Bain and Bain - [2016] FamCA 42

FAMILY COURT OF AUSTRALIA

BAIN & BAIN

[2016] FamCA 42

FAMILY LAW – CONTEMPT – Where the legal personal representatives of the deceased wife seek to prosecute contempt proceedings against the husband for asserted breach of Undertaking asserted to have been provided by the husband - Where preliminary application for an order pursuant to the slip rule is made – Application refused - Where preliminary application for summary disposal of the Application for Contempt is made on the basis that the Applicants do not have standing to bring and prosecute an Application for Contempt – Application declined

Family Law Act 1975 (Cth)

European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
Hall & Hayne (unreported, Family Court of Australia, Cohen J, 13 March 1995)
In the Marriage of McJarrow (1980) 50 FLR 429
R v Dunbabin; ex parte Williams (1935) 53 CLR 434
Russell & Russell (1999) FLC 92-839
Wade and Faull v Gilroy (1986) FLC 91-722

APPLICANTS:

Ms Little and Ms Searle as Legal Personal Representatives for Ms Bain

RESPONDENT:

Mr Bain

FILE NUMBER:

BRC

2481

2010

DATE DELIVERED:

4 February 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

6 October 2015; and
by further written submissions filed by the Applicants on 13 October 2015 and written submissions in response filed by the Respondent on 19 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Baston

SOLICITOR FOR THE APPLICANT:

Blair Anderson

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

HopgoodGanim

Orders

IT IS ORDERED

That the Respondent’s Application in a Case filed by leave 6 October 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bain & Bain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2481 of 2010

Ms Little and Ms Searle as Legal Personal Representatives for Ms Bain

Applicants

And

Mr Bain

Respondent

REASONS FOR JUDGMENT

Ms Bain and the Respondent, who is a solicitor, were parties to proceedings, commenced on 3 August 2011, for property adjustment orders pursuant to s 79 of the Family Law Act1975 (Cth).
During the course of the proceedings, each party prosecuted various interim applications at various times. Included within this category was an Application filed by Ms Bain - by which she sought an order that the Respondent transfer ownership of a life insurance policy (which insured her life) to her.
On 12 December 2013, I dismissed that Application. The Order made that day is as follows:
UPON THE UNDERTAKING of the husband to hold any payment received by him under the life insurance component of MLC Life Policy … in his solicitor’s trust account pending further order of the Court
IT IS ORDERED
(1)That the wife’s Interim application for the transfer of MLC life policy … and MLC life policy … is dismissed.
(2)In the event that the Respondent seeks…

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 Bain and Bain

Details

AGLC: Bain and Bain [2016] FamCA 42
Case: [2016] FamCA 42
Decision Date: 4 February 2016

CaseChat Overview and Summary

In the matter of *Bain and Bain*, Hogan J of the Family Court of Australia considered an application filed by the Respondent on 6 October 2015. The precise nature of the dispute between the parties, Mr. Bain and Mrs. Bain, is not detailed in the provided extract, nor is the specific relief sought by the Respondent.

The central legal issue before the Court was whether to grant leave for the Respondent's application to proceed. The Court was required to determine if the criteria for granting such leave were met, thereby allowing the application to be heard on its merits.

Hogan J dismissed the Respondent's application. The reasoning behind this decision, and the specific legal principles applied in reaching this outcome, are not elaborated upon in the provided text.

The Court ordered that the Respondent's Application in a Case filed by leave 6 October 2015 is dismissed.

Orders

Orders of the court

IT IS ORDERED

That the Respondent’s Application in a Case filed by leave 6 October 2015 is dismissed.

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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