BAUM & LOKARE - [2019] FamCA 132

FAMILY COURT OF AUSTRALIA

BAUM & LOKARE

[2019] FamCA 132

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to reopen evidence – Orders made for evidence to be reopened – Costs ordered.

Civil Procedure Act 2005 (NSW) s. 98(4)(c)
Family Law Act 1975 (Cth) s. 117
Federal Court of Australia Act 1976 (Cth) ss. 37M, 37N

Family Law Rules 2004 (Cth) r. 1.04, 19.18

Auden & Auden and Anor [2018] FamCA 831
Byrnes v Brisconnections Management Company Limited (No. 2) [2009] FCA 1432
Idoport Pty Ltd v National Australia Bank Limited & Ors [2007] NSWSC 23
Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108
Stanford & Stanford (2012) 247 CLR 108
Stoian & Fiening (Costs) [2014] FamCA 944

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT:

Ms Baum

RESPONDENT:

Mr Lokare

FILE NUMBER:

DNC

2013

DATE DELIVERED:

22 February 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

22 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Corbett Jessop Law

SOLICITOR FOR THE RESPONDENT:

Self-represented, no appearance

Orders

Leave be granted to the Respondent de facto wife to reopen her case and make orders in accordance with those sought in her Application in a Case filed on 18 February 2019, as follows:
(a)That the Respondent have leave to reopen her case for the purposes of adducing further evidence being the affidavit of Ms Baum dated 14 February 2019 and filed with this Application in a Case, including the annexures to that affidavit.
(b)That the Respondent have leave to amend the Minute of Final Order sought by the Respondent in so far as it relates to property matters as outlined in Annexure "D" of the affidavit of Ms Baum dated 14 February 2019.
The Applicant husband pay the costs of the Respondent wife in respect to her Application in a Case filed on 18 February 2019 in the sum of $4,312.66.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: DNC 17 of 2013

Ms Baum

Applicant

And

MrLokare

Respondent

EX TEMPORE JUDGMENT

In this matter, Ms Baum, the Respondent de facto wife (“the wife”), filed an Application in a Case on 18 February 2019, supported by an Affidavit, seeking to reopen evidence in circumstances where final judgment is reserved in the proceedings.
The purpose of the wife seeking to reopen her…

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.

Keep reading for free

Create a free CaseChat account to read BAUM & LOKARE and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FamCA 132
Decision Date: 22 February 2019

CaseChat Overview and Summary

In the matter of *Baum & Lokare*, heard before McClelland J, the dispute concerned an application by the respondent de facto wife to reopen her case and seek orders relating to property matters. The applicant husband was the opposing party.

The primary legal issues before the court were whether the respondent should be granted leave to reopen her case to adduce further evidence, specifically an affidavit from Ms Baum and its annexures, and whether she should be permitted to amend the Minute of Final Order concerning property matters as detailed in that affidavit.

McClelland J granted the respondent leave to reopen her case for the purpose of adducing the specified further evidence and to amend the Minute of Final Order as outlined. The court also ordered the applicant husband to pay the respondent wife's costs in relation to her application.

Orders

Orders of the court

Leave be granted to the Respondent de facto wife to reopen her case and make orders in accordance with those sought in her Application in a Case filed on 18 February 2019, as follows:

(a) That the Respondent have leave to reopen her case for the purposes of adducing further evidence being the affidavit of Ms Baum dated 14 February 2019 and filed with this Application in a Case, including the annexures to that affidavit.

(b) That the Respondent have leave to amend the Minute of Final Order sought by the Respondent in so far as it relates to property matters as outlined in Annexure "D" of the affidavit of Ms Baum dated 14 February 2019.

The Applicant husband pay the costs of the Respondent wife in respect to her Application in a Case filed on 18 February 2019 in the sum of $4,312.66.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.