Forster and Forster - [2013] FamCAFC 51

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER

[2013] FamCAFC 51

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – STAY – where the husband seeks a stay of orders made on 31 January 2013 pending determination of special leave applications to the High Court – where the wife opposes the application – where the applicant has not laid out any basis for the stay to be granted – where on a preliminary assessment the applications have no chance of success – application dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the oral application for costs made on behalf of the wife on 31 January 2013 is further adjourned – where the wife seeks costs in relation to the orders made today – application adjourned.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT:

Mr Forster

RESPONDENT:

Ms Forster

FILE NUMBER:

ADC

3359

2007

APPEAL NUMBERS:

SOA

44 & 46

2010

DATE DELIVERED:

20 March 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

EX TEMPORE JUDGMENT OF:

Strickland J

HEARING DATE:

20 March 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 November 2012

LOWER COURT MNC:

[2012] FamCA 1028

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATES:

16 March 2009

23 April 2010

LOWER COURT MNC:

NA – consent orders
[2010] FMCAfam 395

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mrs West

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co Lawyers

Orders

Paragraphs 1, 2 and 3 of the application in an appeal filed by the husband on
15 March 2013 be dismissed.
Paragraph 4 of the said application in an appeal be adjourned to 10:00am on Thursday 6 June 2013.
The oral application for costs made on behalf of the wife on 31 January 2013 be further adjourned for hearing commencing at 10:00am on Thursday 6 June 2013.
The oral application for costs made on behalf of the wife today be adjourned for further consideration to 10:00am on Thursday 6 June 2013.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Numbers: SOA 44 & 46 of 2010
File Number: ADC 3359 of 2007

Mr Forster

Applicant

And

Ms Forster

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Today I have three applications before me.
First, the adjourned application for costs made on behalf of the wife in relation to orders made by me on 15 January 2013 and 31 January 2013.
The second application is an application in an appeal filed on 15 March 2013 by the husband seeking, in summary, an order staying the operation or enforcement of three orders that I made on 31 January 2013, pending determination of the husband’s special leave applications…

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 Forster and Forster

Details

AGLC: Forster and Forster [2013] FamCAFC 51
Case: [2013] FamCAFC 51
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Forster and Forster involved an appeal by Mr Forster against orders made by Justice Strickland on 31 January 2013. The respondent, Ms Forster, was represented by Mrs West, while Mr Forster appeared in person. The appeal related to orders made in a family law matter concerning property settlement and other related issues. Mr Forster sought a stay of the operation or enforcement of certain orders pending the determination of special leave applications to the High Court and a notice of appeal to the Full Court. The court also considered applications for costs made on behalf of Ms Forster.

The legal issues before the court were whether to grant a stay of the operation or enforcement of the orders made on 31 January 2013 pending the determination of Mr Forster's appeals and special leave applications, and whether to grant an adjournment of the costs application made on behalf of Ms Forster. The court also considered Mr Forster's application for himself to be disqualified from hearing any costs application.

Justice Strickland dismissed the applications for a stay and adjourned the costs application. In dismissing the stay applications, the court found that Mr Forster had not laid out any basis for the stay to be granted, and that on a preliminary assessment, the appeals had no chance of success. The court further found that Mr Forster had not provided any evidence that the failure to grant a stay would render the appeals nugatory. The court also noted that the orders sought to be stayed were no longer in operation or enforcement. As a result of the dismissal of the stay applications, Ms Forster's application for costs was to be considered at a later date.

No further orders were made in relation to the disqualification of Justice Strickland from hearing any costs application.

Orders