Marshall and Kent - [2013] FamCA 967

FAMILY COURT OF AUSTRALIA

MARSHALL & KENT

[2013] FamCA 967

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where an Initiating Application was filed in this court – Where both parties are Country Fn Citizens – Where both parties are currently residing in Country H – Where subsequently the husband has initiated proceedings in Country H – Where subsequently the wife has initiated proceedings in Country F – Where the matters relating to children have been dealt with by the Court in Country H – Where the parties have property in a number of countries – forum non conveniens – Where this jurisdiction is no longer an appropriate forum.

Family Law Act 1975 (Cth) s 39(1), s 39(4), s 39(4A), s 69E(1)(c), ss 69E(2), s 69H(1)
Foreign Judgments Act 1991 (Cth)

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571
Chen & Tan [2012] FamCA 225
Clayton & Banter [2013] FamCA 790

APPLICANT:

Mr Marshall

RESPONDENT:

Ms Kent

FILE NUMBER:

BRC

9692

2010

DATE DELIVERED:

11 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

13 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Cooper
Cooper Family Law

COUNSEL FOR THE RESPONDENT:

Mr McDougall

SOLICITOR FOR THE RESPONDENT:

Little Lawyers

Orders

That these proceedings, BRC9692 of 2010, be permanently stayed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9692 of 2010

Mr Marshall

Applicant

And

Ms Kent

Respondent

REASONS FOR JUDGMENT

By a document headed “Amended Response to Initiating Application (Family Law)” filed in this Court on 1 May 2013, Mr Marshall (“the Husband”) seeks an order in the following terms:
That the proceeding (BRC 9692/2010) be stayed on the basis that this Honourable Court is a clearly inappropriate forum.
These proceedings, numbered BRC 9692/2010, were commenced in this Court by Ms Kent (“the Wife”) by the filing of an Initiating Application (Family Law) on 29 October 2010. In that application, the Wife sought parenting orders on an interim and final basis in respect of the two children of the Husband and the Wife, in addition to orders on an interim and final basis in respect of a piece of real property situated in Suburb C in Brisbane that was registered in the Husband’s sole name.
According to the Husband’s evidence relied on in his application currently being determined, this Court made interim orders on 28 March 2011 that the Suburb C property be sold and that from the net proceeds of sale the Wife receive $75,000. The Husband says that the property was sold on 4 November 2011 for $725,000 and that it was further ordered that Gadens Lawyers be paid $7,893.60…

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 Marshall and Kent

Details

AGLC: Marshall and Kent [2013] FamCA 967
Case: [2013] FamCA 967
Decision Date: 11 December 2013

CaseChat Overview and Summary

In the matter of *Marshall and Kent*, heard before Forrest J, the proceedings concerned a dispute between the parties that ultimately led to the court ordering a permanent stay of the proceedings.

The central legal issue before the court was whether the proceedings, identified as BRC9692 of 2010, should be permanently stayed. This required the court to consider the circumstances under which such a drastic measure would be appropriate.

Forrest J determined that a permanent stay was warranted. While the specific reasons for this determination are not detailed in the provided text, the court's decision to permanently stay the proceedings indicates that it found grounds sufficient to prevent the matter from proceeding further.

Consequently, the court ordered that the proceedings, BRC9692 of 2010, be permanently stayed.

Orders

Orders of the court

That these proceedings, BRC9692 of 2010, be permanently stayed.

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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