Gull and Gull (No. 2) - [2007] FamCA 857

FAMILY COURT OF AUSTRALIA

GULL & GULL

[2007] FamCA 857

FAMILY LAW - Financial - Proceedings in High Court in India - Choice of jurisdiction

Family Law Act 1975 (Cth)

Korsky & Bright & Anor [2007] FamCA 245

HUSBAND:

MR GULL

WIFE:

MRS GULL

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

2723

2004

DATE DELIVERED:

6 August 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

6 August, 2007

REPRESENTATION

SOLICITOR FOR THE HUSBAND:

Vernon Da Gama & Assoc

THE WIFE:

In person

Orders

That the evidence of the husband of 20 June, 2007 be transcribed and a copy provided to each of the parties.

That within seven days hereof the wife provide an irrevocable authority to Centrelink to give force and effect to paragraph (6)(d) of the orders made by the Honourable Justice Bennett on 20 June, 2007.

That the form 2 application filed by the wife on 6 July, 2007 and the form 2A response filed by the husband on 6 August, 2007 be otherwise dismissed.

That the husband’s costs of this day be reserved.

That the reasons for judgment this day be transcribed and that copies be made available to the parties.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

That the matter is listed for a final hearing to commence at 10:00 am. on 25 November, 2007.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Gull & Gull.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2723 of 2004

MR GULL

Husband

And

MRS GULL

Wife

REASONS FOR JUDGMENT

This matter has a long history; I do not propose to rehearse the whole of it. The parties started living together when they married, in 1991. They do not agree, as I understand the evidence, about the date of separation. The wife alleges separation occurred in 2001 when the husband went to the Middle East to work, where he remained until 2004. The husband deposes that the marriage subsisted during that period and they did not separate until 2004. On a few things the parties agree; they were divorced in 2005, they have one child, R, born in 1994, they came to Australia in 2001 and the parties and their child are all now Australian citizens. About much that has occurred since, the parties disagree.

The proceedings were commenced by the wife in Australia in this Court in 2004, seeking financial and parenting orders. Three years later the case is continuing and just under 100 documents are on the court file. It is clear - and I speak of the financial proceedings - that each of the parties alleges that the other is responsible for the delays; I can say that attempts by the court to have the matter listed for a final hearing have been, to date, in…

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 Gull and Gull (No. 2)

Details

AGLC: Gull and Gull (No. 2) [2007] FamCA 857
Case: [2007] FamCA 857
Decision Date: 6 August 2007

CaseChat Overview and Summary

In *Gull and Gull (No. 2)*, Brown J of the Family Court of Australia considered applications made by both the wife and the husband. The wife had filed a Form 2 application on 6 July 2007, and the husband had filed a Form 2A response on 6 August 2007. The specific nature of the dispute between the parties is not detailed in the provided text, beyond the fact that these applications were made in the context of ongoing family law proceedings.

The primary legal issue before the court was the determination of the applications filed by the wife and the husband. The court was required to decide whether to grant or dismiss these applications, and to make consequential orders regarding the evidence and costs. A further issue was whether the matter reasonably required the attendance of counsel, pursuant to Rule 19.50 of the *Family Law Rules 2004*.

Brown J made several orders. The court directed that evidence given by the husband on 20 June 2007 be transcribed and provided to both parties. The wife was ordered to provide an irrevocable authority to Centrelink within seven days, to give effect to a specific paragraph of earlier orders made by Justice Bennett on 20 June 2007. The wife's Form 2 application and the husband's Form 2A response were otherwise dismissed. The husband's costs for the day were reserved, and the reasons for judgment were to be transcribed and made available to the parties. The court also noted that the matter was listed for a final hearing on 25 November 2007.

Orders

Orders of the court

That the evidence of the husband of 20 June, 2007 be transcribed and a copy provided to each of the parties.

That within seven days hereof the wife provide an irrevocable authority to Centrelink to give force and effect to paragraph (6)(d) of the orders made by the Honourable Justice Bennett on 20 June, 2007.

That the form 2 application filed by the wife on 6 July, 2007 and the form 2A response filed by the husband on 6 August, 2007 be otherwise dismissed.

That the husband’s costs of this day be reserved.

That the reasons for judgment this day be transcribed and that copies be made available to the parties.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

That the matter is listed for a final hearing to commence at 10:00 am. on 25 November, 2007.

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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