Hodges and Rose (No. 2) - [2014] FamCA 830

FAMILY COURT OF AUSTRALIA

HODGES & ROSE (NO. 2)

[2014] FamCA 830

FAMILY LAW – PRACTICE AND PROCEDURE – Application by wife for extension of time under conditional stay order – New material indicates no basis for the stay as submitted previously when the order was made – Application for an extension of time dismissed.

FAMILY LAW – ENFORCEMENT OF ORDERS – Application by husband for enforcement of judgment – No basis to refuse order – Part of order unpaid and interest thereon.

FAMILY LAW – COSTS – Wife to pay husband’s costs.

Family Law Act 1975 (Cth)

Fitzgerald (as child representative for A) Legal Aid Commission of Tasmania v Fish and Anor (2005) 33 Fam LR 123
Muldoon and Carlyle [2012] FamCAFC 135

APPLICANT:

Mr Hodges

RESPONDENT:

Ms Rose

FILE NUMBER:

MLC

1454

2013

DATE DELIVERED:

1 October 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dixon SC with Ms Paterson

SOLICITOR FOR THE APPLICANT:

JH Legal Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Hoult

SOLICITOR FOR THE RESPONDENT:

CE Family Lawyers

Orders

That paragraphs 4, 5, 6, and 7 of the husband’s application filed 22 September 2014 are withdrawn.
That the wife do all such things as may be required within seven (7) days of the date of these orders to sell such shares as may be necessary to satisfy the following:
(a)    The sum of $230,000 to the husband;
(b)    Interest on the husband’s entitlement in the sum of $8059; and
(c)    The husband’s costs fixed in the sum of $25,000.
That the wife pay the interest and costs referred to in the foregoing paragraph.
That the application of the husband filed 22 September 2014 and the wife’s response thereto filed 25 September 2014 are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hodges & Rose (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1454 of 2013

Mr Hodges

Applicant

And

Ms Rose

Respondent

REASONS FOR JUDGMENT

The Court granted a stay of final parenting and property orders on15 August 2014 at the request of the wife over the opposition of the husband. The stay came with conditions. The conditions were not fulfilled within the time allocated by order of the Court.
The wife who has now fulfilled those obligations, seeks by application to extend the time nunc pro tunc. For his part, the husband seeks to enforce the final property orders.
In effect, the wife seeks an indulgence which she concedes she needs. If that order is not granted, the husband seeks that he be paid the balance of what was ordered. That is, he seeks the enforcement of the order. The difference in this case is $230,000.
The history of what brought the case before the Court today only needs scant…

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 Hodges and Rose (No. 2)

Details

AGLC: Hodges and Rose (No. 2) [2014] FamCA 830
Case: [2014] FamCA 830
Decision Date: 1 October 2014

CaseChat Overview and Summary

In *Hodges and Rose (No. 2)*, Cronin J of the Family Court of Australia considered applications by both the husband and the wife. The husband sought the enforcement of a judgment, including the payment of a principal sum and interest, and his costs. The wife, in turn, applied for an extension of time under a previously made conditional stay order, asserting that new material indicated no basis for the stay as it had been presented.

The court was required to determine whether to grant the wife an extension of time to comply with the conditional stay order, and whether to grant the husband's application for enforcement of the judgment, including the payment of the outstanding sum, interest, and costs.

Cronin J dismissed the wife's application for an extension of time, finding that the new material did not support the basis upon which the stay had been granted. The court reasoned that there was no basis to refuse the husband's application for enforcement, as part of the order remained unpaid and interest had accrued. Consequently, the court ordered that the wife sell such shares as necessary within seven days to satisfy the sum of $230,000 to the husband, interest of $8,059, and the husband's costs fixed at $25,000. The wife was ordered to pay this interest and these costs. The husband's application and the wife's response thereto were otherwise dismissed.

Orders

Orders of the court

That paragraphs 4, 5, 6, and 7 of the husband’s application filed 22 September 2014 are withdrawn.

That the wife do all such things as may be required within seven (7) days of the date of these orders to sell such shares as may be necessary to satisfy the following:

(a) The sum of $230,000 to the husband;

(b) Interest on the husband’s entitlement in the sum of $8059; and

That the wife pay the interest and costs referred to in the foregoing paragraph.

That the application of the husband filed 22 September 2014 and the wife’s response thereto filed 25 September 2014 are otherwise dismissed.

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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