Forster & Forster & Anor - [2013] FamCAFC 20

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER AND ANOR

[2013] FamCAFC 20

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISMISSAL – where the applicant seeks that the appeal judge disqualify himself – where the wife opposes the application – where the test of apprehended bias is not satisfied – application dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – CONSEQUENTIAL ORDERS – where the applicant seeks a stay of the orders made pending appeal to the appropriate jurisdiction – where the applicant seeks that the respondent bear the costs of the application – where there is nothing in the applicant’s affidavit nor in oral submissions made that would support such orders being made – applications dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – RESPONDENT’S COSTS – where the respondent seeks costs in the sum of $900 plus GST – where the applicant opposes the order sought – where the applicant has been wholly unsuccessful in his application – where there are circumstances justifying an order for costs – costs order made as sought by the respondent.
FAMILY LAW – APPEAL – RESPONSE TO APPLICATION IN AN APPEAL – where the wife seeks an order adjourning consideration of the husband’s applications in an appeal and his appeals to enable her to file an application to set aside the orders found to be voidable – where the husband opposes that application – application granted – orders made.
FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – where the applicant seeks to file applications in an appeal seeking a stay of orders made by Dawe J on 30 November 2012 and expedition of the appeal filed against those orders – applications received but adjourned to enable the respondent to consider the applications and address them.

Family Law Act 1975 (Cth) ss 79A, 117

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

APPLICANT:

Mr Forster

FIRST RESPONDENT:

Ms Forster

SECOND RESPONDENT:

Crown Solicitor’s Office

FILE NUMBER:

ADC

3359

2007

APPEAL NUMBER:	SOA	44 & 46	of	2010
SOA	60	of	2012
SOA	91	of	2012

DATE DELIVERED:

15 January 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

15 January 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 November 2012

LOWER COURT MNC:

[2012] FamCA 1028

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATES:

23 April 2010
22 June 2010
6 December 2011

LOWER COURT MNC:

[2010] FMCAfam 395
[2010] FMCAfam 755
[2011] FMCAfam 1310

REPRESENTATION

FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mrs West

SOLICITOR FOR THE FIRST RESPONDENT:

Catherine Hicks & Co Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Ms Watson

Orders

The application in a case filed by the husband on 11 January 2013 be dismissed.
The husband pay to the wife costs in the sum of SEVEN HUNDRED 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 AND ANOR [2013] FamCAFC 20
Case: [2013] FamCAFC 20
Decision Date: 15 January 2013

CaseChat Overview and Summary

The case of Forster & Forster & Anor involved a dispute between the husband and the wife, with proceedings being heard in the Supreme Court of South Australia. The husband filed an application on 11 January 2013, seeking various reliefs, which the court was required to adjudicate. The wife, in response, filed an initiating application on 18 January 2013 seeking to set aside previous orders for property settlement and costs made in 2010 and 2011, respectively. Additionally, the husband had filed various applications for leave to appeal and notices of appeal, which also needed consideration.

The court had to decide on the admissibility and merits of the husband’s application filed on 11 January 2013, the wife’s initiating application dated 18 January 2013, and the husband’s applications for leave to appeal and notices of appeal. The court also needed to determine the appropriate costs and the timing for the wife’s initiating application and the husband’s appeals. The court had to balance the procedural fairness and the urgency of the wife’s application against the procedural steps required for the husband’s applications.

The court dismissed the husband's application filed on 11 January 2013 and ordered the husband to pay the wife costs of $750 plus GST within 28 days. The court also adjourned the husband's applications for leave to appeal and notices of appeal, except for the one filed on 17 December 2012, to a directions hearing on 31 January 2013. The wife's initiating application was to be filed and served by 18 January 2013 and listed before the court on 31 January 2013. The husband's appeal applications filed on 15 January 2013 were also adjourned to the same directions hearing. The court reserved the question of costs.

These orders reflect the court's approach to managing the procedural aspects of the case while ensuring that the substantive issues are addressed in a timely and efficient manner.

Orders

Orders of the court

The application in a case filed by the husband on 11 January 2013 be dismissed.

The husband pay to the wife costs in the sum of SEVEN HUNDRED AND FIFTY DOLLARS [$750] plus GST such payment to be made within twenty-eight [28] days of the date hereof.

The husband’s applications for leave to appeal and Notices of Appeal SAVE AND EXCEPT his Notice of Appeal filed on 17 December 2012 be adjourned to 10:00am on Thursday 31 January 2013.

By close of business on Friday 18 January 2013 in file number ADC 3359 of 2007 the wife file and serve an Initiating Application seeking that the orders for property settlement made on 23 April 2010 (as varied by order made on

1 October 2010), and the order for costs in favour of the wife made on

6 December 2011, be set aside, and seeking such orders for property settlement and costs as she may be advised, with such application to be listed before the Honourable Justice Strickland at 10:00am on Thursday 31 January 2013.

The husband’s applications in an appeal tendered today and filed on 15 January 2013 in appeal file number SOA 91 of 2012 be adjourned to a directions hearing at 10:00am on Thursday 31 January 2013.

Reserve the question of costs.

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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