Downard and Downard & Anor - [2014] FamCA 1122

FAMILY COURT OF AUSTRALIA

DOWNARD & DOWNARD AND ANOR

[2014] FamCA 1122

FAMILY LAW – JURISDICTION – Accrued – where wife seeks a declaration that the interests of the husband and wife in a farming property is held on trust for their adult son – where husband had entered into contract for sale with third party – where wife seeks to litigate in the Family Court but the respondents seek to pursue the matter in another jurisdiction – s 78 does not raise questions of accrued jurisdiction.

FAMILY LAW – INJUNCTIONS – Jurisdiction and Generally – anti-suit injunction – where wife sought an injunction restraining the respondents from pursuing their claims in another jurisdiction – where wife not a party to the proceedings – wife’s application dismissed – where son sought an injunction restraining first respondent from pursuing his claim in another jurisdiction – son’s application dismissed.

Evidence Act 1995 (Cth) s 131(2)
Family Law Act 1975 (Cth) s 78, 79, 106B
Real Property Act 1886 (SA) s 191

Antman & Antman (1980) FLC 90-908
Balnaves & Balnaves (1988) 12 Fam LR 488
Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1
Bigg & Suzi (1998) FLC 92-799
CSR Limited v Signa Insurance Australia Limited (1977) 189 CLR 345
Dempsy & Dempsyand Ors [2008] FamCA 1065
Deputy Federal Commission of Taxation v Swain (1988) FLC 91-976
Esmore v Esmore (1979) FLC 90-711
Giumelli v Giumelli (1999) 196 CLR 101
Henry v Henry (1996) 185 CLR 571
Hilton v Guyot 159 U.S. 113 (1895)
Lederer & Hunt (2007) FLC 93-311
McCarney v McCarney (1977) FLC 90-200
R v Ross-Jones and Anor; Ex-parte Beaumont (1979) 23 ALR 179
Silver Fox Co Pty Ltd v Lenard’s Pty Ltd(No 3) (2004) 214 ALR 62; [2004] FCA 1570;
Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871
Stanford v Stanford (2012) 247 CLR 108
Valceski v Valceski [2007] NSWSC 440; (2007) FLC 93-312
Voth v Milandra Flour Mills Pty Ltd (1990) 171 CLR 538
Warby v Warby (2001) 28 Fam LR 443

APPLICANT:

Ms Downard

FIRST RESPONDENT:

Mr Downard Snr

SECOND RESPONDENT:

Mr Downard Jnr

FILE NUMBER:

ADC

1178

2014

DATE DELIVERED:

15 December 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

21 August 2014,
15 & 31 October 2014,
20 November 2014,
3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGinn

SOLICITOR FOR THE APPLICANT:

Catherine Hicks & Co

COUNSEL FOR THE FIRST RESPONDENT:

Mr Besanko

SOLICITOR FOR THE FIRST RESPONDENT:

Coates Lawyers

COUNSEL FOR THE SECOND RESPONDENT:

Mr Birchall

SOLICITOR FOR THE SECOND RESPONDENT

Armour Allen

Orders

That the interim proceedings do otherwise stand dismissed.
That any application for costs be filed on or before 4pm on 16 January 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Downard & Downard and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975

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 Downard and Downard & Anor

Details

AGLC: Downard and Downard & Anor [2014] FamCA 1122
Case: [2014] FamCA 1122
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the matter of *Downard and Downard & Anor*, Berman J of the Family Court of Australia considered a dispute concerning a farming property. The wife sought a declaration that the interests of herself and the husband in the property were held on trust for their adult son. This claim was complicated by the husband having entered into a contract for the sale of the property to a third party. The wife wished to litigate this matter in the Family Court, while the respondents sought to pursue the dispute in a different jurisdiction.

The primary legal issues before the court were whether the Family Court possessed accrued jurisdiction to hear the wife's claim, and whether an anti-suit injunction should be granted. Specifically, the court had to determine if section 78 of the *Family Law Act 1975* (Cth) could give rise to accrued jurisdiction in these circumstances. Furthermore, the court considered applications for injunctions to restrain proceedings in another jurisdiction, brought by both the wife and the son.

Berman J reasoned that section 78 of the *Family Law Act 1975* does not raise questions of accrued jurisdiction. The court also dismissed the wife's application for an injunction restraining the respondents from pursuing their claims in another jurisdiction, noting that the wife was not a party to those proceedings. Similarly, the son's application for an injunction to restrain the first respondent from pursuing his claim in another jurisdiction was also dismissed.

Consequently, the interim proceedings were dismissed. The court also ordered that any application for costs be filed by 4pm on 16 January 2015.

Orders

Orders of the court

That the interim proceedings do otherwise stand dismissed.

That any application for costs be filed on or before 4pm on 16 January 2015.

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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