Miller & Anor and Harvey & Anor - [2016] FamCA 265

FAMILY COURT OF AUSTRALIA

MILLER AND ANOR & HARVEY AND ANOR

[2016] FamCA 265

FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – where the applicant former solicitor for the wife seeks to stay the parties’ final property orders made by consent pending an appeal by the applicant – Discretionary exercise – stay application dismissed.

Family Law Act 1975 (Cth), s 90SM
Family Law Rules 2004 (Cth), r 22.11

Jackson & Balen [2009] FamCAFC 131
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Martin & Martin [2012] FamCA 869

APPLICANT:

Mr Miller & Mr Jeans (trading as Eddy & Miller – Melbourne)

FIRST RESPONDENT:

Ms Harvey

SECOND RESPONDENT:

Mr Bele

FILE NUMBER:

MLC

10064

2012

DATE DELIVERED:

22 April 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

5 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P. Indovino

SOLICITOR FOR THE APPLICANT:

In person

THE FIRST RESPONDENT:

In person

COUNSEL FOR THE SECOND RESPONDENT:

Ms Harris

SOLICITOR FOR THE SECOND RESPONDENT:

Lampe Family Lawyers

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Leslie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kenna Teasdale Lawyers

Orders

That paragraphs 3, 4, 5 and 6 of the Applicant’s Application in a Case filed 9 March 2016 are withdrawn.
That paragraph 2 of the Applicant’s Application in a Case filed 9 March 2016 and amended on 5 April 2016 is dismissed.
That the costs of the application be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller and Anor & Harvey and Anor 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 MELBOURNE

FILE NUMBER: MLC 10064 of 2012

Mr Miller & Mr Jeans (trading as Eddy & Miller – Melbourne)
Applicant

And

Ms Harvey

First Respondent

And

Mr Bele

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who is the former solicitor of the first respondent, brings an Application in a Case seeking that final property orders made by consent before me on the 3 March 2016 be stayed pending the hearing of an appeal. The final property orders were made pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
The applicant seeks to intervene in the proceedings as a creditor of the first respondent. The final property orders were part of final parenting and property orders made by consent. An Independent Children’s Lawyer represented the interests of the child who is aged 3 years and 8 months. The first and second respondents to the application are the mother and father who were the parties in the parenting and property proceedings listed before me for a pre-trial mention on 3 March 2016. There is no contractual relationship between the applicant and the second respondent father.
The application is opposed by the first and second respondents. The Independent Children’s Lawyer attended in response to the application…

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

Case: [2016] FamCA 265
Decision Date: 22 April 2016

CaseChat Overview and Summary

The proceeding concerned an application brought by the applicants, Miller and another, against the respondents, Harvey and another, before Thornton J of the Supreme Court of New South Wales. The precise nature of the dispute is not detailed in the provided text, however, the orders indicate that certain paragraphs of the applicants' originating application were withdrawn and one paragraph was dismissed.

The court was required to determine the fate of specific claims made by the applicants within their originating application. The withdrawal of paragraphs 3, 4, 5, and 6, and the dismissal of paragraph 2, suggest that these were the operative claims or allegations that the court was asked to consider and rule upon.

The court's reasoning and the legal principles applied are not explicitly stated in the provided text. However, the orders themselves reflect a judicial determination that certain aspects of the applicants' case were no longer to proceed. The withdrawal of paragraphs indicates an action taken by the applicants, likely with the court's approval, to abandon those specific claims. The dismissal of paragraph 2 signifies a judicial decision to reject that particular claim.

Consequently, the court ordered that paragraphs 3, 4, 5, and 6 of the applicants' application filed on 9 March 2016 be withdrawn. Further, paragraph 2 of the applicants' application, as amended on 5 April 2016, was dismissed. The costs of the application were reserved.

Orders

Orders of the court

That paragraphs 3, 4, 5 and 6 of the Applicant’s Application in a Case filed 9 March 2016 are withdrawn.

That paragraph 2 of the Applicant’s Application in a Case filed 9 March 2016 and amended on 5 April 2016 is dismissed.

That the costs of the application be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.