Harvey and Harvey and Anor - [2017] FamCA 1111

FAMILY COURT OF AUSTRALIA

HARVEY & HARVEY AND ANOR

[2017] FamCA 1111

FAMILY LAW – PRACTICE AND PROCEDURE – adjournment application – where the Commissioner of Taxation seeks an adjournment pending the outcome of a special leave application in an unrelated proceeding – where the outcome of that appeal process will directly impact the resolution of the issue raised by the husband in the case – adjournment granted.

Family Law Act 1975 (Cth)

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Tomaras & Tomaras & Anor & The Commissioner of Taxation [2017] FamCAFC 216

APPLICANT:

Ms Harvey

RESPONDENT:

Mr Harvey

INTERVENOR:

Commissioner of Taxation

FILE NUMBER:

MLC

2362

2014

DATE DELIVERED:

22 December 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

20 November 2017

REPRESENTATION

THE APPLICANT:	In Person
THE RESPONDENT:	In Person
COUNSEL FOR THE INTERVENOR:	Mr Sest QC and Ms Jacobson

SOLICITOR FOR THE INTERVENOR:

Australian Government Solicitor

Orders

That paragraphs 6 to 9 inclusive of the Orders dated 16 June 2017 be discharged.
That within three weeks of service of the judgment of the High Court of Australia in the matter of Tomaras the applicant wife file and serve any written submissions upon which she seeks to rely with respect to paragraph 6 and 7 of the husband’s Amended Response to Initiating Application filed 7 June 2017 (“the husband’s s 90AE applications”).
That within three weeks of service of the wife’s submissions pursuant to Order 2 hereof the husband file and serve any written submission upon which he seeks to rely with respect to the husband’s s 90AE application.
That within three weeks of service of the husband’s submissions pursuant to Order 3 hereof the intervener file and serve any written submission upon which he seeks to rely with respect to the husband’s s 90AE application.
That the wife file any submissions in reply to those of the husband and the intervener within 14 days of receipt of the intervener’s submissions.
That the husband’s s 90AE applications be otherwise adjourned on a date to be fixed.

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 Harvey & Harvey and Anor 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…

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: [2017] FamCA 1111
Decision Date: 22 December 2017

CaseChat Overview and Summary

In the matter of *Harvey and Harvey and Anor*, Johns J of the Family Court of Australia considered applications made by the husband concerning financial matters. The dispute involved the husband's applications under section 90AE of the *Family Law Act 1975* (Cth), which relate to financial agreements. The wife and an intervener were also parties to the proceedings.

The primary legal issue before the court was the determination of the husband's applications made pursuant to section 90AE of the *Family Law Act 1975* (Cth). These applications sought to address certain aspects of financial agreements between the parties. The court was required to consider the submissions of all parties in relation to these applications.

Johns J reasoned that the existing orders of 16 June 2017, specifically paragraphs 6 to 9, should be discharged. The court then established a detailed timetable for the filing of written submissions by the wife, the husband, and the intervener concerning the husband's section 90AE applications. This process was designed to allow each party to present their arguments and respond to those of the other parties, with a view to the eventual determination of the applications. The court also noted that the final form of the orders was subject to their entry in the Court's records.

Orders

Orders of the court

That paragraphs 6 to 9 inclusive of the Orders dated 16 June 2017 be discharged.

That within three weeks of service of the judgment of the High Court of Australia in the matter of Tomaras the applicant wife file and serve any written submissions upon which she seeks to rely with respect to paragraph 6 and 7 of the husband’s Amended Response to Initiating Application filed 7 June 2017 (“the husband’s s 90AE applications”).

That within three weeks of service of the wife’s submissions pursuant to Order 2 hereof the husband file and serve any written submission upon which he seeks to rely with respect to the husband’s s 90AE application.

That within three weeks of service of the husband’s submissions pursuant to Order 3 hereof the intervener file and serve any written submission upon which he seeks to rely with respect to the husband’s s 90AE application.

That the wife file any submissions in reply to those of the husband and the intervener within 14 days of receipt of the intervener’s submissions.

That the husband’s s 90AE applications be otherwise adjourned on a date to be fixed.

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

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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