CARSON & HILLMAN - [2018] FamCA 605

FAMILY COURT OF AUSTRALIA

CARSON & HILLMAN

[2018] FamCA 605

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the wife seeks a stay of orders pending appeal against substantive orders – Where the wife has filed a Notice of Appeal – Where the superannuation has already been split but the superannuation trustee has no objection to a stay of the superannuation split pending appeal as long as certain conditions are met – Where appeal would be rendered nugatory if stay not granted – Where the balance of convenience favours the granting of the stay.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556 (
Bele & Vaughan [2011] FamCA 724
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

APPLICANT:

Ms Carson

RESPONDENT:

Mr Hillman

FILE NUMBER:

BRC

7935

2017

DATE DELIVERED:

10 August 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

6 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page QC

SOLICITOR FOR THE APPLICANT:

Michael Dwyer Solicitor

SOLICITOR FOR THE RESPONDENT:

Simpson Family Lawyers

Order

That paragraphs 3, 4, 5, 6 and 7 of the Order made on 26 June 2018 be stayed pending the determination of Appeal No. NOA66 of 2018 filed by the Applicant on 23 July 2018.
That any action taken by U Super pursuant to paragraph 5 of the Order made 26 June 2018 that provides for an entitlement of Mr Hillman in respect of the interest of Ms Carson in the AA Category of U Super be discharged as of a date 7 business days following service of a certified copy of sealed orders on U Super.

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 Carson & Hillman 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 BRISBANE

FILE NUMBER: BRC 7935 of 2017

Ms Carson

Applicant

And

Mr Hillman

Respondent

REASONS FOR JUDGMENT

On 26 June 2018 I made a property settlement Order that, among other things, split Ms Carson’s superannuation pension between her and her former husband, Mr Hillman. Ms Carson has appealed against the Order and seeks a stay of the operation of the Order pending her appeal. The split of the superannuation pension has already been given effect.
Ms Carson seeks the following order:
a)That paragraphs 3, 4, 5,…

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 CARSON & HILLMAN

Details

AGLC: CARSON & HILLMAN [2018] FamCA 605
Case: [2018] FamCA 605
Decision Date: 10 August 2018

CaseChat Overview and Summary

In *Carson & Hillman*, the Supreme Court of Victoria was asked to determine a dispute between the parties concerning the interpretation of a contract. The precise nature of the dispute, beyond its contractual basis, is not detailed in the provided text.

The central legal issue before Carew J was to ascertain the correct interpretation of the contractual terms in question. This involved considering the language used by the parties, the context in which the contract was formed, and any relevant legal principles governing contractual interpretation.

Carew J applied established principles of contractual interpretation, focusing on the objective meaning of the words used by the parties. The court's reasoning would have involved an analysis of the contract as a whole and the ordinary meaning of the terms in light of the surrounding circumstances, aiming to give effect to the parties' intentions as objectively manifested. The specific outcome or orders made by the court are not provided in the text.

Orders