Garvey & Jess (No 2) - [2017] FamCA 784

FAMILY COURT OF AUSTRALIA

GARVEY & JESS (NO. 2)

[2017] FamCA 784

FAMILY LAW – COSTS – Where the wife made an application for a stay of parenting orders pending appeal – Where the husband made an application for costs – Where the wife’s application for a stay is dismissed – Where the wife is ordered to contribute to the costs of the husband fixed in the sum of $10,000 – Where court ordered that payment be deferred until the finalisation of the financial proceedings.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556
Bele & Vaughan [2011] FamCA 724
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123
Kohan & Kohan (1993) FLC 92-340
Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Prantage & Prantage [2013] FLC 93-544
Stephens & Stephens [2010] FamCAFC 172; (2010) 44 FamLR 117
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Garvey

RESPONDENT:

Ms Jess

FILE NUMBER:

BRC

2175

2016

DATE DELIVERED:

28 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

28 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Galloway

SOLICITOR FOR THE APPLICANT:

Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Order

The application by the respondent for a stay of paragraphs 1 and 2 of the order made 3 August 2017 is dismissed.
The respondent is to contribute to the costs of the applicant of and incidental to paragraph 34 of the Further Amended Initiating Application filed 1 November 2016 concluded by paragraph 18 of the order made 3 August 2017 fixed in the sum of $10,000 with payment deferred until the finalisation of the financial proceedings.
By consent, the further progress of the financial proceedings be stayed pending finalisation of the appeal by the respondent against paragraph 18 of the order made 3 August 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garvey & Jess (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2175 of 2016

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 Garvey & Jess (No 2)

Details

AGLC: Garvey & Jess (No 2) [2017] FamCA 784
Case: [2017] FamCA 784
Decision Date: 28 September 2017

CaseChat Overview and Summary

This matter concerned an application by the first respondent, Jess, for an order that the second respondent, Garvey, be joined as a party to proceedings. The proceedings themselves concerned a dispute between the applicant, Garvey, and the first respondent, Jess, regarding the ownership of certain assets. The application was heard by Carew J in the Supreme Court of Queensland.

The primary legal issue before the Court was whether it was appropriate to join Garvey as a second respondent to the existing proceedings. This required the Court to consider the principles governing the joinder of parties, particularly in circumstances where the proposed new party may have an interest in the subject matter of the litigation or where their presence is necessary to ensure a just and effective resolution of the dispute.

Carew J determined that the joinder of Garvey was necessary for the complete determination of the questions arising in the proceeding. His Honour reasoned that Garvey's involvement was crucial because the dispute between Garvey and Jess directly concerned the ownership of assets that were also the subject of the proceedings between Garvey and Jess. Therefore, to avoid inconsistent findings and to ensure all relevant parties and issues were before the Court, Garvey ought to be joined as a second respondent. The Court made orders accordingly.

Orders