Forster and Forster (No.3) - [2013] FamCA 51

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO.3)

[2013] FamCA 51

FAMILY LAW – PRACTICE AND PROCEDURE - Stay pending appeal - refused.

Family Law Act 1975 (Cth)

Bryant & The Commonwealth of Australia [1996] HCA 3
Federal Commissioner of Taxation v Myer Emporium Limited (1986) 60 ALJR 300
Jennings Construction Limited v Burgundy Royal Investments Proprietary Limited (1986) 161 CLR 681
Kelly & Kelly (1981) FLC 91-007
Molier & Van Wyk (1981) FLC 91-001
PetroTimor Companhia de Petroleos SARL v the Commonwealth of Australia [2003] FCAFC 83

APPLICANT:

Mr Forster

RESPONDENT:

Ms Forster

FILE NUMBER:

ADC

3359

2007

DATE DELIVERED:

25 January 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide/Melbourne by video link

JUDGMENT OF:

Cronin J

HEARING DATE:

25 January 2013

REPRESENTATION

THE APPLICANT:

Mr Forster in person

SOLICITOR FOR THE RESPONDENT:

Ms Hicks

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co

Orders

That the application by the husband for a stay of the orders made on 23 January 2013 is dismissed.
That the costs of the wife of this day fixed in the sum of $425 are reserved to the trial judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 3) 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 MELBOURNE

FILE NUMBER: ADC 3359 of 2007

Mr Forster

Applicant

And

Ms Forster

Respondent

REASONS FOR JUDGMENT

This is an application in a case filed late yesterday afternoon and has been brought on urgently. The Court’s resources in this particular case have been provided in this Adelaide case. Two days ago I had an urgent application brought before me because the resident Adelaide judge was in Darwin and unable to hear it. The application before me was that I direct the Registrar General of the Land Titles Office in Adelaide issue a new certificate of title to the purchaser of a property arising from a sale under orders of the Court.
This is an extremely complicated matter going back a long time and I can understand why Mr Forster, (“the husband”) has considerable concern about what happened and I have some sympathy for his position. But as I explained two days ago, I was then dealing with a discrete application and the orders were extant and I was simply carrying the orders out. The husband, as is his right, has filed this application today seeking seven orders. The first of those orders is the one that I need to separate from the others. It is an application that I stay the order that I made two days ago.
That application must fail for a number of reasons. First, the title did issue and the settlement of the sale was completed, I am told, at 11.30 am yesterday. The husband has been provided, I am told, with all of the details about the sale. The money from that sale is to be retained…

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 (No.3)

Details

AGLC: Forster and Forster (No.3) [2013] FamCA 51
Case: [2013] FamCA 51
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of Forster & Forster (No.3), heard an urgent application by Mr. Forster (the husband) for seven orders, including a stay of orders made on 23 January 2013. The respondent was Ms. Forster (the wife). The application was brought on for hearing on 25 January 2013.

The primary legal issue before the court was whether to grant a stay of the orders made on 23 January 2013, which had facilitated the sale of a property. The court was also required to consider the husband's other requested orders, including an expedited hearing for a separate stay application, the stay of a duplicate certificate of title, the termination of a restraining order, the return of property, the appointment of a litigation guardian for the wife, and a medical examination of the wife.

Justice Cronin dismissed the application for a stay of the 23 January 2013 orders, noting that the property sale had already been completed and settlement effected. The court applied established principles regarding stays, which are discretionary and require the applicant to demonstrate a basis for the relief, considering whether refusal would render an appeal nugatory and the merits of the grounds of appeal. The court found no merit in the husband's grounds of appeal, which related to insufficient information, denial of procedural fairness, and denial of natural justice. The court also found no power to grant the other requested orders, as they were either moot, beyond its jurisdiction, or unsupported by evidence.

The application by the husband for a stay of the orders made on 23 January 2013 was dismissed. The costs of the wife for the day were fixed at $425 and reserved to the trial judge.

Orders