Cantanor and Beidenhope (No. 2)

[2012] FamCA 421

FAMILY COURT OF AUSTRALIA

CANTANOR & BEIDENHOPE (NO. 2) [2012] FamCA 421

FAMILY LAW – PRACTICE AND PROCEDURE – where the applicant was the respondent in an appeal – where the Full Court dismissed the application for leave to appeal – where the effect of that order is that the trial judge’s orders continue to have effect – where the respondent applied to have one of the trial judge’s orders discharged – where the Full Court did not have jurisdiction to make the order, as a result of the order made by the Court dismissing the application for leave to appeal – where the application was heard by a member of the Full Court, sitting as a trial judge – where the application was allowed, and the order discharged. 

Family Law Act 1975 (Cth)

APPLICANT: Ms Cantanor

RESPONDENT: Mr Beidenhope

FILE NUMBER: BRC 117 of 2010

DATE DELIVERED: 30 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 30 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr M. Sayers

SOLICITOR FOR THE APPLICANT: Hopgood Ganim Lawyers

THE RESPONDENT: No appearance

Orders

1. Paragraph 3 of the Orders of Forrest J made on 6 January 2012 is hereby discharged.

1. The proceedings commenced by Initiating Application filed by the wife on 7 January 2010, be listed for mention before the docket registrar to whom this matter is docketed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cantanor v Beidenhope (No. 2) 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 117 of 2010

Ms Cantanor

Applicant

And

Mr Beidenhope

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Earlier today, for reasons delivered ex tempore by Coleman J, the Full Court, of which I was a member, dismissed an application for leave to appeal on the part of Mr Beidenhope, who I will call the husband. The Court’s reasons should be referred to so as to appreciate the background of this matter. 

2. The net effect of the orders made by the Full Court is that orders made by Forrest J on 6 January 2012 remain in place, and that the wife’s application to deal substantively with s 79 relief ought proceed in an orderly manner. 

3. Coleman J, in delivering the reasons of the Full Court, referred at some length to the process by which that court was satisfied that the husband had notice of the proceedings of the Full Court.  Included among the matters of which the husband had notice is paragraph 2 of the Application in an Appeal, filed 16 May 2012. 

4. That application seeks an order that “order 3 of the orders of the Family Court of Australia, made 6 January 2012, be discharged.”  Because the Full Court’s order is that Forrest J’s orders continue, the effect of which is that, just as orders remain, the Full Court does not have jurisdiction or power to make the order sought. 

5. Accordingly, in those circumstances, upon the Full Court adjourning, proceedings were reconvened by me, exercising the original jurisdiction of this court in order to deal with the Application in an Appeal earlier referred to.

6. As Dr Sayers, who appears as counsel for the wife this morning, acknowledges, it may well be that, as a matter of law and indeed common sense, the orders of the Full Court would have the effect that paragraph 3 of the orders made by Forrest J would, in any event, become redundant. 

7. However, out of an abundance of caution, and, in particular, in view of the husband’s lack of participation in the appeal (and other) proceedings as revealed in the reasons by Coleman J just delivered, it is both sensible, and in my view appropriate, to make the order sought. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 30 May 2012.

Associate: 

Date:  7 June 2012