Forster and Forster (No. 5) - [2013] FamCA 259

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 5)

[2013] FamCA 259

FAMILY LAW – PRACTICE AND PROCEDURE – Husband believes that there should be no proceeding until his appeals were determined – Held that this would be inappropriate and unreasonable to the wife.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Forster

RESPONDENT:

Mr Forster

FILE NUMBER:

ADC

3359

2007

DATE DELIVERED:

28 MARCH 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

28 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms West

SOLICITOR FOR THE APPLICANT:

Catherine Hicks & Co

THE RESPONDENT:

In Person

Orders

That all applications for final orders be adjourned for hearing before Justice Cronin as the first case in the list in Adelaide commencing on 1 July 2013 at 10 am as a two day matter and that the evidence in chief of all witnesses be given by affidavit.
That by 4 pm on 20 May 2013 the applicant file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
That the applicant pay all setting down and trial fees by 4 pm on 20 May 2013 (if they are not already paid).
That by 4 pm on 27 May 2013 the respondent file and serve upon all other parties:
(a)an amended response setting out with precision what orders are being sought (if he considers it necessary to do so);
(b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
That by 4 pm on 3 June 2013 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.
That no party file any further material other than as provided by these orders without leave of the Court.
That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.
That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.
That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar,
(a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and
(b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended…

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. 5)

Details

AGLC: Forster and Forster (No. 5) [2013] FamCA 259
Case: [2013] FamCA 259
Decision Date

CaseChat Overview and Summary

This case involved an application before the Family Court of Australia, with Ms Forster as the applicant and Mr Forster as the respondent. The dispute concerned the division of property under Part VIII of the Family Law Act 1975 (Cth). The court was required to determine the appropriate procedural pathway for the property proceedings, particularly in light of the respondent husband's pending appeals against earlier court orders.

The central legal issue was whether the property proceedings should be adjourned until the husband's appeals were determined, as he contended. The court also had to consider the wife's entitlement to have her case heard and the practical implications of the husband's appeals on the current property landscape, which had significantly changed since the original property orders were made.

Justice Cronin reasoned that adjourning the property proceedings until the appeals were resolved would be inappropriate and unreasonable to the wife, and an inefficient use of court resources. His Honour noted that the previous property orders had been set aside, creating a "blank property canvas" and that the current property consisted of cash in a trust account from the sale of a house, with title having been transferred. The court applied Rule 16.11 of the Family Law Rules 2004, which outlines the purpose of a first procedural hearing as identifying issues and determining a trial plan. The court ultimately ordered that the applications for final orders be adjourned for hearing on a specific date, with detailed directions regarding the filing and service of affidavits, financial statements, and other materials, and outlined consequences for non-compliance.

Orders