Goldman and Goldman - [2007] FamCA 578

FAMILY COURT OF AUSTRALIA

GOLDMAN & GOLDMAN

[2007] FamCA 578

FAMILY LAW - APPEAL – Leave to appeal – Husband was seeking leave to bring property proceedings 7 years after divorce – Wife enjoined from selling home pending proceedings – At trial husband sought adjournment when his solicitors withdrew – Adjournment granted subject to the payment of $4000 costs and filing of affidavits from several proposed witnesses within 10 weeks otherwise the action was to stand dismissed – Injunction dissolved on the trial judge’s own suggestion – Held costs were controversial and should have been ordered as assessed in accordance with the Family Court Rules; discharge of consent injunctive orders as raised by the trial judge raised substantive and procedural concerns where the discharge was linked to the granting of an adjournment; husband was ordered to file and serve affidavits of particular witnesses over whom he has no control – An order to strike out the application would have been more appropriate than an order for summary dismissal – Leave to appeal granted

Family Law Act 1975 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; (1981) 35 ALR 629
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Rutherford and Rutherford (1991) FLC 92-255; (1991) 15 Fam LR 1

Tudor v Tudor (1992) FLC 92-273; (1991) 15 Fam LR 165

APPLICANT:

MR GOLDMAN

RESPONDENT:

MS GOLDMAN

FILE NUMBER:

2007

APPEAL NUMBER:

MLF

6361

1992

DATE DELIVERED:

13 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Kay, Coleman and Cronin JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 and 12 February 2007

LOWER COURT MNC:

[2007] FamCA 533

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Anthony Klotz

SOLICITOR FOR THE RESPONDENT:

Batten Sacks Harvey Bruce Solicitors

Orders

That the husband be granted leave to appeal the orders of the Honourable Justice Barry of 12 February 2007.
The costs of this application be costs in the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Goldman & Goldman

FAMILY COURT OF AUSTRALIA AT MELBOURNE BY WAY OF WRITTEN SUBMISSIONS

Appeal Number: MLF 6361 of 1992
File Number: SA 16 of 2007

MR GOLDMAN

Applicant

And

MS GOLDMAN

Respondent

REASONS FOR JUDGMENT

By application filed 27 February 2007 Mr Goldman (“the husband”) sought leave to appeal against orders made by Barry J on 5 and 12 February 2007. The respondent to that application Ms Goldman (“the wife”) opposed the granting of leave to appeal.
Whilst the husband’s application was filed on 5 February 2007, the first order sought to be appealed by the husband was in fact made on 6 February 2007 and provided that the husband’s application for an adjournment of the trial of the proceedings between himself and the…

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 Goldman and Goldman

Details

AGLC: Goldman and Goldman [2007] FamCA 578
Case: [2007] FamCA 578
Decision Date: 13 June 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Kay, Coleman and Cronin JJ, considered an application by the husband for leave to appeal orders made by Barry J on 12 February 2007. The specific nature of the dispute between the parties, Mr and Mrs Goldman, and the subject matter of Barry J's orders are not detailed in the provided text.

The primary legal issue before the Full Court was whether the husband should be granted leave to appeal the earlier orders. This required the Court to assess the merits of the proposed appeal and determine if there were sufficient grounds to permit it to proceed.

The Court granted the husband leave to appeal the orders of Barry J. The costs associated with this application for leave to appeal were ordered to be costs in the substantive appeal.

Orders

Orders of the court

That the husband be granted leave to appeal the orders of the Honourable Justice Barry of 12 February 2007.

The costs of this application be costs in the appeal.

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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