Blue and Blue and Ors - [2008] FamCA 787

FAMILY COURT OF AUSTRALIA

BLUE & BLUE AND ORS

[2008] FamCA 787

FAMILY LAW – PRACTICE AND PROCEDURE – Application for deferral of property proceedings – Application dismissed

Family Law Act 1975 (Cth) s 79(5)

Ferraro v Ferraro (1993) FLC 92-335
Gartside v Inland Revenue Commissioners [1968] AC 553
Grace v Grace (1998) FLC 92-792
Kelly v Kelly (No 2) (1981) FLC 91-108
Schmidt v Rosewood Trust Limited [2003] UKPC 26
S v S [2003] FamCA 851
Van Essen v Van Essen (2000) FLC 93-028

APPLICANT:

Ms Blue

FIRST RESPONDENT:

Mr Blue

SECOND RESPONDENT:

Ms Trent

THIRD TO THIRTY FIFTH RESPONDENTS:

Others

FILE NUMBER:

BRF

3188

2005

DATE DELIVERED:

29 August 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

22 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Martin

SOLICITOR FOR THE APPLICANT:

Hirst & Co

COUNSEL FOR THE FIRST AND SECOND RESPONDENTS:

Mr Kirk SC

SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS:	Hopwood Ganim
COUNSEL FOR THE THIRD TO THIRTY FIFTH RESPONDENTS:	Mr Sullivan
SOLICITOR FOR THE THIRD TO THIRTY FIFTH RESPONDENTS:	Herbert Geer

Orders

IT IS ORDERED

The wife’s application in a case filed on 16 June 2008 for the deferral of the s 79 proceedings is dismissed.

AND IT IS CERTIFIED

It was reasonable for the parties to engage lawyers including Counsel and Senior Counsel in relation to that application.

AND IT IS FURTHER ORDERED

The wife pay the husband’s and the second respondent’s costs of and incidental to that application on the standard (party and party) basis, to be assessed by a Registrar if not agreed, the payment to be made at the same time as the settlement of the s 79 proceedings.
The wife pay the third to thirty-fifth respondents’ costs of and incidental to that application on the standard (party and party) basis, to be assessed by a Registrar if not agreed, the payment to be made within 30 days after assessment or agreement.
The matter be listed for mention and consideration of further directions at 9.30am on Friday 12 September 2008.

IT IS NOTED that publication of this judgment under the pseudonym Blue & Blue is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF3188/2005

MS BLUE

Applicant

And

MR BLUE

Respondents

MS TRENT

Second respondents

OTHERS

Third to thirty-fifth respondents

REASONS FOR JUDGMENT

By application filed on 16 June 2008 the wife seeks that the property proceedings she commenced on 3 November 2005 be deferred under s 79(5) of the Family Law Act 1975 (Cth) to a date not sooner than the completion of the development of four properties by the husband and/or entities in which she alleges he has an “interest”.
The four properties, specifically, are described as Property A, Property B, Property C and Property D.
The application for deferral is opposed by the husband and his partner who are the first and second respondents in the proceedings and by the…

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

Case: [2008] FamCA 787
Decision Date: 29 August 2008

CaseChat Overview and Summary

In the matter of *Blue and Blue and Ors*, O'Reilly J of the Federal Circuit Court of Australia considered an application by the wife for the deferral of proceedings concerning the division of property under section 79 of the *Family Law Act 1975* (Cth). The husband and a number of other respondents were involved in the proceedings.

The primary legal issue before the Court was whether the wife's application for deferral of the section 79 proceedings should be granted. The Court was also required to determine whether it was reasonable for the parties to have engaged legal representation, including counsel and senior counsel, in relation to this deferral application, and to make orders regarding the costs of that application.

O'Reilly J dismissed the wife's application for deferral. The Court found that it was reasonable for the parties to have engaged legal representation, including counsel and senior counsel, for the purpose of arguing the deferral application. Consequently, the Court ordered that the wife pay the husband's and the second respondent's costs of and incidental to the application on a standard party and party basis, with payment to be made at the same time as the settlement of the section 79 proceedings. The wife was also ordered to pay the costs of the third to thirty-fifth respondents on the same basis, to be paid within 30 days of assessment or agreement. The matter was then listed for mention and further directions.

Orders

Orders of the court

IT IS ORDERED

The wife’s application in a case filed on 16 June 2008 for the deferral of the s 79 proceedings is dismissed.

AND IT IS CERTIFIED

It was reasonable for the parties to engage lawyers including Counsel and Senior Counsel in relation to that application.

AND IT IS FURTHER ORDERED

The wife pay the husband’s and the second respondent’s costs of and incidental to that application on the standard (party and party) basis, to be assessed by a Registrar if not agreed, the payment to be made at the same time as the settlement of the s 79 proceedings.

The wife pay the third to thirty-fifth respondents’ costs of and incidental to that application on the standard (party and party) basis, to be assessed by a Registrar if not agreed, the payment to be made within 30 days after assessment or agreement.

The matter be listed for mention and consideration of further directions at 9.30am on Friday 12 September 2008.

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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