Belson and Belson and Ors - [2019] FamCA 797

FAMILY COURT OF AUSTRALIA

BELSON & BELSON AND ORS

[2019] FamCA 797

FAMILY LAW – PRACTICE AND PROCEDURE – Where application for summary dismissal of equitable claim by applicant wife as against paternal grandparents (the fourth and fifth respondents) – Where discussion of applicable principles – Where application dismissed – Where costs of application reserved to final hearing.

Family Law Rules 2004 (Cth) r 10.12

Ebner & Pappas [2014] FamCAFC 229
Friar & Friar [2011] FamCAFC 71
Lindon v Commonwealth of Australia(No. 2) [1996] HCA 14

APPLICANT:

Ms Belson

FIRST RESPONDENT:

Mr Belson

SECOND RESPONDENT:

Mr B Belson

THIRD RESPONDENT:

Ms C Belson

FOURTH RESPONDENT:

Mr D Belson

FIFTH RESPONDENT:

Ms E Belson

FILE NUMBER:

DUC

347

2017

DATE DELIVERED:

31 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

23 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hogg

SOLICITOR FOR THE APPLICANT:

Joplin Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Coleman SC

SOLICITOR FOR THE FIRST RESPONDENT:

Campbell Paton & Taylor

COUNSEL FOR THE SECOND RESPONDENT:

Ms Breeze

SOLICITOR FOR THE SECOND RESPONDENT:

Hughes & Co Lawyers

COUNSEL FOR THE THIRD RESPONDENT:

Ms Breeze

SOLICITOR FOR THE THIRD RESPONDENT:

Hughes & Co Lawyers

COUNSEL FOR THE FOURTH RESPONDENT:

Ms Judge

SOLICITOR FOR THE FOURTH RESPONDENT:

Garden & Montgomerie Solicitors

COUNSEL FOR THE FIFTH RESPONDENT:

Ms Judge

SOLICITOR FOR THE FIFTH RESPONDENT:

Garden & Montgomerie Solicitors

Orders

That the application for summary orders under Rule 10.12 of the Family Law Rules 2004 (Cth) by the fourth and fifth respondents be dismissed.
That costs of and incidental to the application be reserved to final hearing or agreement between the parties.

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 Belson & Belson 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 PARRAMATTA

FILE NUMBER: DUC 347 of 2017

Ms Belson

Applicant

And

Mr Belson

First Respondent

And

Mr B Belson

Second Respondent

And

Ms C Belson

Third Respondent

And

Mr D Belson

Fourth Respondent

And

Ms E Belson

Fifth Respondent

REASONS FOR JUDGMENT

The present primary proceedings relate to parenting and property settlement as between the applicant husband and the respondent wife.
On 28 September 2017 the applicant husband in his Initiating Application commenced proceedings in the Federal Circuit Court of Australia solely related to parenting seeking orders in relation to the two children of the parties’ marriage X now aged nine and Y now aged four.
The wife in her Response filed 4 December 2017 sought orders…

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 Belson and Belson and Ors

Details

AGLC: Belson and Belson and Ors [2019] FamCA 797
Case: [2019] FamCA 797
Decision Date: 31 October 2019

CaseChat Overview and Summary

In *Belson and Belson and Ors*, Foster J of the Family Court of Australia considered an application for summary orders brought by the fourth and fifth respondents. The precise nature of the underlying dispute between the parties is not detailed in the provided text, but the application sought to resolve certain aspects of the proceedings summarily.

The central legal issue before the Court was whether the application for summary orders, made pursuant to Rule 10.12 of the *Family Law Rules 2004* (Cth), should be granted. This rule typically allows for the dismissal of proceedings or parts of proceedings if they are an abuse of process or have no reasonable prospect of success.

Foster J dismissed the application for summary orders. While the specific reasoning for this dismissal is not elaborated upon in the provided text, the outcome indicates that the Court found the application did not meet the threshold for summary determination under Rule 10.12. Consequently, the costs associated with the application were reserved, to be determined at a later stage of the proceedings or by agreement between the parties.

Orders

Orders of the court

That the application for summary orders under Rule 10.12 of the Family Law Rules 2004 (Cth) by the fourth and fifth respondents be dismissed.

That costs of and incidental to the application be reserved to final hearing or agreement between the parties.

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.