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Forster & Forster

Forster & Forster

Case [2014] FamCAFC 88

Jurisdiction

Specific Performance

Adjournments

Discovery & Disclosure

Abuse of Process

Family Law

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FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER

[2014] FamCAFC 88

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – PROPERTY – whether it was procedurally unfair or “an abuse” of discretion for orders to be made for the sale of the property – where the appellant was awaiting determination of an extension of time to appeal the property settlement orders – where the judge was aware of the pending proceedings – where the appellant was represented by litigation guardian in the previous proceedings – where the Full Court found that there was no lack of procedural fairness, a miscarriage of discretion or inadequacy of reasons for the orders for sale of the property – where the Full Court also found that leave to appeal could not be granted because the property had been sold to a bona fide purchaser.

FAMILY LAW – APPEAL - COSTS ORDERS – where the appellant challenges the costs orders made in relation to the divorce proceedings – where the Full Court found that the judge provided adequate reasons for the costs order – where the Full Court confirmed that it is not necessary for parenting orders to be in place before a divorce is granted – where the Full Court found that the appeal was without substance – appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the appellant seeks leave to appeal an order for the issue of a new certificate of title – where the certificate of title had already been issued and the property transferred – leave to appeal not granted.

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – PRACTICE AND PROCEDURE - SETTING ASIDE ORDERS – where the primary judge exercised “the inherent jurisdiction” referred to in Taylor & Taylor (1979) 143 CLR 1, to set aside property and costs orders made in the absence of a party – where the existence of the inherent jurisdiction was challenged on the basis of the amendments made to s 79A of the Family Law Act 1975 (Cth) and the High Court decision in DJL v Central Authority [2000] 201 CLR 226 – where having regard to comments by the High Court in Allesch v Maunz [2000] 203 CLR 172 the Full Court considered that there is no real distinction between the exercise of the jurisdiction under the amended s 79A of the Act and under the implied or inherent jurisdiction in a case where property settlement orders have been made in the absence of a party – where the Full Court found that Taylor v Taylor (1979) 143 CLR 1 remains good law for setting aside costs orders – appeal dismissed.

FAMILY LAW – APPEAL - APPLICATION FOR LEAVE TO APPEAL – PRACTICE AND PROCEDURE – where no utility found in the orders sought to be appealed because they related to a trial which has already been conducted – application for leave to appeal dismissed.

FAMILY LAW – APPEAL – PRACTICE AND…

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

AGLC: Forster & Forster [2014] FamCAFC 88
Case: [2014] FamCAFC 88
Decision Date

CaseChat Overview and Summary

- Parties:
The case involves Mr. Forster as the appellant and Ms. Forster as the respondent.

- Nature of the Dispute:
The dispute revolves around various family law issues, including property settlement, costs, and procedural matters, arising from the separation and subsequent divorce of the parties. The appellant challenges several orders made by various judges in the Family Court of Australia.

- Court:
The case was heard by the Full Court of the Family Court of Australia.

- Legal Issues:
The court was required to decide several legal issues, including whether it was procedurally unfair or an abuse of discretion for orders to be made for the sale of the property, whether there was a lack of procedural fairness, a miscarriage of discretion, or inadequacy of reasons for the orders for sale of the property, whether leave to appeal could be granted given the property had been sold to a bona fide purchaser, whether the judge provided adequate reasons for the costs order, whether it is necessary for parenting orders to be in place before a divorce is granted, whether the inherent jurisdiction referred to in Taylor v Taylor (1979) 143 CLR 1 remains good law for setting aside costs orders, and whether the adjournment should have been granted given the background of the case.

- Court's Reasoning and Outcome:
The Full Court found that there was no lack of procedural fairness, a miscarriage of discretion, or inadequacy of reasons for the orders for sale of the property. It also found that leave to appeal could not be granted because the property had been sold to a bona fide purchaser. The court confirmed that it is not necessary for parenting orders to be in place before a divorce is granted. It found that the judge provided adequate reasons for the costs order. The Full Court considered that there is no real distinction between the exercise of the jurisdiction under the amended s 79A of the Family Law Act 1975 (Cth) and the inherent jurisdiction in a case where property settlement orders have been made in the absence of a party. It found that Taylor v Taylor (1979) 143 CLR 1 remains good law for setting aside costs orders. The court held that notwithstanding the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the adjournment should have been granted given the background of the case, including that the appellant had never had an opportunity to present his case. The Full Court set aside the property settlement and costs orders made on 2 July 2013 and ordered a new trial.

- Final Orders:
The appeal against the orders of 30 November 2012 was dismissed. The appeal against Order 7 of the orders made on 30 November 2012 was dismissed. The application for leave to appeal Orders 1, 3 and 5 of the orders made on 23 January 2013 was dismissed. The appeal against Order 3 of the orders made on 31 January 2013 was dismissed. The application for leave to appeal Orders 1, 2 and 4 of the orders made on 31 January 2013 was dismissed. The appeal against the orders made on 2 July 2013 was allowed. The orders made on 2 July 2013 were set aside. The application for property settlement was remitted for rehearing by a judge other than the Honourable Justice Cronin on an expedited basis. There was no order for costs in relation to this appeal. The Court granted to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) and to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). The Court also granted to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

Orders