Moreton and Moreton and Anor - [2019] FamCA 945

FAMILY COURT OF AUSTRALIA

MORETON & MORETON AND ANOR

[2019] FamCA 945

FAMILY LAW – PRACTICE AND PROCEDURE – Application to transfer Supreme Court proceedings to the Family Court – Cross-Vesting legislation

Family Law Act 1975 (Cth) s, 75(2), 79, 90AA, 90AE
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) s, 5(4)

Acton Engineering Proprietary Ltd v Campbell & Ors [1991] FCA 610
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Bankinvest AG v Seabrook (1998) 14 NSWLR 711
Chapman & Jansen (1990) FLC-92-139
James Hardie & Co Pty Ltd v Barry (2000) NSWSC 353
Kenda & Johnson (1992) 107 FLR 19
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Philip Morris Inc v Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Valceskiv Valceski [2007] NSWSC 440
Warby & Warby [2001] FamCA 1469
Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143

APPLICANT:

Ms Moreton

FIRST RESPONDENT:

Mr Moreton

SECOND RESPONDENT:

B Pty Ltd

FILE NUMBER:

SYC

5424

2019

DATE DELIVERED:

12 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

19 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Edwards Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Self-represented Litigant

COUNSEL FOR THE SECOND RESPONDENT:

Mr Leopold SC

Orders

The wife’s Application in a Case filed 24 September 2019 is dismissed.
The parties’ final property settlement proceedings are stayed pending finalisation of Supreme Court proceedings commenced by B Pty Ltd against the husband.
In the event all parties agree to transfer the proceedings to the Supreme Court Consent Orders will be made in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5424 of 2019

Ms Moreton

Applicant

And

Mr Moreton

First Respondent

And

B Pty Ltd

Second Respondent

REASONS FOR JUDGMENT

This is an application by the wife, consented to by the husband, to have proceedings commenced against the husband by B Pty Ltd in the Supreme Court of New South Wales in January 2019, to which the wife was joined in March 2019, transferred to the Family Court to be heard with family law proceedings commenced by the wife on 16 August 2019.
B Pty Ltd does not consent to the transfer and seeks that the proceedings in the Family Court be either stayed until the Supreme Court proceedings are finalised, or that there be a partial stay in that…

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: [2019] FamCA 945
Decision Date: 12 December 2019

CaseChat Overview and Summary

In *Moreton and Moreton and Anor*, Henderson J of the Federal Circuit Court of Australia considered an application by the wife, which was dismissed. The primary dispute before the court concerned the final property settlement proceedings between the parties, which were stayed pending the outcome of separate Supreme Court proceedings initiated by B Pty Ltd against the husband.

The court was required to determine whether to dismiss the wife's application and, crucially, whether to stay the final property settlement proceedings. The decision to stay the proceedings was contingent on the ongoing Supreme Court litigation involving the husband and a third party, B Pty Ltd.

Henderson J reasoned that it was appropriate to stay the property settlement proceedings to await the finalisation of the Supreme Court proceedings. This approach aimed to ensure that all relevant financial matters, including those potentially impacted by the Supreme Court litigation, were considered before a final property settlement was ordered. The court indicated that if all parties agreed, the proceedings could be transferred to the Supreme Court by consent orders.

Consequently, the wife’s application was dismissed, and the final property settlement proceedings were stayed. The court also provided for the possibility of transferring the proceedings to the Supreme Court by consent.

Orders

Orders of the court

The wife’s Application in a Case filed 24 September 2019 is dismissed.

The parties’ final property settlement proceedings are stayed pending finalisation of Supreme Court proceedings commenced by B Pty Ltd against the husband.

In the event all parties agree to transfer the proceedings to the Supreme Court Consent Orders will be made in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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