Kumber and Worswicke - [2014] FamCA 6

FAMILY COURT OF AUSTRALIA

KUMBER & WORSWICKE

[2014] FamCA 6

FAMILY LAW – SUMMARY DISMISSAL – SECTION 90SN(1) – where the applicant seeks summary dismissal of the initiating application filed by the respondent – where the enforcement application filed by the applicant and the application pursuant to s 90SN of the Act filed by the respondent are dependent upon the outcome of the summary dismissal application – where the respondent seeks to vary paragraph 3.8 of the consent order made on 25 August 2011 and relies on s 90SN(1)(a), (b) and (c) of the Act to do so – where none of the grounds relied on by the respondent pursuant to s 90SN(1) can be made out – initiating application dismissed.

Family Law Act 1975 (Cth) – s 90SM(3), s 90SN(1)(a), (b) & (c), s 79A(1)(a) & (b)

Family Law Rules 2004 (Cth) – r 10.12(d), r 10.14(a), (b) & (c)

Bigg & Suzi (1998) FLC 92-799
Barker & Barker [2007] FamCA 13
Cawthorn & Cawthorn (1998) FLC 92-805
Clifton & Stuart (1991) FLC 92-194
Kokl & Kokl (1981) FLC 91-078
La Rocca & La Rocca (1991) FLC 92-222
Lindon v Commonwealth of Australia (No. 2) (1996) 70 ALJR 541
Molier & Van Wyk (1980) FLC 90-911
Monticone & Monticone (1990) FLC 92-114
Public Trustee (as Executor of the Estate of Gilbert) & Gilbert (1991) FLC 92-211
Spellson & Spellson & Ors (1989) FLC 92-046
Suiker & Suiker (1993) FLC 92-436
Westpac Banking Corporation and Aldred (1986) FLC 91-753

APPLICANT:

Ms Kumber

RESPONDENT:

Mr Worswicke

FILE NUMBER:

ADC

316

2011

DATE DELIVERED:

13 January 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATES:

12 & 13 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cocks

SOLICITOR FOR THE APPLICANT:

C M Tucker & Associates

COUNSEL FOR THE RESPONDENT:

Mr Mitchell

SOLICITOR FOR THE RESPONDENT:

Sydney G Maidment

Orders

The initiating application filed by the respondent on 31 July 2012 be dismissed.
The application in a case filed by the applicant on 5 December 2011 be adjourned for mention to 9:15am on Monday 10 February 2014.
The application in a case filed by the applicant on 30 January 2013 be adjourned for mention to 9:15am on Monday 10 February 2014.
The application in a case filed by the applicant on 12 February 2013 be dismissed and removed from the pending cases list.
The application in a case filed by the respondent on 14 December 2013 be dismissed and removed from the pending cases list.
The question of costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kumber & Worswicke 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 ADELAIDE

FILE NUMBER: ADC 316 of 2011

Ms Kumber

Applicant

And

Mr Worswicke

Respondent

REASONS FOR JUDGMENT

Introduction

The applications listed before the court on 12 March 2013 were as follows (in chronological order):

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 Kumber and Worswicke

Details

AGLC: Kumber and Worswicke [2014] FamCA 6
Case: [2014] FamCA 6
Decision Date: 13 January 2014

CaseChat Overview and Summary

In *Kumber and Worswicke*, Strickland J of the Supreme Court of Western Australia considered a series of applications filed by both the applicant and the respondent. The dispute involved multiple applications, some of which were initiated by the respondent and others by the applicant, concerning matters that had progressed through the court system.

The court was required to determine the fate of several applications, specifically whether they should be dismissed or adjourned. The applications in question were filed on 31 July 2012, 5 December 2011, 30 January 2013, 12 February 2013, and 14 December 2013. The central legal issue was the appropriate disposition of these various interlocutory applications.

Strickland J's reasoning led to the dismissal of the respondent's application filed on 31 July 2012 and the applicant's application filed on 12 February 2013, with these matters to be removed from the pending cases list. Similarly, the respondent's application filed on 14 December 2013 was also dismissed and removed. However, the court ordered that the applicant's applications filed on 5 December 2011 and 30 January 2013 be adjourned for mention to a later date. The question of costs was reserved.

Orders

Orders of the court

The initiating application filed by the respondent on 31 July 2012 be dismissed.

The application in a case filed by the applicant on 5 December 2011 be adjourned for mention to 9:15am on Monday 10 February 2014.

The application in a case filed by the applicant on 30 January 2013 be adjourned for mention to 9:15am on Monday 10 February 2014.

The application in a case filed by the applicant on 12 February 2013 be dismissed and removed from the pending cases list.

The application in a case filed by the respondent on 14 December 2013 be dismissed and removed from the pending cases list.

The question of costs be reserved.

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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