LOCKE & NORTON - [2013] FCCA 1154

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOCKE & NORTON

[2013] FCCA 1154

Catchwords:
FAMILY LAW – Injunction – where Applicant asserts that she and the Respondent were in a de facto relationship – where Respondent denies any de facto relationship – jurisdiction – whether Court has jurisdiction.

Legislation:
Family Law Act 1975 (Cth), ss.4AA, 39B, 90SB, 90SM, 114

Federal Circuit Court of Australia Act 1999 (Cth), s.39
Property (Relationships) Act 1984 (NSW), s.4

Federal Circuit Rules 2001 rr.8.02, 24.02, 24.04

Blue Seas Investments Pty Ltd v Mitchell & Ors [1999] FamCA 745; (1999) 25 Fam LR 65; FLC 92-856
Jonah & White [2011] FamCA 221
Kazama & Britton [2013] FamCA 4
Martin & Martin [2013] FamCA 222
R v Ross-Jones; Ex Parte Green (1984) 156 CLR 185; 9 Fam LR 888
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Ting & Fingal [2013] FamCA 29
Vaughan v Hoskovich [2010] NSWSC 706
Wall & Mitchell [2010] FamCA 1194

Applicant:

MS LOCKE

Respondent:

MR NORTON

File Number:

SYC 2828 of 2013

Judgment of:

Judge Scarlett

Hearing date:

5 August 2013

Date of Last Submission:

5 August 2013

Delivered at:

Sydney

Delivered on:

6 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr White SC

Solicitors for the Applicant:

Michael Conley Lawyers

Counsel for the Respondent:

Ms Bridger

Solicitors for the Respondent:

Barraket Stanton Lawyers

ORDERS

UNTIL FURTHER ORDER

The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from interfering with the Applicant’s continued exclusive occupancy of the property situated at Property D, in the State of New South Wales being the land in folio identifier (omitted) (the property).
The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from doing any act or thing or causing any act or thing to be done which has the purpose or effect of transferring, assigning, mortgaging, encumbering, charging or otherwise dealing with his interest in the property including whether at law or in equity.
The Respondent pending final determination of these proceedings or further order is to pay the following outgoings in relation to the property as and when they fall due:
3.1mortgage payments;
3.2council rates;
3.3insurances;
3.4body corporate levies;
3.5water rates; and
3.6electricity and gas charges.
The Respondent must file and serve a Financial Statement as required by Rule 24.02 within fourteen (14) days of the date of these Orders.
The Respondent must provide to the Applicant’s solicitors a copy of all documents referred to in Rule 24.04 within fourteen (14) days of the date of these Orders.
In accordance with Rule 8.02 and section 39 of the Federal Circuit Court of Australia Act 1999 these proceedings are transferred to the Family Court of Australia at Sydney.
Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within fourteen (14) days…

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 LOCKE & NORTON

Details

AGLC: LOCKE & NORTON [2013] FCCA 1154
Case: [2013] FCCA 1154
Decision Date: 6 August 2013

CaseChat Overview and Summary

In the matter of LOCKE & NORTON, Judge Scarlett of the Federal Circuit Court of Australia made orders concerning a property dispute between the Applicant and the Respondent. The Applicant sought to maintain exclusive occupancy of the property and prevent the Respondent from dealing with his interest in it pending the final determination of the proceedings.

The court was required to determine whether to grant interlocutory injunctions restraining the Respondent from interfering with the Applicant's occupancy and from dealing with his interest in the property. Additionally, the court considered the Respondent's obligations regarding the payment of property outgoings and the disclosure of financial information.

Judge Scarlett ordered that the Respondent be restrained from interfering with the Applicant's exclusive occupancy of the property and from transferring, mortgaging, or otherwise dealing with his interest in the property. The Respondent was also ordered to pay all mortgage payments, council rates, insurances, body corporate levies, and utility charges as they fall due. Furthermore, the Respondent was directed to file and serve a financial statement and copies of relevant documents within fourteen days. The proceedings were transferred to the Family Court of Australia at Sydney.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from interfering with the Applicant’s continued exclusive occupancy of the property situated at Property D, in the State of New South Wales being the land in folio identifier (omitted) (the property).

The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from doing any act or thing or causing any act or thing to be done which has the purpose or effect of transferring, assigning, mortgaging, encumbering, charging or otherwise dealing with his interest in the property including whether at law or in equity.

The Respondent pending final determination of these proceedings or further order is to pay the following outgoings in relation to the property as and when they fall due:

3.1 mortgage payments;

3.2 council rates;

3.3 insurances;

3.4 body corporate levies;

3.5 water rates; and

3.6 electricity and gas charges.

The Respondent must file and serve a Financial Statement as required by Rule 24.02 within fourteen (14) days of the date of these Orders.

The Respondent must provide to the Applicant’s solicitors a copy of all documents referred to in Rule 24.04 within fourteen (14) days of the date of these Orders.

In accordance with Rule 8.02 and section 39 of the Federal Circuit Court of Australia Act 1999 these proceedings are transferred to the Family Court of Australia at Sydney.

Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within fourteen (14) days of the date of these orders and written submissions in opposition to any such application and any affidavit in support are to be filed and served within a further period of fourteen (14) days.

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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