para 3)

…and is disputed, conventionally, evidence to establish value is given by a licensed valuer as was canvassed in In the Marriage of Georgeson .[10] [9] [2005] FamCA 443 [10] (1995) 19 Fam LR 302…
Grusauskas v Deputy Commissioner of Taxation [2005] VSCA 49
Citation 9 (Para 10)

…imilar approach was adopted in Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd .[7] [5] (1953) 1 QB 408 [6] [2005] VSCA 49 [7] [1978] VR 385…
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63
Citation 10

…A v Hayden (1984) 156 CLR 532 AM & MM [2005] FamCA 443 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bradto Pty Ltd v…
Cardile v LED Builders Pty Ltd [1999] HCA 18
Citation 11

…Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65 Cardile v LED Builders Pty Ltd (1999) 198 CLR 38 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Coghlan & Coghlan (2005) 33 Fam LR 414 Commonwealth v Clark [1994] 2 VR 333 Com…
Official Receiver in Bankruptcy v Schultz [1990] HCA 45
Citation 12 (Para 12)

…the observations of the High Court in Official Receiver in Bankruptcy v Schultz .[18] [16] (1991) 14 Fam LR 646 [17] (1979) 5 Fam LR 47 [18] (1990) 170 CLR 306…
Commonwealth v Verwayen [1990] HCA 39
Citation 13

…198 CLR 38 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Coghlan & Coghlan (2005) 33 Fam LR 414 Commonwealth v Clark [1994] 2 VR 333 Commonwealth v Verwayen (1990) 170 CLR 394 Evans v Public Trustee (WA) (1991) 14 Fam LR 646 Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [197…
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1990] HCA 10
Citation 14 (Para 23)

…udgment of Brooking J where his Honour traced the historical development of the equitable jurisprudence in the issue over many centuries. [45] [1991] 1 VR 386…
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58
Citation 15

…18 CLR 618 Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65 Cardile v LED Builders Pty Ltd (1999) 198 CLR 38 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Coghlan & Coghlan (2005) 33 Fam LR 414 Commonwealth v Clark [1994] 2 VR 333 Commonwealth v Verwayen (1990) 170 CLR 394 Evans v Public Trust…
R v Ross-Jones; Ex parte Green [1984] HCA 82
Citation 16 (Para 8)

…aw court’s, as was held by the High Court in Taylor v Taylor[2] and R v Ross-Jones; Ex parte Green .[3] [1] [1941] Ch 32 [2] (1979) 143 CLR 1 [3] (1984) 156 CLR 185…
R v Bell; ex parte Lees [1980] HCA 26
Citation 17 (Para 10)

…parte Lees[34] in which the court held that the word “ injunction ” when used in s 114 connoted orders in both positive and negative terms. [34] (1980) 146 CLR 141…
Taylor v Taylor [1979] HCA 38
Citation 18

…6 Fam LR 410 Stewart v Gladstone (1877) 7 Ch D 394 Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Pty Ltd [2015] FCA 612 Taylor v Taylor (1979) 143 CLR 1 Wright v Gibbons (1949) 78 CLR 313…
Beecham Group Ltd v Bristol Laboratories Pty ltd [1968] HCA 1
Citation 19

…5 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bradto Pty Ltd v State of Victoria; Tymbook Pty Ltd v State of Victoria (2006) 15 VR 65 Cardile v LED Builders Pty Ltd (1999) 198 CLR 38 Ca…
Wright v Gibbons [1949] HCA 3
Citation 20

…(1877) 7 Ch D 394 Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Pty Ltd [2015] FCA 612 Taylor v Taylor (1979) 143 CLR 1 Wright v Gibbons (1949) 78 CLR 313…
A v Hayden ("ASIS case") [1984] HCA 67
Citation 21 (Para 15)

…lian Broadcasting Corporation v Lenah Game Meats Pty Ltd ,[41] and Australian Broadcasting Corporation v O’Neill .[42] [37] (1968) 118 CLR 618 [38] (1984) 156 CLR 532 [39] (1986) 161 CLR 148 [40] (1999) 198 CLR 38 [41] (2001) 208 CLR 199 [42] (2006) 227 CLR 57…
[1970] AC 652 [1970] AC 652
Citation 22 (Para 3)

…oper determination of the point as a matter of law was important having regard to the magnitude of the amounts involved. [12] [2015] FCA 612 [13] [1970] AC 652 [14] [2014] FamCAFC 113 [15] (2006) 15 VR 65…
[1953] 1 QB 408 [1953] 1 QB 408
Citation 23

…ee (WA) (1991) 14 Fam LR 646 Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385. Grimshaw v Dunbar [1953] 1 QB 408 Grusauskas v Deputy Commissioner of Taxation [2005] VSCA 49 Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 I…
(1953) 1 QB 408 (1953) 1 QB 408
Citation 24 (Para 10)

…te party’s case. A similar approach was adopted in Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd .[7] [5] (1953) 1 QB 408 [6] [2005] VSCA 49 [7] [1978] VR 385…

Legislation Cited

Family Law Act 1975 (Cth) 114, 4, 79, 90XB, 90XC, 90XT, 90XV
8 mentions
Family Law Rules 2004 (Cth) 16.03
2 mentions
Corporations Act 2001 (Cth)
1 mention
Family Law (Superannuation) Regulations 2001 (Cth)
1 mention (from Para 14)
Family Law Legislation Amendment (Superannuation) Act 2001 (Cth)
1 mention (from Para 14)
Insurance Contracts Act 1984 (Cth) 48A
1 mention