Hughes & Hughes

Case [2013] FamCAFC 146

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES [2013] FamCAFC 146

FAMILY LAW – APPEAL – Interpretation of a consent order made in 2000 – Trial Judge found the meaning of the order was clear – The transcript of the original proceedings prepared at the direction of the Full Court confirmed the trial Judge’s interpretation – No merit in the appeal.

FAMILY LAW – COSTS OF APPEAL – Appellant wholly unsuccessful – Appellant continued to pursue the appeal following receipt of the transcript – Appellant to pay respondent’s cost of the appeal.
Attorney-General v Sillem (1863) 159 ER 178
Brisbane City Council v Attorney-General for Queensland (1908) 5 CLR 695
Langford and Coleman (1993) FLC 92-346
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Repatriation Commission v Nation (1995) 57 FCR 25
Secretary, Department of Social Security v Rurak (1990) 99 ALR 17
Yunghanns v Yunghanns (1999) FLC 92-836
APPELLANT: Mr Hughes
RESPONDENT: Mrs Hughes
FILE NUMBER: SOA 36 of 2012
APPEAL NUMBER: MLC 3708 of 2010
DATE DELIVERED: 25 September 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Melbourne
JUDGMENT OF: Finn, Thackray and Strickland JJ
HEARING DATE: 7 March 2013 and written submissions
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 4 April 2012
LOWER COURT MNC: [2012] FamCA 198

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Mort
COUNSEL FOR THE RESPONDENT: Mr Indovino
SOLICITOR FOR THE RESPONDENT: Barbour Arnold & Cousins

Orders

  1. The appeal be dismissed.

  2. The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hughes & Hughes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: MLC 3708 of 2010
File Number: SOA 36 of 2012

Mr Hughes

Appellant

And

Mrs Hughes

Respondent

REASONS FOR JUDGMENT

Introduction

  1. Mr Hughes (“the husband’) has appealed against the order of Macmillan J made on 4 April 2012 requiring him to pay to Mrs Hughes (“the wife”) all his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund.

  2. The order was made by way of enforcement of what her Honour decided was an obligation imposed by paragraph 3 of consent orders made by Carter J on 13 December 2000 (“Order 3”).    

  3. The outcome of this appeal is dependent upon the meaning of Order 3, which is set out below (the emphasis applied to the word “all” appeared in the original):

    3.That upon the husband becoming eligible to receive any further benefit or payment pursuant to any membership of any superannuation fund(s) to which either he or his employer or both have contributed including but not limited to the [M  SUPERANNUATION FUND] and the [D  SUPERANNUATION FUND] or such other ADF fund into which the [D Superannuation Fund] may be rolled over by [M Investment Management…

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AGLC
HUGHES & HUGHES [2013] FamCAFC 146
Case
[2013] FamCAFC 146
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Hughes & Hughes involved an appeal against a consent order made in 2000. The appeal focused on the interpretation of this order, with the appellant arguing that the order's meaning was ambiguous. The appellant sought to challenge the trial judge's interpretation, which found that the order was clear and unambiguous. The Full Court of the Family Court reviewed the case to determine the validity of the appellant's contentions.

The primary legal issue the court had to address was whether the trial judge correctly interpreted the consent order. The court examined the transcript of the original proceedings, which was prepared at the direction of the Full Court, to ascertain the context and intent behind the order. The Full Court found that the transcript confirmed the trial judge's interpretation, thereby affirming that the order's meaning was indeed clear and unambiguous. The court also considered the appellant's conduct in continuing to pursue the appeal after receiving the transcript, which provided no basis for altering the trial judge's interpretation.

Given the clear evidence from the transcript supporting the trial judge's interpretation and the lack of merit in the appellant's appeal, the Full Court dismissed the appeal. Furthermore, the court held that the appellant, having been wholly unsuccessful in the appeal and continuing to pursue it despite clear evidence to the contrary, should bear the costs of the appeal. The Full Court ordered that the appellant pay the respondent's costs of and incidental to the appeal, as agreed, or in default of agreement, as assessed.

The final orders of the court were that the appeal be dismissed and that the appellant pay the respondent's costs of and incidental to the appeal as agreed, or in default of agreement, as assessed. This outcome underscores the importance of adhering to the clear language of consent orders and the consequences of pursuing unsuccessful appeals.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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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