Greta and Greta and Anor - [2007] FamCA 1404

FAMILY COURT OF AUSTRALIA

GRETA & GRETA AND ANOR

[2007] FamCA 1404

FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – Substantive application under s 79A – Rulings as to relevance of “person affected” within the meaning of s 79A – Question of the validity of orders made by consent made some years after initiating application had been marked “withdrawn” by a judge – Jurisdiction to make orders by consent thereafter when one party dies as well as issues associated with a decree nisi having become absolute – Applicants for summary dismissal unsuccessful on the basis of at least an arguable case

Family Law Act 1975 (Cth)

Allesch & Maunz [2000] 203 CLR 136
Bennett & Bennett (1985) FLC 91-617
Child Support Registrar & Nicholls (2007) 36 Fam LR 571
Licul and Ors & Corney (1976) 8 ALR 437
Lindon & Commonwealth (1996) 70 ALJR 541
Schoormans & Schoormans (1990) FLC 92-163; (1990) 14 FamLR 272
Tudor & Tudor (1992) FLC 92-273; (1992) 15 Fam LR 165; (1991) 105 FLR 246

APPLICANT:

Mr D Greta

RESPONDENTS:

Ms H Greta & Ms J Greta

FILE NUMBER:

SYC

3446

2007

DATE DELIVERED:

20 November 2007

PLACE DELIVERED:

Albury

PLACE HEARD:

Sydney

JUDGMENT OF:

Cronin J

HEARING DATE:

1 & 2 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams SC with Mr Goodman

SOLICITOR FOR THE APPLICANT:	Premium Advisory
COUNSEL FOR THE RESPONDENTS:	Mr Maiden SC with Mr Condon

SOLICITOR FOR THE RESPONDENTS:

Clinch Neville Long Letherbarrow

Orders

That the applications in a case (Form 2) filed on 29 June 2007 and 6 September 2007 be dismissed.
That the substantive proceedings be listed on a date to be fixed as may be determined by the case management judge or his delegate.
Any application by either party for costs arising out of these orders be made in written submission form and filed with the Associate to Cronin J by 4.00pm on 10 December 2007 and any response to such application by either party be in written form in the same way by no later than 4.00pm on 17 December 2007 and the determination of such submissions be in chambers to the extent that they can be.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including Senior Counsel to attend.

AND THE COURT NOTES the substantive application for determination under s 79A of the Family Law Act1975 (Cth) is currently the subject of an application by the applicant in the Supreme Court of New South Wales before Brereton J which is listed at the end of November 2007 and which is part of a substantial litigation in that court.

IT IS NOTED that publication of this judgment under the pseudonym Greta & Greta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3446 OF 2007

MR D GRETA

Applicant

And

MS H GRETA & MS…

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

Case: [2007] FamCA 1404
Decision Date: 20 November 2007

CaseChat Overview and Summary

The applications before Cronin J concerned proceedings under s 79A of the *Family Law Act 1975* (Cth). The specific nature of the dispute between the parties, identified as Greta and Greta and Anor, is not detailed, but it is clear that the applications filed on 29 June 2007 and 6 September 2007 were dismissed.

The court was required to determine whether to dismiss the interlocutory applications before it. The substantive proceedings, which involve an application for property settlement under s 79A of the *Family Law Act 1975* (Cth), are currently the subject of separate litigation in the Supreme Court of New South Wales before Brereton J.

Cronin J dismissed the applications before him, noting that the substantive application under s 79A of the *Family Law Act 1975* (Cth) was part of substantial litigation pending in the Supreme Court of New South Wales. The substantive proceedings were adjourned to be listed on a date to be fixed. The court also made orders regarding the process for any applications for costs arising from these orders, requiring written submissions from each party by specific dates. The court certified that it was reasonable to engage counsel, including Senior Counsel, to attend the proceedings.

Orders

Orders of the court

That the applications in a case (Form 2) filed on 29 June 2007 and 6 September 2007 be dismissed.

That the substantive proceedings be listed on a date to be fixed as may be determined by the case management judge or his delegate.

Any application by either party for costs arising out of these orders be made in written submission form and filed with the Associate to Cronin J by 4.00pm on 10 December 2007 and any response to such application by either party be in written form in the same way by no later than 4.00pm on 17 December 2007 and the determination of such submissions be in chambers to the extent that they can be.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including Senior Counsel to attend.

AND THE COURT NOTES the substantive application for determination under s 79A of the Family Law Act 1975 (Cth) is currently the subject of an application by the applicant in the Supreme Court of New South Wales before Brereton J which is listed at the end of November 2007 and which is part of a substantial litigation in that court.

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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