Coventry and McNamee - [2016] FCCA 495

FEDERAL CIRCUIT COURT OF AUSTRALIA

COVENTRY & MCNAMEE

[2016] FCCA 495

Catchwords:
FAMILY LAW – Property – s.79A(1)(d) – application dismissed.

Legislation:

Family Law Act 1975 (Cth)(as amended) s.79A(1)(d)
Federal Circuit Court of Australia Act 1999 (Cth)(as amended) s.17A
Federal Circuit Court Rules 2001 (Cth)(as amended) r.13.1

Simpson & Hamlin (1984) FLC 91-576
Gavin & Garden [2011] FamCA 190
Sandrk & Sandrk (1991) FLC 92-260
Christian & Donald [2008] FamCAFC 44
Youseff & Youseff [1995] FamCA 102
Rule & Rule [2015] FCCA 3191
Lindon & Commonwealth of Australia (No.2)[1996] HCA 14
Gitane & Velacruz [2007] FamCA 183

Applicant:

MR COVENTRY

Respondent:

MS MCNAMEE

File Number:

ADC 987 of 2009

Judgment of:

Judge Mead

Hearing date:

21 October 2014

Date of Last Submission:

21 October 2014

Delivered at:

Adelaide

Delivered on:

9 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr Fryer

Solicitors for the Applicant:

Adelaide Lawyers

Counsel for the Respondent:

Ms Horvat

Solicitors for the Respondent:

Moloney and Partners

ORDERS

That the application filed herein by the husband on 25 April 2014 be summarily dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 987 of 2009

MR COVENTRY

Applicant

And

MS MCNAMEE

Respondent

REASONS FOR JUDGMENT

Introduction

On 17 March 2009 the applicant Mr Coventry filed an application for settlement of property. The respondent Ms McNamee filed a response to that application on 30 April 2009.
The parties were unable to resolve the matter and it came on for trial on 18 September 2009. Reasons for judgment were delivered on 23 December 2009 but in circumstances where a superannuation split was proposed in the reasons and procedural fairness had not been effected the final order was not made until 24 February 2010.
Under the terms of the order the husband was to transfer to the wife his interest in the former matrimonial home at Property C on or before 7 April 2011. There was also a superannuation split (in favour of the wife in the sum of $157,000) with respect to the husband’s (employer omitted) superannuation and benefits scheme.
On the same day the order was made, namely 24 February 2010, the court ordered that the question of the wife’s costs be adjourned to 12 March 2010 at 10:30am for argument and that the substantive order involving the transfer of the husband’s interest in the former matrimonial home to the wife and the split of the husband’s superannuation entitlements be stayed up to and inclusive of 12 March 2010, pending the filing by the applicant husband of a Notice of Appeal.
On 12 March 2010 an order was made by consent providing for the husband to pay to the wife’s solicitors, Moloney and Partners, the sum of $7,000 by way of payment towards the wife’s costs of the proceedings with the payment to be made on or before 9 April…

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 Coventry and McNamee

Details

AGLC: Coventry and McNamee [2016] FCCA 495
Case: [2016] FCCA 495
Decision Date: 9 March 2016

CaseChat Overview and Summary

In the matter of *Coventry and McNamee*, heard before Judge Mead, the husband sought to have certain orders made in family law proceedings set aside. The wife opposed this application.

The central legal issue before the Court was whether the husband's application to set aside the existing orders should be summarily dismissed. This required the Court to consider the merits of the husband's application and whether it had a reasonable prospect of success.

Judge Mead reasoned that the husband's application lacked sufficient grounds to warrant a full hearing. The Court applied principles relating to the finality of court orders and the threshold required to justify setting aside previously made orders. Finding no arguable case or material to support the husband's application, the Court concluded that it was appropriate to dismiss the application summarily.

Accordingly, the Court ordered that the application filed by the husband on 25 April 2014 be summarily dismissed.

Orders

Orders of the court

That the application filed herein by the husband on 25 April 2014 be summarily dismissed.

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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