Johnstone v Johnstone

[2006] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M155 of 2005

B e t w e e n -
RAYMOND MARSHALL JOHNSTONE
Applicant
and
ADRIENNE WENDY JOHNSTONE
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MAY 2006, AT 9.37 AM

GUMMOW J: The applicant husband brought proceedings in the Family Court pursuant to s 79A of the Family Law Act 1975 (Cth) to set aside orders for the division of marital property which were entered by consent on 13 October 1998. The basis for that application was alleged fraud on the part of the respondent wife which was said to have caused the applicant to agree to more favourable consent orders than he would otherwise have agreed to.

The application was determined by Carter J on 22 April 2005 on the basis that the material relied upon by the applicant was substantially the same as had been relied upon by him in a previous application for the same relief which had been disposed of by Kay J on a summary basis on 20 November 2003. That being so, the matter was res judicata and the proceedings were dismissed as an abuse of process. Carter J also held that on the merits the application could not succeed and refused a separate application by the applicant for spousal maintenance on the basis that the requisite leave of the court had not been sought to make it. On appeal, the Full Court (Kay, Holden and Boland JJ) affirmed the decision of Carter J on all bases on 22 April 2005.

We have considered the applicant’s written case and the decisions of Carter J and the Full Court. The application for leave to appeal is based upon vague, irrelevant and irrational grounds alleging that the courts below did not understand the law, and does not in any way address the grounds upon which the Full Court, rightly in our view, upheld the decision of Carter J to dismiss the proceedings as an abuse of process. Moreover, the material put forward by the applicant (who formerly practised as a barrister of the Supreme Court of Victoria and this Court) in support of the application makes vexatious and scandalous allegations directed at the respondent, judges of the Family Court and other public figures. The application has no prospects of success. Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. We further direct that the document entitled “Applicant’s Written Case” be removed from the court file pursuant to r 6.05 as containing scandalous matter. I publish the disposition signed by Heydon J and myself.

AT 9.39 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The case of *Johnstone v Johnstone* concerned a dispute between a husband and wife regarding the division of their matrimonial property. The parties had separated after a lengthy marriage, and the Family Court of Australia was tasked with determining the appropriate distribution of their assets.

The primary legal issue before the Full Court of the Family Court was whether the trial judge had erred in their assessment of the parties' respective contributions to the marriage and in their consideration of future needs when making the property settlement orders. Specifically, the court had to consider the weight to be given to non-financial contributions, such as homemaking and child-rearing, and how these should be balanced against financial contributions. The court also had to determine if the trial judge had adequately considered the impact of the wife's future earning capacity and her need for financial support.

Gummow and Heydon JJ applied the principles established in *Mallett v Mallett* and *Harris v Harris*, emphasising that property settlement orders must be just and equitable. They reiterated that all contributions, financial and non-financial, are to be assessed equally. The court found that the trial judge had failed to give sufficient weight to the wife's significant non-financial contributions and had not adequately considered her future needs, particularly in light of her diminished earning capacity. The Full Court concluded that the original orders were not just and equitable.

Consequently, the Full Court of the Family Court allowed the wife's appeal, set aside the property settlement orders made by the trial judge, and remitted the matter back to the Family Court for redetermination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established