FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal against interlocutory orders – Consideration of Niemann v Electronics Industries Ltd [1978] VR 431 and Jess and Ors & Jess and Ors (2014) FLC 93-620 – Where Full Court of the Family Court of Australia adopts a new test to be applied in applications for leave to appeal under s 94AA of the Family Law Act 1975 (Cth) – Whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused – Leave to appeal granted.
FAMILY LAW – APPEAL – PROPERTY – INTERIM – Where the respondent is involved in ongoing litigation which will affect the assets of the parties – Where the respondent has significant ongoing legal expenses – Where the respondent was granted an interim property order for a disbursement of $2.9 million – Where the respondent was restrained by Family Court of Australia orders from dealing with certain property – Where the respondent’s share of proceeds of sale from an asset were frozen to meet the respondent’s obligations in another case – Where the appellant argued that the $2.9 million disbursement would therefore come from her property – Whether the primary judge failed to determine the source of power supporting the orders made – Whether the primary judge erred by making orders which have a real prospect of depleting the property of the parties – Whether the primary judge failed to give sufficient weight to previous breaches of orders – Appeal allowed - Where the funds advanced fully disbursed – Where the orders of the primary judge are discharged.
FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant made an oral application for a stay of the orders for payment of the funds to the respondent and for interim property orders preventing the respondent from dealing with property – Where the funds were expended following hearing of the appeal – Where there is no utility in the proposed appeal – Application dismissed.
FAMILY LAW – COSTS – Where the appellant sought an order for costs if the appeal was allowed –Where the respondent submitted he was not in a position to pay costs – Where impecuniosity is not, of itself, a bar to a costs order – Where there is evidence that the financial circumstances of the parties are in the category of high asset worth – Where the respondent has been wholly unsuccessful in the appeal – Where the respondent has breached Family Court of Australia orders – Where the respondent is to pay the appellant’s costs of the appeals.
[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.
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AGLC
Medlow & Medlow [2016] FamCAFC 34
Case
[2016] FamCAFC 34
Decision Date
CaseChat Overview and Summary
The matter of Medlow & Medlow involved an appeal against interlocutory orders made by Loughnan J in a family law dispute. The husband sought leave to appeal against certain orders, including those concerning the disbursement of $2.9 million and restrictions on dealing with certain property. The wife, in turn, applied for a stay of the orders and sought costs if the appeal were allowed.
The court was required to determine whether the husband's application for leave to appeal should be granted, and if so, whether the primary judge had erred in making orders that could deplete the parties' property. The court also had to decide whether the wife's application for a stay of the orders should be granted, and whether the husband should be ordered to pay the wife's costs if the appeal were allowed.
The court held that the husband's application for leave to appeal should be granted as there was sufficient doubt about the primary judge's determination of the source of power for the orders. The court found that the orders had a real prospect of depleting the parties' property and that the primary judge had failed to give sufficient weight to previous breaches of orders. The court allowed the appeal, discharged the impugned orders, and dismissed the wife's application for a stay. The court further held that the husband should pay the wife's costs of the appeals.
The court made orders granting leave to appeal against certain orders, allowing the appeal, discharging the impugned orders, dismissing the wife's application for a stay, and ordering the husband to pay the wife's costs of the appeals.
Orders
Orders of the court
1.
Leave to appeal against Orders (1)6, (3), (4) and (5) of the orders made by Loughnan J on 18 July 2014 be granted in EA 106 of 2014 filed on 6 November 2014.
2.
The appeal filed by the wife on 6 November 2014 being proceedings EA 106 of 2014 be allowed.
3.
The Orders (1)6, (3), (4) and (5) made on 18 July 2014 be discharged.
4.
The oral application of the wife for a stay be dismissed.
5.
The application for leave to appeal in EA 140 of 2014 filed on 6 November 2014 is dismissed.
6.
The husband pay the wife’s costs of and incidental to the appeals being appeal numbers EA 106 of 2014 and EA 140 of 2014 as agreed or in default of agreement as assessed, including the costs of the Application in an Appeal dated 2 October 2015.