Medlow & Medlow (No 2) - [2016] FamCAFC 63

FAMILY COURT OF AUSTRALIA

MEDLOW & MEDLOW (NO. 2)

[2016] FamCAFC 63

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – AMENDMENT OF ORDERS – Where the appellant seeks to have orders amended under the slip rule in r 17.02 of the Family Law Rules 2004 (Cth) – Where the appellant seeks an order for payment from a joint bank account – Whether the Full Court inadvertently omitted to make such an order – Whether the slip rule applies to the order sought – Whether the order sought is an order for interim property settlement – Where the Full Court did not intend to make an order for payment – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the Application in an Appeal was unsuccessful – Whether conduct of the respondent warrants no costs order being made – Where no order made as to costs.

Family Law Act 1975 (Cth) ss 79, 94(2), 117

Family Law Rules 2004 (Cth) rr 1.04, 1.08, 17.02

Gludau & Gludau (No. 2) (2013) FLC 93-562

APPELLANT:

Ms Medlow

RESPONDENT:

Mr Medlow

FILE NUMBER:

SYC

7742

2010

APPEAL NUMBER:

106

2014

DATE DELIVERED:

28 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ryan & Aldridge JJ

HEARING DATE:

5 April 2016

LOWER COURT JURISDICTION:

Full Court of the Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 March 2016

LOWER COURT MNC:

[2016] FamCAFC 34

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Ms Morozov of Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Watts McCray

Orders

The Application in an Appeal filed on 23 March 2016 is dismissed.
There be no order as to costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 106 of 2014
File Number: SYC 7742 of 2010

Ms Medlow

Appellant

and

Mr Medlow

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 23 March 2016 Ms Medlow (“the wife”) seeks the following order:
1.Pursuant to Rule 17.02 of the Family Law Rules 2004 that the Orders made on 8 March 2016 be amended to include the following additional order:
“7.That the parties do all acts and things and sign all documents as are necessary to disburse the funds held in the parties’ joint names with St George Bank, account number … in the following manner and priority:
7.1Subject to any further order of this Court and without admission as to the appropriateness of the sum and without prejudice to the right of the wife to bring such further application as may be considered appropriate and or necessary, the sum of $15,500,000 to be held in an interest bearing account in the name of the parties, in…

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 Medlow & Medlow (No 2)

Details

AGLC: Medlow & Medlow (No 2) [2016] FamCAFC 63
Case: [2016] FamCAFC 63
Decision Date: 28 April 2016

CaseChat Overview and Summary

In the Family Court of Australia, Medlow & Medlow (No 2) dealt with an appeal concerning the amendment of orders under the slip rule in r 17.02 of the Family Law Rules 2004 (Cth). The appellant sought to have orders amended, specifically requesting a payment from a joint bank account. The central issue was whether the Full Court had inadvertently omitted to make such an order and if the slip rule applied to the order sought. Additionally, the court had to determine if the order sought constituted an interim property settlement and whether the Full Court intended to make an order for payment.

The court examined the nature of the order sought and concluded that it was not an order for interim property settlement. The Full Court did not intend to make an order for payment from the joint bank account. Therefore, the slip rule did not apply to the order sought. Given these findings, the application for amendment under the slip rule was dismissed. The court found no basis to conclude that the Full Court had inadvertently omitted to make the order sought.

The court ruled that the Application in an Appeal filed on 23 March 2016 was dismissed. The Full Court did not intend to make the order sought, and thus, the application for amendment was not valid. Consequently, the court made no order as to costs, as the unsuccessful Application in an Appeal did not warrant any costs being awarded to the respondent.

Orders

Orders of the court

The Application in an Appeal filed on 23 March 2016 is dismissed.

There be no order as to costs.

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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