Forster & Forster & Anor (No 2) - [2013] FamCAFC 21

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER AND ANOR (NO. 2)

[2013] FamCAFC 21

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – where the first respondent seeks to have the orders made on 19 December 2012 amended under Rule 17.02 of the Family Law Rules 2004 (Cth) to include a declaration that the consent parenting order made on 16 March 2009, the property settlement orders made on 23 April 2010 (as varied by the order made on 1 October 2010), and the costs order made on 6 December 2011 in favour of the wife were voidable – order amended as sought.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – where the first respondent seeks a dismissal of the applications in an appeal or those parts of the applications in an appeal and the appeals or those parts of the appeals now before the court – where the applicant opposes the orders for dismissal as sought by the first respondent – where there is no utility in any of the remaining applications in an appeal or Notices of Appeal proceeding – applications in an appeal and Notices of Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – NOTICES OF APPEAL – COSTS – where the first respondent makes an oral application for costs in relation to the orders made dismissing the various applications in an appeal and Notices of Appeal filed by the applicant – where the quantum of costs sought is not able to be provided – where the first respondent seeks an adjournment – where it is appropriate to grant the adjournment in order that the court and the applicant can be advised of the quantum of costs sought – application adjourned.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 17.02

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:

31 January 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

31 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:

16 March 2009

23 April 2010
6 December 2011

LOWER COURT MNC:

NA – consent orders
[2010] FMCAfam 395
[2011] FMCAfam 1310

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Mrs West

SOLICITOR FOR THE FIRST RESPONDENT:

Catherine Hicks & Co Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

Ms Watson

Orders

SOA 44 of 2010, SOA 46 of 2010 and SOA 60 of 2012

Pursuant to Rule 17.02 of the Rules the order made on 19 December 2012 be amended to include an order numbered 2 as follows:
(2)The consent parenting order made on 16 March 2009, the property settlement orders made on 23…

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 & Forster & Anor (No 2)

Details

AGLC: FORSTER & FORSTER AND ANOR (NO. 2) [2013] FamCAFC 21
Case: [2013] FamCAFC 21
Decision Date: 31 January 2013

CaseChat Overview and Summary

The case of Forster & Forster & Anor (No 2) involved an appeal against certain family law orders. The first respondent sought to amend the orders made on 19 December 2012 to include a declaration that certain orders made in favour of the wife were voidable. Additionally, the first respondent sought to dismiss various applications in an appeal and notices of appeal filed by the applicant. The applicant opposed these orders for dismissal.

The legal issues before the court included whether the orders should be amended as sought by the first respondent, whether the various applications in an appeal and notices of appeal should be dismissed, and whether the application for costs should proceed. The court found that there was no utility in any of the remaining applications in an appeal or notices of appeal proceeding, and therefore dismissed those applications. The court also found it appropriate to grant an adjournment for the consideration of the application for costs, to allow the court and the applicant to be advised of the quantum of costs sought.

The orders made by the court included amending the orders made on 19 December 2012 to include a declaration that certain orders were voidable. The court also dismissed various applications in an appeal and notices of appeal filed by the applicant. Finally, the court adjourned the oral application for costs made by the wife and further consideration of that part of the Notice of Appeal filed by the husband on 13 August 2012 against the order for costs made in favour of the Litigation Guardian by Federal Magistrate Lindsay on 6 December 2011.

Orders

Orders of the court

SOA 44 of 2010, SOA 46 of 2010 and SOA 60 of 2012

Pursuant to Rule 17.02 of the Rules the order made on 19 December 2012 be amended to include an order numbered 2 as follows:

(2) The consent parenting order made on 16 March 2009, the property settlement orders made on 23 April 2010 (as varied by the order made on 1 October 2010), and the costs order made on 6 December 2011 in favour of the wife, be declared voidable.

SOA 44 of 2010

That part of paragraph 1 of the amended application in an appeal filed by the husband on 27 July 2010 seeking an extension of time to appeal against final property settlement orders made on 27 October 2010 by Federal Magistrate Lindsay be dismissed.

The application in an appeal tendered and filed by the husband on 31 January 2013 be dismissed

SOA 46 of 2010

The Notice of Appeal filed on 14 July 2010 and the application in an appeal filed on 10 August 2010 be dismissed.

SOA 60 of 2012

That part of the Notice of Appeal filed on 13 August 2012 against the order made by Federal Magistrate Lindsay on 6 December 2011 providing that the husband pay the wife’s costs of and incidental to the property settlement proceedings fixed in the sum of $40,000 be dismissed.

SOA 91 of 2012

The applications in an appeal filed by the husband on 15 January 2013 be dismissed.

AND IT IS FURTHER ORDERED THAT:

The oral application for costs made by the wife and further consideration of that part of the Notice of Appeal filed by the husband on 13 August 2012 against the order for costs made in favour of the Litigation Guardian by Federal Magistrate Lindsay on 6 December 2011 be adjourned to 9:30am on Tuesday 26 February 2013.

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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