Keene and Scofield (No.2) - [2012] FMCAfam 1357

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEENE & SCOFIELD (NO.2)

[2012] FMCAfam 1357

FAMILY LAW – De facto property proceedings – case fixed for hearing shortly as to whether declaration as to de facto relationship may be made – non suit injunction pending hearing – possibility of party losing right in proceedings under Family Law Act – matters to be considered.

Family Law Act 1975, ss.4A(1); 34; 90SM

Keene & Scofield [2012] FMCAfam 28
McCarney & McCarney (1977) FLC 90-200

Esmore & Esmore (1979) FLC 90-711

Applicant:

MR KEENE

Respondent:

MS SCOFIELD

File Number:

ADC 983 of 2011

Judgment of:

Brown FM

Hearing date:

4 December 2012

Date of Last Submission:

4 December 2012

Delivered at:

Adelaide

Delivered on:

11 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr Berman SC

Solicitors for the Applicant:

Angela Ferdinandy

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Howe Martin & Associates

ORDERS

UNTIL FURTHER OR OTHER ORDER

The respondent Ms Scofield is restrained from commencing proceedings in the District Court of Australia or any other jurisdiction against Mr Keene in respect of the debt of $114,892.77 alleged to be owed by him to the aforesaid Ms Scofield.
This hearing before Federal Magistrate Brown on 31 January and 1 February 2013 at 10.00am is confirmed.
The wife file her trial affidavit material no later than 17 January 2013.
Costs of these proceedings reserved.

IT IS NOTED that publication of this judgment under the pseudonym Keene & Scofield (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 983 of 2011

MR KEENE

Applicant

And

MS SCOFIELD

Respondent

REASONS FOR JUDGMENT

Introduction

The substantive issue before the court, in this matter, is whether a de facto relationship existed between the applicant Mr Keene and the respondent Ms Scofield, at times which bring it within the jurisdiction of this court, pursuant to the provisions contained in Part VIIIAB of the Family Law Act 1975.
The application has been on foot since March of 2011, a period now approaching two years. At an early stage, by mutual agreement of the parties and with the acquiescence of the court, it was decided that it was convenient to excise the hearing of the case into two discrete segments.
Firstly, there would be a hearing as to whether there was a de facto relationship between the parties, as defined by section 4A(1) of the Act and therefore whether a declaration could be made to this effect pursuant to the provisions of section 90RD.
The second segment, if such a declaration was made, would relate to what should follow from the declaration, particularly whether there should be any alteration of the property interests of the parties concerned.
The proceedings have been rigorously contested. However, for reasons, to which I will turn shortly, the first segment of the envisioned hearing has not yet occurred, although an earlier date was allocated for the hearing and a further such date…

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 Keene and Scofield (No.2)

Details

AGLC: Keene and Scofield (No.2) [2012] FMCAfam 1357
Case: [2012] FMCAfam 1357
Decision Date

CaseChat Overview and Summary

The case of Keene and Scofield (No.2) involves the applicant, Mr Keene, and the respondent, Ms Scofield. The matter revolves around whether a de facto relationship existed between the two parties, which would bring it within the jurisdiction of the Federal Magistrates Court under the Family Law Act 1975. The primary legal issues that the court needed to decide were whether to grant the non-suit injunction sought by Mr Keene, and the procedural matters related to the upcoming trial.

The court concluded that it had jurisdiction to grant the non-suit injunction sought by Mr Keene, either under section 34 of the Family Law Act or the inherent jurisdiction of the court. The court considered the legal principles in relevant case law, such as McCarney and McCarney and Esmore and Esmore, and noted that the test to determine whether an anti-suit injunction should be issued was whether it was necessary to interfere with the progress of the litigation in the other court to preserve a right under the Family Law Act that might otherwise be lost.

The court weighed the arguments of both parties, taking into account Ms Scofield's concerns regarding the risk of Mr Keene becoming insolvent and Mr Keene's assertion that the delay in the proceedings had largely emanated from Ms Scofield. Ultimately, the court decided to grant the non-suit injunction sought by Mr Keene, as Ms Scofield had agreed to forebear with possible proceedings in the District Court until the preliminary issue of the existence or otherwise of the de facto relationship had been determined. The court also confirmed the two-day hearing of the matter on 31 January and 1 February 2013 and directed Ms Scofield to file her trial affidavit material no later than 17 January 2013.

In summary, the court granted the non-suit injunction sought by Mr Keene and set directions for the upcoming trial, in which the existence or otherwise of a de facto relationship between the parties will be determined.

Orders