Meredith & Allen - [2014] FamCAFC 223

FAMILY COURT OF AUSTRALIA

MEREDITH & ALLEN

[2014] FamCAFC 223

FAMILY LAW – APPLICATION IN APPEAL – ADDUCE FURTHER EVIDENCE – Where application not opposed by respondent – Application allowed.

FAMILY LAW – APPEAL – PROPERTY –Where husband self-represented at trial and in appeal - Where the husband contends that the wife’s accountants failed to comply with a subpoena and order of the judge to make certain disclosure – Where no complaint of non-compliance was raised at trial – Where the trial judge’s obligations did not extend to ensuring compliance with orders where no complaint about non-compliance is made – Where husband asserted wasted assets in liquidation proceedings – Where the trial judge correctly rejected the waste argument – Where husband contended the trial judge erred by not delaying the wife’s access to a controlled monies account for at least 28 days after judgment – Where the trial judge is not obliged to quarantine assets pending appeal – Where no error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – ADULT CHILD MAINTENANCE – Where husband appeals against orders of adult child maintenance – Where child suffers from a serious disabling condition – Where husband asserts the trial judge erred in finding that the child’s proper needs are in the sum of $400 per week – Where no error demonstrated.

FAMILY LAW – APPEAL – COSTS – Where husband’s appeal wholly failed – Where husband has greater earning capacity than the wife – Where Court satisfied that on balance the factors justify a departure from the usual costs rule – Husband ordered to pay wife’s costs.

Corporations Act 2001 (Cth) s 511, 530B
Family Law Act 1975 (Cth)

De Winter & De Winter (1979) FLC 90-605
Goddard & Patterson [2011] FamCAFC 14
House v The King (1936) 55 CLR 499
In the Marriage of Crawford (1979) FLC 90-647
In the Marriage of Lee Steere (1985) FLC 91-626
Pierce v Pierce (1999) FLC 92-844

APPELLANT:

Mr Meredith

RESPONDENT:

Ms Allen

FILE NUMBER:

SYC

6886

2008

APPEAL NUMBER:

2014

DATE DELIVERED:

21 November 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace and Tree JJ

HEARING DATE:

19 September 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 June 2014

LOWER COURT MNC:

[2014] FamCA 376

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITORS FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

The application of the wife filed 4 August 2014 to adduce further evidence, being withdrawn, is dismissed.
The application of the husband filed 5 September 2014 to adduce further evidence is allowed.
The appeal is dismissed.
The appellant pay the respondent’s costs of the appeal, failing agreement to be assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meredith & Allen 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

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.

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Details

AGLC: Meredith & Allen [2014] FamCAFC 223
Case: [2014] FamCAFC 223
Decision Date: 21 November 2014

CaseChat Overview and Summary

The appeal arose from a family law case where the husband, self-represented, contested various orders made by the trial judge. The primary issues were whether the trial judge had erred in rejecting the husband's claims regarding the wife's accountants' non-compliance with subpoenas, the wife's access to a controlled monies account, and the maintenance order for their adult child. Additionally, the husband sought to appeal the costs order made against him.

The court addressed the husband's claims regarding non-compliance with subpoenas, noting that no complaint had been raised at the trial, and thus the trial judge was not obligated to ensure compliance. The court also ruled that the trial judge did not err in rejecting the husband's waste argument and was not required to quarantine assets pending appeal. The court examined the maintenance order for the adult child, finding no error in the trial judge's assessment of the child's needs.

The court concluded that the husband's appeal had failed on all grounds. Given the husband's greater earning capacity compared to the wife, the court found it justified to depart from the usual costs rule. Consequently, the husband was ordered to pay the wife's costs of the appeal.

The final orders included dismissing the wife's application to adduce further evidence, allowing the husband's application to adduce further evidence, dismissing the appeal, and ordering the husband to pay the wife's costs of the appeal, with assessment to be agreed upon or assessed if no agreement is reached.

Orders

Orders of the court

The application of the wife filed 4 August 2014 to adduce further evidence, being withdrawn, is dismissed.

The application of the husband filed 5 September 2014 to adduce further evidence is allowed.

The appeal is dismissed.

The appellant pay the respondent’s costs of the appeal, failing agreement to be assessed.

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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