Guinness & Guinness (No. 2) - [2008] FamCAFC 100

FAMILY COURT OF AUSTRALIA

GUINNESS & GUINNESS (NO. 2)

[2008] FamCAFC 100

FAMILY LAW - APPLICATION TO RE-OPEN – Where application made to re-open – Where orders made by consent allowing property appeal and substituting new s 79 order – Where order was valid and regularly entered – Where re-opening contested – Whether Court has power to re-open and vary order – Whether proposed variation machinery / consequential or substantive – Discussion of distinction between machinery and substantive orders – Whether extension of time is substantive or machinery – Application of Slapp & Slapp (1989) FLC 92-022 and Ravasini & Ravasini (1983) FLC 91-312 – Where variation is substantive – Whether interest pursuant to s 79 order is payable – Where in the circumstances s 117B(1) applies – Claim for interest available – Application to re-open dismissed.

FAMILY LAW - COSTS – Where appellant wholly unsuccessful – Costs ordered in favour of the respondent as agreed or assessed.

Family Law Act 1975 (Cth) – s 79, s 117B

Family Law Rules 2004 (Cth) – r 17.02, r 17.03

Martin & Harris [2007] FamCA 560
Slapp & Slapp (1989) FLC 92-022

Ravasini & Ravasini (1983) FLC 91-312

APPELLANT:

Mr Guinness

RESPONDENT:

Ms Guinness

FILE NUMBER:

SYF

3422

2002

APPEAL NUMBER:

2007

DATE DELIVERED:	8 July 2008
PLACE DELIVERED:	Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Boland & Thackray JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 January 2007

LOWER COURT MNC:

[2007] FamCA 1

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr G Johnston
SOLICITOR FOR THE APPELLANT:	Bizannes & Associates

COUNSEL FOR THE RESPONDENT:

Ms A Rees

SOLICITOR FOR THE RESPONDENT:

Anne Marie Proctor & Associates

Orders

That the husband’s application filed 8 February 2008 is dismissed.
That the husband pay the wife’s costs of and incidental to the application as agreed, and failing agreement, as assessed, under Chapter 19 of the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Guinness and Guinness (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 15 of 2007
File Number: SYF 3422 of 2002

Mr Guinness

Appellant

And

Ms Guinness

Respondent

REASONS FOR JUDGMENT

Introduction

On 7 December 2007 the husband’s appeal against parenting orders made by Cohen J on 30 June 2006, and his appeal against property orders also made by his Honour on 5 January 2007 under the Family Law Act 1975 (Cth) (“the Act”) were before us. Also before us was a cross appeal filed by the wife in respect of both the parenting and property orders. We made orders by consent allowing the appeal against the property orders, and also by consent allowed the cross appeal in part relating to some of the parenting orders. Subsequently, on 7 February 2008 we published reasons, and dismissed the balance…

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 Guinness & Guinness (No. 2)

Details

AGLC: Guinness & Guinness (No. 2) [2008] FamCAFC 100
Case: [2008] FamCAFC 100
Decision Date: 8 July 2008

CaseChat Overview and Summary

In the Family Court of Australia, the case of Guinness & Guinness (No. 2) involved an application by the husband to re-open a previous judgment. The dispute centered on the husband's request to modify an order made by consent, which had allowed a property appeal and substituted a new section 79 order. The wife contested the application, arguing that the court lacked the authority to re-open and vary the order, and that any such variation would be substantive rather than procedural.

The legal issues before the court included whether the court had the power to re-open and vary the order, and if the proposed variation was of a machinery or substantive nature. The court considered the distinction between machinery orders, which relate to the procedure and conduct of proceedings, and substantive orders, which deal with the rights and obligations of the parties. The court also discussed whether the extension of time for appeal constituted a substantive or procedural matter. The decision referenced previous cases such as Slapp & Slapp and Ravasini & Ravasini, which provided guidance on the distinction between machinery and substantive orders.

The court concluded that the proposed variation was substantive and therefore the application to re-open the order was dismissed. Additionally, the court found that interest pursuant to the section 79 order was payable and that section 117B(1) applied, allowing a claim for interest. Finally, as the husband was wholly unsuccessful in his application, the court ordered him to pay the wife's costs as agreed or assessed.

The final orders of the court were that the husband's application to re-open the judgment was dismissed and that he pay the wife's costs of and incidental to the application as agreed, and failing agreement, as assessed, under Chapter 19 of the Family Law Rules 2004.

Orders

Orders of the court

That the husband’s application filed 8 February 2008 is dismissed.

That the husband pay the wife’s costs of and incidental to the application as agreed, and failing agreement, as assessed, under Chapter 19 of the Family Law Rules 2004.

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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