Etheridge and Goddard - [2017] FCCA 800

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETHERIDGE & GODDARD

[2017] FCCA 800

Catchwords:
FAMILY LAW – Application by respondents for summary dismissal of application brought pursuant to provisions of section 79A(1)(a) of the Family Law Act 1975 – respondents married between 1991 and 2014 – respondents separated in 2005 and entered into informal agreement in respect of division of matrimonial property – agreement never formally ratified – respondents successfully sought consent property order from Family Court in May of 2016 – applicant and first respondent engaged in de facto relationship between disputed date in 2009/2011 and 2016 – during this period they occupied former matrimonial home of the respondents – property transferred into sole name of second respondent in 2013 – transfer confirmed by consent order of May 2016 – applicant seeks to set aside consent order on the basis that a miscarriage of justice has occurred – matters to be considered – principles applying to application for summary dismissal – no reasonable case – justice and equity.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AA, 75, 78, 79, 90, 117, 118

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Cases cited:

Gebert & Gebert (1990) FLC 92-137
Suriker & Suriker [1993] FLC 92-436
Semmens v Commonwealth of Australia & Collector of Customs (SA) (1990) FLC 92-116
Lancer & Lancer [2008] FamCAFC 112
Gebert & Gebert (supra) at 77, 935
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400 per Weinberg J
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Webster v Lampard (1993) 177 CLR 598
Lindon v The Commonwealth (No.2) (1996) 70 ALJR 541
Bigg v Suzi (1998) FLC 92-799

Applicant:

MR ETHERIDGE

Respondents:

MS GODDARD & MR GODDARD

File Number:

ADC 2868 of 2016

Judgment of:

Judge Brown

Hearing date:

12 December 2016

Date of Last Submission:

12 December 2016

Delivered at:

Adelaide

Delivered on:

27 April 2017

REPRESENTATION

Counsel for the Applicant:

Ms Fuda

Solicitors for the Applicant:

Peter Fisher Lawyers

Counsel for the First Respondent:

Ms Dickson

Solicitors for the First Respondent:

Minney & Associates

Counsel for the Second Respondent:

Solicitors for the Second Respondent:

Ms Ross

Hume Taylor

ORDERS

The application against the second named respondent, Mr Goddard be dismissed.
The application against the first named respondent Ms Goddard in so far as it is brought pursuant to the provisions of section 79A(1)(a) of the Family Law Act 1975 be dismissed.
The applicant pay the second respondent, Mr Goddard’s, costs fixed in the sum of $2,500.00.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 24 August 2017 at 11:00am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
Should the…

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 Etheridge and Goddard

Details

AGLC: Etheridge and Goddard [2017] FCCA 800
Case: [2017] FCCA 800
Decision Date: 27 April 2017

CaseChat Overview and Summary

This matter concerned an application brought by Ms Etheridge against Mr Goddard and Ms Goddard. The precise nature of the dispute is not detailed, however, the orders indicate it involved proceedings under section 79A(1)(a) of the *Family Law Act 1975*. The decision was made by Judge Brown in the Federal Circuit Court of Australia.

The legal issues before the Court included whether the application against Mr Goddard should be dismissed, and whether the application against Ms Goddard, specifically as brought pursuant to section 79A(1)(a) of the *Family Law Act 1975*, should be dismissed. The Court was also required to determine the appropriate orders regarding costs and future procedural steps.

Judge Brown ordered that the application against Mr Goddard be dismissed. Furthermore, the application against Ms Goddard, in so far as it was brought under section 79A(1)(a) of the *Family Law Act 1975*, was also dismissed. The applicant, Ms Etheridge, was ordered to pay Mr Goddard's costs in the sum of $2,500.00. The Court also directed the parties to attend a conciliation conference, with specific provisions regarding the payment of the conference fee and the exchange of informal discovery. Further consideration of the matter was adjourned for directions.

Orders

Orders of the court

The application against the second named respondent, Mr Goddard be dismissed.

The application against the first named respondent Ms Goddard in so far as it is brought pursuant to the provisions of section 79A(1)(a) of the Family Law Act 1975 be dismissed.

The applicant pay the second respondent, Mr Goddard’s, costs fixed in the sum of $2,500.00.

Pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 24 August 2017 at 11:00am.

Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

Should the Applicant fail to comply with Order 5 herein the conciliation conference is to be vacated and the matter is to be listed for mention before the Court.

No later than 28 days prior to the conciliation conference the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.

Further consideration of this matter is adjourned to 8 September 2017 at 9:30am for directions.

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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