FINCH & FINCH - [2013] FamCA 567

FAMILY COURT OF AUSTRALIA

FINCH & FINCH

[2013] FamCA 567

FAMILY LAW – PROPERTY – Section 79A application – Consent Orders – Setting aside consent orders – Nature of consent – Whether there is implied consent to set aside consent orders – Default of consent orders – Where the consent orders refer to a deed of employment – PRACTICE AND PROCEDURE – Summary Dismissal.

Family Law Act 1975 (Cth) ss 79A, 117(2).

Beck & Beck (2004) FLC 92-181. Bigg & Suzi (1998_ FLC 92-799. Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720. Cawthorn & Cawthorn (1998) FLC 92-805. La Rocca & La Rocca (1991) FLC 92-222. M & M (2006) FamCA 1453. McCabe & McCabe (1995) FLC 92-634. Pelerman & Pelerman (2000) FLC 93-037.
APPLICANT:	Mr Finch

RESPONDENT:

Ms Finch

FILE NUMBER:

BRC

9705

2012

DATE DELIVERED:

Brisbane

PLACE DELIVERED:

2 August 2013

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

18 March 2013

REPRESENTATION

FOR THE APPLICANT:

Mr Finch in person

COUNSEL FOR THE RESPONDENT:

Mr Looney S C

SOLICITOR FOR THE RESPONDENT:

Cassandra Pullos Lawyers

Orders

The Amended Initiating Application filed 21 December 2012 is dismissed.
The Husband pay the Wife’s costs of and incidental to the Amending Initiating Application filed 21 December 2012, excluding any costs associated with or, of and incidental to the appearance on 18 February 2013, with such costs to be agreed or, failing agreement, to be assessed in accordance with the Family Law Rules (2004) and on a party/party basis.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC 9705 of 2012

Mr Finch

Applicant

And

Ms Finch

Respondent

REASONS FOR JUDGMENT

This matter first came before me on 18 February 2013. At that time, given that the Wife sought, inter alia, summary dismissal of his Initiating Application, I urged the Husband (who appeared on his own behalf) to take the opportunity to obtain legal advice. Senior Counsel who appeared for the Wife that day provided the Applicant and the Court with written submissions (“the Wife’s submissions”). I adjourned the matter to 18 March 2013. Thus, the Husband has had the opportunity to obtain legal advice about those submissions and he filed a submission in response on 6 March 2013 (“the Husband’s submissions”).

The Applications before the Court

The Husband relies on an Amended Initiating Application (“the Application”) filed 21 December 2012. In it he seeks, by way of final relief, an order pursuant to s 79A of the Family Law Act (Cth) (“the Act”) setting aside the Consent Order made in this Court on 20 January 2012 (“the Consent Order”).
Until the receipt the Husband’s submissions on 6 March 2013, it appeared that he sought the following interim relief:
a.an injunction restraining the Wife from…

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.

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Details

AGLC: FINCH & FINCH [2013] FamCA 567
Case: [2013] FamCA 567
Decision Date: 2 August 2013

CaseChat Overview and Summary

In *Finch & Finch*, Hogan J of the Family Court of Australia considered an Amended Initiating Application filed by the Husband on 21 December 2012. The precise nature of the dispute between the parties, the Husband and the Wife, is not detailed in the provided text, but it was the subject of the application before the court.

The central legal issue before Hogan J was the determination of the Amended Initiating Application. The court was required to decide whether to grant or dismiss this application.

Hogan J ordered that the Amended Initiating Application filed on 21 December 2012 be dismissed. Furthermore, the Husband was ordered to pay the Wife’s costs associated with this application, with the exception of costs relating to the appearance on 18 February 2013. These costs are to be agreed between the parties or, failing agreement, assessed according to the Family Law Rules (2004) on a party/party basis.

Orders

Orders of the court

The Amended Initiating Application filed 21 December 2012 is dismissed.

The Husband pay the Wife’s costs of and incidental to the Amending Initiating Application filed 21 December 2012, excluding any costs associated with or, of and incidental to the appearance on 18 February 2013, with such costs to be agreed or, failing agreement, to be assessed in accordance with the Family Law Rules (2004) and on a party/party basis.

Background

Background to the litigation

Full text does not contain this section.

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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