Loomis & Anor and Thurston - [2016] FamCA 975

FAMILY COURT OF AUSTRALIA

LOOMIS AND ANOR & THURSTON

[2016] FamCA 975

FAMILY LAW – PROPERTY – Whether an Order made 5 May 2016 restraining the husband from refinancing a loan such that is has the effect of increasing the debt on UK property should be discharged – Whether the Order should be stayed pending the hearing of an appeal – Where the Order was the subject of an appeal filed by the husband – Where the appeal was deemed abandoned due to the husband’s failure to file the appropriate material – Where there was no evidence as to the merits of the appeal nor as to the merits of reinstating the appeal – Application dismissed.

FAMILY LAW – INJUNCTION – Whether the wife should be restrained from contacting tenants of the UK property – Where it was asserted the wife was in contempt by contacting tenants of the property – Where the Orders made 5 May 2016 did not restrain the wife from contacting the tenants – Where there is insufficient evidence to establish the wife should be restrained from contacting the tenants – Application dismissed.

FAMILY LAW – INJUNCTION – Whether the husband should be restrained from filing material with this Court in relation to the wife’s mental health – Where such assertions in the context of these property proceedings are emotionally abusive toward the wife – Application granted.

Family Law Act 1975 (Cth) ss 4AB and 90SS(5)
Domestic and Family Violence Protection Act 2012 (QLD) s 8

Gollings & Scott [2007] FamCA 397
Marker & Marker [1998] FamCA 42
Martin & Newton [2011] FamCAFC 233

FIRST APPLICANT:

Mr Loomis

SECOND APPLICANT:	L Ltd
RESPONDENT:	Ms Thurston

FILE NUMBER:

BRC

1010

2012

DATE DELIVERED:

17 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

14 November 2016

REPRESENTATION

THE FIRST AND SECOND APPLICANTS:

Mr Loomis in Person

THE RESPONDENT:

Ms Thurston in Person

Orders

The Application in a Case filed 8 September 2016 by Mr Loomis and L Ltd is dismissed.
That until further order, Mr Loomis is restrained from asserting that Ms Thurston is mentally ill or unwell in any further affidavits he might file or seek leave to file before the conclusion by final judgment of these proceedings and from exhibiting to any such affidavits, in an attempt to support assertions he makes about her mental health, any articles written about mental health.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & Thurston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law…

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 Loomis & Anor and Thurston

Details

AGLC: Loomis & Anor and Thurston [2016] FamCA 975
Case: [2016] FamCA 975
Decision Date: 17 November 2016

CaseChat Overview and Summary

In the matter of *Loomis & Anor and Thurston*, Forrest J of the Federal Circuit Court of Australia considered applications made by Mr Loomis and L Ltd concerning orders previously made on 5 May 2016. The applications sought to discharge an order restraining the husband from refinancing a loan on a UK property in a way that would increase the debt secured against it, and to stay this order pending the hearing of an appeal. Additionally, applications were made to restrain the wife from contacting tenants of the UK property and to restrain the husband from filing material relating to the wife's mental health.

The court was required to determine whether the order restraining the husband from increasing the debt on the UK property should be discharged or stayed. This was in circumstances where the husband had filed an appeal against the original order, but that appeal had been deemed abandoned due to his failure to file the necessary materials. The court also had to consider whether the wife should be restrained from contacting the tenants of the UK property, given assertions that she was in contempt of court by doing so, and whether the husband should be restrained from filing material concerning the wife's mental health in the proceedings.

Regarding the application to discharge or stay the order concerning the UK property debt, Forrest J found that there was no evidence presented as to the merits of the husband's appeal or the merits of reinstating it. Consequently, this application was dismissed. The application to restrain the wife from contacting tenants was also dismissed, as the original orders did not contain such a restraint and there was insufficient evidence to establish a need for one. However, the application to restrain the husband from filing material about the wife's mental health was granted, with the court finding such assertions to be emotionally abusive in the context of the property proceedings.

The court ordered that the application filed by Mr Loomis and L Ltd on 8 September 2016 be dismissed. Furthermore, Mr Loomis was restrained, until further order, from asserting that Ms Thurston is mentally ill or unwell in any affidavits he might file or seek leave to file, and from exhibiting articles about mental health to support such assertions, pending the conclusion of the proceedings by final judgment.

Orders

Orders of the court

The Application in a Case filed 8 September 2016 by Mr Loomis and L Ltd is dismissed.

That until further order, Mr Loomis is restrained from asserting that Ms Thurston is mentally ill or unwell in any further affidavits he might file or seek leave to file before the conclusion by final judgment of these proceedings and from exhibiting to any such affidavits, in an attempt to support assertions he makes about her mental health, any articles written about mental health.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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