Marsden & Winch - [2008] FamCA 1029

FAMILY COURT OF AUSTRALIA

MARSDEN & WINCH

[2008] FamCA 1029

FAMILY LAW – PROPERTY – Application to enforce previous orders – value of property divided at first instance had declined since judgment – subsequent change in value of property does not allow the decision to be revisited – application dismissed

FAMILY LAW – CHILDREN – Application to recommence proceedings – matter has previously been decided at first instance – decision was upheld by the Full Court and special leave to appeal to the High Court was refused – consideration of the rule in Rice v Asplund – passing of time not a change in circumstances – recommencement of proceedings not in child’s best interests – application dismissed

FAMILY LAW – VEXATIOUS LITIGANT – Cross-application to declare father vexatious litigant – current proceedings not found to be vexatious or frivolous – application dismissed

FAMILY LAW – COSTS – Applicant wholly unsuccessful regarding property and children – respondent wholly unsuccessful in cross-application – applicant to make some contribution to respondent’s costs

Family Law Act 1975 (Cth)

La Rocca (1991) FLC 92-222
Cawthorn v Cawthorn (1998) FLC 92-805
SPS & PLS [2008] FLC 93-363
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Marsden

RESPONDENT:

Ms Winch

FILE NUMBER:

CAF

2004

DATE DELIVERED:

28 August 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

27 August 2008

REPRESENTATION

FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Godtschalk

SOLICITOR FOR THE RESPONDENT:

Ms Lyndon

Orders

The father’s application about certain property orders filed on 28 July 2008 be dismissed
The father’s application about child matters also filed on 28 July 2008 be dismissed.
The mothers application that the father’s proceedings be declared vexatious and the father enjoined from further proceedings filed on 14 August 2008 be dismissed.
The father pay the sum of $2,750 to the mother as part of the mother’s costs.
In relation to this matter, the parties, having determined to resolve matters pertaining to costs in relation to the concluded appeal in the sum of $19,000 and noting that the father has agreed to pay such sum from a separate fund other than the NAB account no. …3, therefore, it is ordered by agreement that:
(i)Provided the father pays the total sum of $21,750 ($19,000 plus $2,750) to the trust account of the wife's solicitors on or before 5 pm on 11 September 2008, the National Australia Bank is directed and authorised to pay the amount presently standing to the credit of the account referred to above to the husband together with any accumulated interest upon its maturity in due course.
(ii)If the husband should fail to make the payment referred to on or before 5 pm on 11 September 2008 then, by consent, the total amount due from the husband to the wife will be withdrawn from the NAB account and paid to the wife and the balance will be paid to the husband.

There be no order for costs in relation…

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 Marsden & Winch

Details

AGLC: Marsden & Winch [2008] FamCA 1029
Case: [2008] FamCA 1029
Decision Date: 28 August 2008

CaseChat Overview and Summary

The parties in this matter were the father and the mother, with the father seeking to enforce previous property orders and recommence proceedings concerning children. The mother cross-applied to have the father declared a vexatious litigant. The proceedings were heard by Faulks DCJ.

The court was required to determine whether the father's application to enforce previous property orders should be granted, given a subsequent decline in the property's value. It also had to consider whether the father's application to recommence children's proceedings was permissible, particularly in light of previous decisions upheld on appeal, and whether the mother's cross-application to declare the father a vexatious litigant should succeed. Finally, the court needed to make orders regarding costs.

His Honour dismissed the father's applications concerning both property and children. Regarding the property, the court held that a subsequent change in the value of property did not permit a previously made decision to be revisited. In relation to the children's proceedings, the court applied the principles from *Rice v Asplund*, finding that the passing of time did not constitute a change in circumstances sufficient to justify recommencing proceedings, and that doing so would not be in the child's best interests. The mother's cross-application was also dismissed, as the current proceedings were not found to be vexatious or frivolous.

The father was ordered to pay $2,750 towards the mother's costs. Further, by agreement between the parties, the father was to pay a total of $21,750 to the mother's solicitors by a specified date. If this payment was made, the National Australia Bank was directed to release funds from a particular account to the father upon maturity. If the father failed to make the payment, the total amount due would be withdrawn from the NAB account and paid to the mother, with any balance to the father. There was no order for costs in relation to the mother's application to declare the father a vexatious litigant.

Orders

Orders of the court

The father’s application about certain property orders filed on 28 July 2008 be dismissed

The father’s application about child matters also filed on 28 July 2008 be dismissed.

The mothers application that the father’s proceedings be declared vexatious and the father enjoined from further proceedings filed on 14 August 2008 be dismissed.

The father pay the sum of $2,750 to the mother as part of the mother’s costs.

In relation to this matter, the parties, having determined to resolve matters pertaining to costs in relation to the concluded appeal in the sum of $19,000 and noting that the father has agreed to pay such sum from a separate fund other than the NAB account no. …3, therefore, it is ordered by agreement that:

(i) Provided the father pays the total sum of $21,750 ($19,000 plus $2,750) to the trust account of the wife's solicitors on or before 5 pm on 11 September 2008, the National Australia Bank is directed and authorised to pay the amount presently standing to the credit of the account referred to above to the husband together with any accumulated interest upon its maturity in due course.

(ii) If the husband should fail to make the payment referred to on or before 5 pm on 11 September 2008 then, by consent, the total amount due from the husband to the wife will be withdrawn from the NAB account and paid to the wife and the balance will be paid to the husband.

There be no order for costs in relation to the mother’s application referred to above.

The matter be removed from the pending cases inventory.

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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