Midden and Galloway (No.2) - [2013] FCCA 2264

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIDDEN & GALLOWAY (No.2)

[2013] FCCA 2264

Catchwords:
FAMILY LAW – Property – slip rule – stay application pending appeal – whether application for costs should also be stayed.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Rules 2001, r.16.05, sch. 1

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Penfold & Penfold (1980) 5 Fam LR 579
The Marriage of Kohan (1992) Fam LR 245
In the Marriage of Munday and Bowman (1997) 22 Fam LR321
Rittman and Rittman (No.3) [2009] FamCA 1138

Applicant:

MR MIDDEN

Respondent:

MS GALLOWAY

File Number:

DNC 199 of 2012

Judgment of:

Judge Harland

Hearing date:

27 November 2013

Date of Last Submission:

27 November 2013

Delivered at:

Darwin

Delivered on:

23 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Truman

Solicitors for the Applicant:

DS Family Law

The Respondent:

In Person

ORDERS

That pursuant to rule 16.05(e) of the Federal Circuit Court Rules 2001 the Orders made 25 October 2013 be amended as follows:
(a)Order (1)(e) of the Orders be amended with the years “2007 and 2008” be substituted for the words “2011 and 2012”;
(b)That Order (1) of the Orders be amended with “$340,000” to be substituted with “$239,817”;
(c)That Order (13) be amended with the inclusion of sub Order (e) and (f) stating as follows:
e)That the respondent be restrained from continuing proceedings No. (omitted) in the Supreme Court of the Northern Territory.
f)That the respondent be restrained from instituting further proceedings against the applicant in respect of the property of the parties, trusts of the parties or either of them in any Court, apart from the Family Court of Australia or the Federal Circuit Court of Australia.
That the orders made, as amended by order (1) above 1 – 8 and 10 – 12 of the orders made on 21 October 2013 be stayed pending the determination of the respondent’s appeal File No. (omitted).
That order (9) be stayed only in so far as it applies to the properties at Property A and Property M in the Northern Territory.
That within 3 business days the respondent provide to the applicant signed withdrawals of caveats for the Property I and Property B properties in South Australia.
In the event the respondent does not comply with order (4), I direct that a Registrar of the Federal Circuit Court of Australia sign the withdrawals of caveats.
That the respondent pays the applicant’s costs in the sum of $38,428 within 60 days of today’s date.
That order (6) be stayed pending the determination of the respondent’s appeal File No. (omitted).

IT IS NOTED that publication of this judgment under the pseudonym Midden & Galloway (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 199 of 2012

MR MIDDEN

Applicant

And

MS GALLOWAY

Respondent

REASONS FOR JUDGMENT

Introduction

I delivered judgment and made final property orders in this matter on 25 October 2013. The respondent filed…

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 Midden and Galloway (No.2)

Details

AGLC: Midden and Galloway (No.2) [2013] FCCA 2264
Case: [2013] FCCA 2264
Decision Date: 23 December 2013

CaseChat Overview and Summary

In *Midden and Galloway (No.2)*, Judge Harland of the Federal Circuit Court of Australia considered an application to amend previous orders made on 25 October 2013. The dispute involved financial matters between the parties, with the applicant seeking to restrain the respondent from continuing proceedings in the Supreme Court of the Northern Territory and from instituting further proceedings in other courts concerning the parties' property or trusts, except for the Family Court of Australia or the Federal Circuit Court of Australia.

The court was required to determine whether to amend the existing orders to include these restraints and to consider the impact of a pending appeal by the respondent on various orders, including those related to specific properties and costs. The court also had to address the respondent's compliance with providing signed withdrawals of caveats for certain properties.

Judge Harland applied rule 16.05(e) of the Federal Circuit Court Rules 2001 to amend the previous orders. The court amended the financial figures and dates within the original orders and imposed significant restraints on the respondent's ability to pursue litigation outside of the designated family law courts. Furthermore, the court ordered stays on certain amended orders pending the determination of the respondent's appeal, while also mandating the provision of caveat withdrawals, with a provision for a Registrar to sign them if the respondent failed to comply. The court also made orders regarding the respondent's payment of the applicant's costs, which were also stayed pending the appeal.

Orders

Orders of the court

That pursuant to rule 16.05(e) of the Federal Circuit Court Rules 2001 the Orders made 25 October 2013 be amended as follows:

(a) Order (1)(e) of the Orders be amended with the years “2007 and 2008” be substituted for the words “2011 and 2012”;

(b) That Order (1) of the Orders be amended with “$340,000” to be substituted with “$239,817”;

e) That the respondent be restrained from continuing proceedings No. (omitted) in the Supreme Court of the Northern Territory.

f) That the respondent be restrained from instituting further proceedings against the applicant in respect of the property of the parties, trusts of the parties or either of them in any Court, apart from the Family Court of Australia or the Federal Circuit Court of Australia.

That the orders made, as amended by order (1) above 1 – 8 and 10 – 12 of the orders made on 21 October 2013 be stayed pending the determination of the respondent’s appeal File No. (omitted).

That order (9) be stayed only in so far as it applies to the properties at Property A and Property M in the Northern Territory.

That within 3 business days the respondent provide to the applicant signed withdrawals of caveats for the Property I and Property B properties in South Australia.

In the event the respondent does not comply with order (4), I direct that a Registrar of the Federal Circuit Court of Australia sign the withdrawals of caveats.

That the respondent pays the applicant’s costs in the sum of $38,428 within 60 days of today’s date.

That order (6) be stayed pending the determination of the respondent’s appeal File No. (omitted).

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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