Forster and Forster (No 3) - [2012] FamCAFC 214

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 3)

[2012] FamCAFC 214

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – where the applications and the appeals were adjourned until after delivery of judgment by the Full Court in the appeal filed by the husband whereby the Public Trustee for the State of South Australia was appointed as the Litigation Guardian for the husband – where the Full Court made orders allowing the appeal and setting aside the orders appointing the Litigation Guardian – where the issue now is whether the final parenting, the final property settlement orders and the costs orders are void or voidable – where if the orders are voidable to which court should an application be made to set them aside – where if an application is made should that be an application to set aside the orders consequential upon the decision of the Full Court, or, in relation to the property settlement orders, should it be an application pursuant to
s 79A of the Family Law Act 1975 (Cth) – where if the husband does not seek to set aside the orders should the appeals he seeks to pursue against them be allowed to proceed – where if the order that the husband pay the costs of the Litigation Guardian is void then it cannot be enforced or relied upon, but if it is voidable, or neither void nor voidable, should the husband still be required to comply with it – where, if the property settlement orders are voidable, what should be done with the husband’s appeal against the orders made by the Federal Magistrate on 22 June 2010 refusing a stay of the orders for property settlement and by way of enforcement – where the orders made here are voidable – where it should now be up to the husband to leave the orders in place or seek to set them aside – where the application to extend the time to file an appeal against the parenting orders made on 16 March 2009 is dismissed in any event – hearing to be conducted to address issues that flow from the finding that the orders are voidable.

Family Law Act 1975 (Cth) s 79A, s 79(1)(a)
Judiciary Act 1903 (Cth) s 40

Balloqui v Balloqui [1963] 3 All ER 989
Cuza and Cuza (1986) FLC 91-721
DMW & Anor v CGW (1982) 151 CLR 491
Ex parte Brocklebank; In re Brocklebank (1877) 6 Ch. D 358
Mewburn v Mewburn (1934) 51 WN (NSW) 170
Re Macks and Ors; Ex parte Saint (2000) 176 ALR 545
Residual Assco Group Ltd v Spalvins and Ors (2000) 172 ALR 366
Willshire & Willshire [2009] FamCAFC 130

APPLICANT:

Mr Forster

RESPONDENT:

Ms Forster

FILE NUMBER:

ADC

3359

2007

APPEAL NUMBERS:

SOA
SOA

44 & 46
60

of
of

2010
2012

DATE DELIVERED:

19 December 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

28 August 2012

LOWER COURT…

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

Case: [2012] FamCAFC 214
Decision Date

CaseChat Overview and Summary

The appeal against the parenting orders made on 16 March 2009 was dismissed.The appeal against the property settlement orders made on 23 April 2010 and the costs order made on 6 December 2011 will proceed, but the husband will be required to file a draft appeal index within 14 days of the date of this judgment.In the circumstances, the husband will be required to provide up to date information as to whether the orders for property settlement and/or the orders for enforcement have been executed, and if not, the state of those orders, within 14 days of the date of this judgment.An application in an appeal filed on 10 August 2010 seeking an extension of time to file a draft appeal index will also have to await the outcome of those enquiries.A hearing will be conducted to address the issues that flow from the finding that the orders are voidable.

Orders