Ledarn and Ledarn - [2010] FamCA 1107

FAMILY COURT OF AUSTRALIA

LEDARN & LEDARN

[2010] FamCA 1107

FAMILY LAW – INJUNCTIONS – Exclusive occupation of business premises

Family Law Act 1975 (Cth)

Davis and Davis (1983) FLC 91-320
Jackson v Sterling Industries Ltd (1987) HCA 23; (1997) 162 CLR 612
Mareva Compania Naviera SA v International Bulkcarriers SA (1975) 2 Lloyds Reports 509
Mullen and De Bryn (2006) FLC 93-293
S & S (2002) FamCA 59
Waugh and Waugh (2000) FLC 93-052

APPLICANT:

MR LEDARN

RESPONDENT:

MS LEDARN

FILE NUMBER:

MLC

6423

2010

DATE DELIVERED:

2 December 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

23 NOVEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR NORTH SC WITH MR HUTCHINS

SOLICITOR FOR THE APPLICANT:

AUGHTERSONS

COUNSEL FOR THE RESPONDENT:

MR GEDDES QC

SOLICITOR FOR THE RESPONDENT:

SAXBYS LAWYERS

Orders

That the hearing on 23 February 2011 be vacated.
That the initiating application of the wife filed 21 September 2010 and the response thereto filed by the husband on 9 November 2010 be referred to the Co-ordinating Registrar for the purposes of appointing a conciliation conference to conducted as soon as practicable.
That until further order and unless otherwise agreed, the wife be and is hereby, restrained from being on the premises at S2 other than between the hours of 8.30 am to 10.30 am on any day in any week.
That until further order and unless otherwise agreed, the husband be and is hereby, restrained from being on the premises at S2 between the hours of 8.30 am to 10.30 am on any day in any week.
That the application in a case of the husband filed 9 November 2010, the response by the husband filed 9 November 2010 to the wife’s application in a case, the application in a case of the wife filed 21 September 2010 and the response to the husband’s application filed by the wife on 15 November 2010 be dismissed.
That each party have liberty to apply on short notice for further orders, such applications to be arranged in writing with my Associate.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Ledarn & Ledarn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6423 of 2010

MR LEDARN

Applicant

And

MS LEDARN

Respondent

REASONS FOR JUDGMENT

Competing applications were lodged by Ms Ledarn (“the wife”) and Mr Ledarn (“the husband”) seeking injunctive orders after a long marriage in which they have apparently ended up with a very successful business and millions of dollars of property. Even an interlocutory dispute such as this was bitterly fought. For reasons which follow, I do not propose to make orders that would substantially interfere with the legal rights of either party.
The parties began living together in…

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 Ledarn and Ledarn

Details

AGLC: Ledarn and Ledarn [2010] FamCA 1107
Case: [2010] FamCA 1107
Decision Date: 2 December 2010

CaseChat Overview and Summary

In the matter of *Ledarn and Ledarn*, Justice Cronin of the Family Court of Australia considered an application by the wife filed on 21 September 2010, and a response thereto filed by the husband on 9 November 2010. The dispute concerned matters arising between the parties.

The court was required to determine the appropriate course of action regarding the initiating application and the response, including whether to refer the matter for conciliation and what interim orders, if any, should be made concerning the parties' presence at a particular property. The court also had to consider the dismissal of various applications and responses filed by both parties.

Justice Cronin ordered that the hearing scheduled for 23 February 2011 be vacated. The initiating application and the response were referred to the Co-ordinating Registrar for the appointment of a conciliation conference. Interim orders were made restraining both the wife and the husband from being on the premises at S2 during specific hours each day, unless otherwise agreed. Furthermore, the court dismissed the applications in a case filed by the husband and the wife, along with their respective responses. Each party was granted liberty to apply on short notice for further orders.

Orders

Orders of the court

That the hearing on 23 February 2011 be vacated.

That the initiating application of the wife filed 21 September 2010 and the response thereto filed by the husband on 9 November 2010 be referred to the Co-ordinating Registrar for the purposes of appointing a conciliation conference to conducted as soon as practicable.

That until further order and unless otherwise agreed, the wife be and is hereby, restrained from being on the premises at S2 other than between the hours of 8.30 am to 10.30 am on any day in any week.

That until further order and unless otherwise agreed, the husband be and is hereby, restrained from being on the premises at S2 between the hours of 8.30 am to 10.30 am on any day in any week.

That the application in a case of the husband filed 9 November 2010, the response by the husband filed 9 November 2010 to the wife’s application in a case, the application in a case of the wife filed 21 September 2010 and the response to the husband’s application filed by the wife on 15 November 2010 be dismissed.

That each party have liberty to apply on short notice for further orders, such applications to be arranged in writing with my Associate.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.