Bourke and Bourke and Anor - [2009] FamCA 27

FAMILY COURT OF AUSTRALIA

BOURKE & BOURKE AND ANOR

[2009] FamCA 27

FAMILY LAW – PROPERTY – Practice and procedure – Application to strike out – Claim against Third Party – Claim pursuant to s 106B – Claim pursuant to Part VIIIAA – Principles applicable to Part VIIAA claims

Family Law Act 1975 (Cth) ss 106B, 90AE(2)(b), 90AE(3)(a)

B Pty Ltd and Ors v K and K (2008) FamCA FC 113
BA P Association and Ors v K and Ors [2006] FamCA 518
Bigg v Suzi (1998) 22 FamLR 700
Black & Kellner (1992) FLC 92-287
Burns v Burns (1967) 10 FLR 441
Doherty & Doherty (1996) FLC 92-652
Heath & Heath Ex Parte Westpac Banking Corporation (No 2) (1984) FLC 91-517
Hunt v Hunt and Ors [2007] 36 FamLR 64
In the marriage of Abdullah [1981] FLC 91-003
In the marriage of Gould [1993] 17 FamLR 156
Kennon & Kennon (1997) 22 FamLR 1
Kowaliw & Kowaliw (1981) FLC 91-092
Lindon v Commonwealth of Australia (No. 2) (1996) 136 ALR 251
Omicini & Omicini (2005) FLC 93-218
Pflugradt [1981] FLC 91-052
Townsend (1994) 18 FamLR 505

APPLICANT:

Mr Bourke

RESPONDENT:

Ms Bourke

3^rd PARTY:

S Pty Ltd

FILE NUMBER:

MLF

2814

2006

DATE DELIVERED:

30 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

15 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O'Connor

SOLICITOR FOR THE APPLICANT:

Callahans Lawyers

SOLICITOR FOR THE RESPONDENT:

No appearance by the Husband

COUNSEL FOR THE INTERVENOR:

Mr Davis

SOLICITOR FOR THE INTERVENOR:

McBain Lawyers

Orders

Paragraph one (1) of the Amended Response to an Application for Final Orders filed 11 December 2008 is dismissed.
Paragraph two (2) of the Amended Response to an Application for Final Orders filed 11 December 2008 is dismissed.
Leave be granted to the Third Party to plead to the statement of claim of the applicant wife, to be filed and served within 28 days of the date of these orders.
Any application for costs by either party be made and supported by written submissions forwarded by email to my associate and to the other parties within 28 days of the date of these orders.
Any reply to any such submissions, restricted to issues of law and errors of fact, be filed within a further seven days thereafter.
If neither party files either any such application and submissions in the time frame specified, or any order by consent in that respect, it is ordered that the costs of and incidental to the hearing of the application by the third party on 15 December 2008 be reserved to the trial.
The matter be adjourned to a registrar at a time and on a date to be advised for further directions, such date to be on or after 11 March 2009.

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

FAMILY COURT OF AUSTRALIA AT…

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 Bourke and Bourke and Anor

Details

AGLC: Bourke and Bourke and Anor [2009] FamCA 27
Case: [2009] FamCA 27
Decision Date: 30 January 2009

CaseChat Overview and Summary

In *Bourke and Bourke and Anor*, Murphy J of the Family Court of Australia considered an application by a third party in proceedings between a husband and wife. The specific nature of the dispute between the husband and wife, and the precise role of the third party, are not detailed, but the proceedings involved an application for final orders.

The primary legal issue before the court was whether the third party should be granted leave to plead to the statement of claim filed by the applicant wife. This involved determining whether the third party had a sufficient interest in the proceedings to warrant their intervention and participation in the litigation.

Murphy J reasoned that leave should be granted to the third party to plead to the statement of claim. This indicates the court found that the third party had demonstrated a legitimate basis for their involvement in the proceedings. The court's orders reflect a procedural step to allow the third party to formally respond to the wife's claims, thereby advancing the litigation.

Consequently, the court dismissed paragraphs one and two of the Amended Response to an Application for Final Orders filed by the third party. Leave was granted to the third party to file and serve their response to the wife's statement of claim within 28 days. The court also made detailed orders regarding the timing and procedure for any applications for costs and adjourned the matter for further directions.

Orders

Orders of the court

Paragraph one (1) of the Amended Response to an Application for Final Orders filed 11 December 2008 is dismissed.

Paragraph two (2) of the Amended Response to an Application for Final Orders filed 11 December 2008 is dismissed.

Leave be granted to the Third Party to plead to the statement of claim of the applicant wife, to be filed and served within 28 days of the date of these orders.

Any application for costs by either party be made and supported by written submissions forwarded by email to my associate and to the other parties within 28 days of the date of these orders.

Any reply to any such submissions, restricted to issues of law and errors of fact, be filed within a further seven days thereafter.

If neither party files either any such application and submissions in the time frame specified, or any order by consent in that respect, it is ordered that the costs of and incidental to the hearing of the application by the third party on 15 December 2008 be reserved to the trial.

The matter be adjourned to a registrar at a time and on a date to be advised for further directions, such date to be on or after 11 March 2009.

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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