Limousin & Limousin - [2007] FamCA 505

FAMILY COURT OF AUSTRALIA

LIMOUSIN & LIMOUSIN

[2007] FamCA 505

FAMILY LAW – APPEAL FROM FAMILY COURT OF AUSTRALIA – APPLICATION TO ADJOURN PROCEEDINGS – That the trial Judge erred in failing to adjourn proceedings to allow the appellant to obtain discovery and inspection of the respondent’s financial affairs not established. British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) (2002) 7 VR 524 and Stead v State Government Insurance Commission (1986) 161 CLR 14; [1986] HCA 54 considered.

FAMILY LAW – APPEAL - FAILURE TO ACCORD NATURAL JUSTICE – Assertion that the trial Judge denied the appellant natural justice by failing to grant adjournment or make further orders for discovery not established.

British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) (2002) 7 VR 524
Stead v State Government Insurance Commission (1986) 161 CLR 14; [1986] HCA 54

APPELLANT:

Mrs Limousin

RESPONDENT:

Mr Limousin

2^ND RESPONDENT:

Mr McV

FILE NUMBER:

MLF

10522

1996

APPEAL NUMBER:

2004

DATE DELIVERED:

1 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Kay, Coleman and Boland JJ

HEARING DATE:

31 January 2007 and 1 February 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 May 2003; 24 July 2003; 18 May 2004; 25 May 2004

LOWER COURT MNC:

[2003] FamCA 769; [2003] FamCA 1449; [2004] FamCA 493; [2004] FamCA 504

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Levine

SOLICITOR FOR THE APPELLANT:

Issac Brott and Co

COUNSEL FOR THE RESPONDENT:

Mr St John, SC with Mr Strum

SOLICITOR FOR THE RESPONDENT:

Michael Lipshutz Cohen Woolf and Weinberg

COUNSEL FOR THE 2^ND RESPONDENT:

No appearance

SOLICITOR FOR THE 2^ND RESPONDENT:

No appearance

Orders

That grounds 9 and 14 of the Notice of Appeal filed 22 June 2004 and/or any applications for leave to appeal in the terms of such grounds be and are hereby dismissed.
That any written submissions in respect of costs relative to grounds 3, 9 and 14 of the Notice of Appeal be filed and served within 21 days.
That written submissions in response to submissions in support of any application for costs be filed and served within 21 days thereafter.
That the wife notify the husband’s solicitors in writing within 28 days of today’s date as to whether or not she intends to proceed to have the balance of the grounds of appeal in the Notice of Appeal filed 22 June 2004 determined by the Full Court.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Limousin & Limousin

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA36 of 2004
File Number: MLF10522 of 1996

Mrs Limousin

Appellant

And

Mr Limousin

Respondent

And

Mr McV

Second Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 22 June 2004 Mrs…

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 Limousin & Limousin

Details

AGLC: Limousin & Limousin [2007] FamCA 505
Case: [2007] FamCA 505
Decision Date: 1 June 2007

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Family Court of Australia. The appellant, the husband, sought to appeal on grounds including that the trial judge erred in failing to grant an adjournment to allow for discovery of the respondent wife's financial affairs, and that the trial judge denied the appellant natural justice by failing to grant this adjournment or make further discovery orders.

The Full Court was required to determine whether the trial judge's refusal to grant an adjournment for further discovery constituted an error of law or a denial of natural justice. The court also considered whether the grounds of appeal relating to these issues were established.

The court considered the principles established in *British American Tobacco Australia Services Ltd v Cowell* and *Stead v State Government Insurance Commission*. The reasoning applied was that the appellant had not established that the trial judge erred in failing to grant the adjournment or that natural justice was denied. The court found that the appellant had not demonstrated that the refusal to adjourn was a material error or that it prevented a fair trial.

Consequently, the court dismissed grounds 9 and 14 of the Notice of Appeal, and any applications for leave to appeal in terms of those grounds. The parties were ordered to file written submissions regarding costs within specified timeframes, and the wife was to notify the husband's solicitors of her intention to proceed with the remaining grounds of appeal.

Orders

Orders of the court

That grounds 9 and 14 of the Notice of Appeal filed 22 June 2004 and/or any applications for leave to appeal in the terms of such grounds be and are hereby dismissed.

That any written submissions in respect of costs relative to grounds 3, 9 and 14 of the Notice of Appeal be filed and served within 21 days.

That written submissions in response to submissions in support of any application for costs be filed and served within 21 days thereafter.

That the wife notify the husband’s solicitors in writing within 28 days of today’s date as to whether or not she intends to proceed to have the balance of the grounds of appeal in the Notice of Appeal filed 22 June 2004 determined by the Full Court.

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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