Forster and Forster (No 8) - [2013] FamCA 582

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO 8)

[2013] FamCA 582

FAMILY LAW – Stay application pending appeal – Ample opportunity for appellant to place material before the Court having regard to previous applications – Experienced litigant knowing what was required but failing to produce any material that would justify a stay – Stay refused – Costs – s 117 considered – Order for costs thrown away.

Family Law Act 1975 (Cth)

Forster and Forster (No 3) [2013] FamCA 51
Forster and Forster (No 7) [2013] FamCA 522

APPLICANT:

Mr Forster

RESPONDENT:

Ms Forster

FILE NUMBER:

ADC

3359

2007

DATE DELIVERED:

8 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 July 2013

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Cox

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks

Orders

That the husband’s application for a stay set out in the application in a case filed 18 July 2013 is dismissed.
Upon the wife’s response to the husband’s application, the sum of $1928.85 held by the Ms D Trust Account be applied in part satisfaction of the wife’s outstanding costs order made on 2 July 2013.
That the husband pay the wife’s costs fixed in the sum of $880.
That the response to the application in a case filed 26 July 2013 is otherwise dismissed.

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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 3359 of 2007

Mr Forster

Applicant

And

Ms Forster

Respondent

REASONS FOR JUDGMENT

By an application filed 18 July 2013, Mr Forster sought a stay of final orders I made on 2 July 2013. He sought a stay pending his appeal being determined by the Full Court of the Family Court of Australia. In effect, he sought that money deposited in the wife’s solicitor’s trust account remain there until the Full Court determination. A stay is opposed by a response filed by the wife on 26 July 2013.
In his affidavit in support of the application, Mr Forster said (and I am summarising only the matters I consider relevant to my determination) the following:
· At paragraph 24, he said there were special and extraordinary circumstances that justified a stay which was in effect, the need to preserve the subject matter of the appeal but secondly, if the stay was not granted, such an order would render his appeal nugatory;
· At paragraph 25, he said Strickland J’s orders of 31 January 2013 were void in addition to which, I had abused my discretion (his expression) by excluding previous affidavits when I ordered the matter be set down for trial in March 2013. Further, that I had erred in law by imposing restrictions about the service by him of documents. He said I had also abused my discretion by failing to…

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 8)

Details

AGLC: Forster and Forster (No 8) [2013] FamCA 582
Case: [2013] FamCA 582
Decision Date: 8 August 2013

CaseChat Overview and Summary

In *Forster and Forster (No 8)*, Cronin J of the Family Court of Australia considered an application by the husband for a stay of proceedings and the wife's response to that application, which also sought to apply funds towards an outstanding costs order. The dispute concerned the application of funds held in trust and the husband's attempt to halt further action.

The primary legal issue before the court was whether the husband was entitled to a stay of proceedings. Ancillary to this, the court had to determine how funds held in a trust account should be applied in satisfaction of an existing costs order made in favour of the wife.

Cronin J dismissed the husband's application for a stay, finding no grounds to support it. The court reasoned that the wife was entitled to have the funds held by Ms D Trust Account applied towards the costs order previously made. Consequently, the court ordered that a specific sum be paid from the trust account to the wife in part satisfaction of the outstanding costs. The husband was also ordered to pay the wife's further costs fixed at $880. The wife's response to the husband's application was otherwise dismissed.

Orders

Orders of the court

That the husband’s application for a stay set out in the application in a case filed 18 July 2013 is dismissed.

Upon the wife’s response to the husband’s application, the sum of $1928.85 held by the Ms D Trust Account be applied in part satisfaction of the wife’s outstanding costs order made on 2 July 2013.

That the husband pay the wife’s costs fixed in the sum of $880.

That the response to the application in a case filed 26 July 2013 is otherwise dismissed.

Background

Background to the litigation

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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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