Davint & Mulburon (No 2)
[2015] FamCAFC 188
•25 September 2015
FAMILY COURT OF AUSTRALIA
| DAVINT & MULBURON (NO. 2) | [2015] FamCAFC 188 |
| FAMILY LAW – APPEAL – PROPERTY – Where the parties agree that the matter should be remitted for rehearing – Matter remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Davint |
| RESPONDENT: | Ms Malburon |
| FILE NUMBER: | MLC | 4677 | of | 2012 |
| APPEAL NUMBER: | SOA | 59 | of | 2014 |
| DATE DELIVERED: | 25 September 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| EX TEMPORE JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 September 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 September 2014 |
| LOWER COURT MNC: | FCCA 1944 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr R Smith |
| SOLICITOR FOR THE RESPONDENT: | Lampe Family Lawyers |
Order
The Further Amended Application Alleging Contravention filed on 10 June 2014 insofar as count 5 is concerned is remitted for rehearing to the Federal Circuit Court of Australia before a Judge other than Judge Turner.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davint & Malburon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
|
Appeal Number: SOA 59 of 2014
File Number: MLC 4677 of 2012
| Mr Davint |
Appellant
And
| Ms Malburon |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is a directions hearing in relation to this matter.
On 15 September 2015 I delivered my reasons for judgment and made orders in relation to an appeal filed by Mr Davint (“the husband”) against the orders made by Judge Turner on 1 September 2014.
What was before his Honour was a Further Amended Application Alleging Contravention filed by the husband on 10 June 2014. In that application there were five counts of alleged breaches of orders by Ms Malburon (“the wife”).
As is apparent from my reasons for judgment delivered on 15 September 2015, what his Honour did in relation to that application was to dismiss it, effectively on a summary basis, after finding that in relation to each count contained in the application that the husband was not able to successfully prosecute the claim.
As is again apparent from my reasons for judgment, I found that in relation to how his Honour dealt with one count, namely count 5, that his Honour was in error in finding that the husband had no prospect of successfully prosecuting that claim and dismissing the application. The particular ground of appeal which related to that count was Ground 4 in the Notice of Appeal filed by the husband on 8 September 2014.
In my reasons for judgment I indicated that I would be setting aside the order made by his Honour insofar as it related to count 5, and I indicated that I would need to consider whether I was able to re-exercise the discretion, or whether I must remit that matter for rehearing. Although I did receive some submissions from counsel for the wife and from the husband at the hearing of the appeal in relation to that matter, given the circumstances and the history of this matter, I must say that I was looking to see if there was a way that I could re-exercise the discretion rather than remit the matter for rehearing. I say that because this is a matter with which I have had some history, it having been before me in relation to various appeals in the past, and I have some knowledge of the issues in dispute. My thinking was that rather than sending the matter back to a judge, who would be a judge who had not heard this matter before, that it may be of assistance to the parties if I was able to re-exercise the discretion. I was keen to receive submissions today from counsel for the wife and from the husband about that, and that was the purpose of this directions hearing.
In the end result though, after hearing from both counsel for the wife and from the husband, reluctantly I accept that I am not able to re-exercise the discretion, and the matter must be remitted for rehearing. A prime reason for that is that what his Honour did of course was to summarily dismiss the application insofar as it related to count 5, and his Honour did not get to actually deal with the count itself. Given the orders that I have made, that will now have to take place. Thus, effectively the application insofar as it involves count 5 will need to be heard from its commencement, and that is not something that can easily be done by an Appeal Court.
I certify that the preceding seven (7) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 25 September 2015.
Associate:
Date: 28 September 2015
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