Morse & Duarte (No 7) - [2024] FedCFamC1F 264

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morse & Duarte (No 7) [2024] FedCFamC1F 264

File number: SYC 737 of 2014

Judgment of: HARPER J

Date of judgment: 18 April 2024

Catchwords: FAMILY LAW – STAY – Where wife seeks stay of final orders pending outcome of the appeal – Where wife’s previous application for a stay dismissed – Where wife seeks to found second application for a stay on new grounds of appeal – Where no prospects of success in grounds of appeal – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 4, 79, 80, 106A

Judiciary Act 1903 (Cth)

Real Property Act 1900 (NSW) ss 42, 43

Cases cited:
Morse & Duarte (No 5) [2024] FedCFamC1F 7

Morse & Duarte (No 6) [2024] FedCFamC1F 86

Division: Division 1 First Instance

Number of paragraphs: 40

Date of hearing: 18 April 2024

Place: Sydney

Solicitor for the Applicant: Mr Doyle of Lander & Rogers

The First Respondent: Litigant in person

The Second Respondent: No appearance
ORDERS

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MORSE

Applicant

AND:
MS DUARTE

First Respondent

MR TOLMAN

Second Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

18 APRIL 2024

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 9 April 2024 be dismissed.
2.The Respondent Wife pay the Applicant Husband’s costs in the sum of $1,500 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morse & Duarte has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:

These are property proceedings between the applicant husband, Mr Morse (“the husband”) and the respondent wife, Ms Duarte (“the wife”).
Proceedings have been in this Court for a period of about a decade, having concluded parenting issues. Final orders were made in 2017 concerning all issues, were the subject of an unsuccessful appeal concerning parentings orders and the financial issues were remitted for rehearing.
The trial pursuant to the remitter was listed on 15 January 2024. A hearing took place without the wife being present after she had failed to comply with directions of the Court for preparation for final hearing.
Final orders were made after judgment was delivered on 18 January 2024 (Morse & Duarte (No…

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 Morse & Duarte (No 7)

Details

AGLC: Morse & Duarte (No 7) [2024] FedCFamC1F 264
Case: [2024] FedCFamC1F 264
Decision Date: 18 April 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with an application for a stay of final orders in family law proceedings between Mr Morse, the applicant, and Ms Duarte, the first respondent, with Mr Tolman, the second respondent. Ms Duarte sought a stay of final orders pending the outcome of an appeal she had filed. This was her second application for a stay; a previous application had already been dismissed by the court. The new application was founded on additional grounds of appeal which the court had to assess for their prospects of success.

The legal issues that the court had to determine were whether the new grounds of appeal presented by Ms Duarte had any prospects of success and whether these grounds were sufficient to justify a stay of the final orders. The court considered the merits of the new grounds of appeal and found that they did not present a case with a reasonable prospect of success. The court was also mindful of the need to ensure that the interests of justice were served and that there were no undue delays in the proceedings.

In its judgment, the court concluded that the new grounds of appeal were not likely to succeed and therefore dismissed the application for a stay. The court ordered that the application be dismissed and that Ms Duarte pay Mr Morse's costs in the sum of $1,500 within 28 days. The form of the order is subject to review for minor errors or variations as permitted by the rules of the court.

Orders

Orders of the court

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MORSE

Applicant

AND:

MS DUARTE

First Respondent

MR TOLMAN

Second Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

18 APRIL 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 9 April 2024 be dismissed.

2. The Respondent Wife pay the Applicant Husband’s costs in the sum of $1,500 within 28 days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

File number:	SYC 737 of 2014
Judgment of:	HARPER J
Date of judgment:	18 April 2024
Catchwords:	FAMILY LAW – STAY – Where wife seeks stay of final orders pending outcome of the appeal – Where wife’s previous application for a stay dismissed – Where wife seeks to found second application for a stay on new grounds of appeal – Where no prospects of success in grounds of appeal – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 4, 79, 80, 106A Judiciary Act 1903 (Cth) Real Property Act 1900 (NSW) ss 42, 43
Cases cited:	Morse & Duarte (No 5) [2024] FedCFamC1F 7 Morse & Duarte (No 6) [2024] FedCFamC1F 86
Division:	Division 1 First Instance
Number of paragraphs:	40
Date of hearing:	18 April 2024
Place:	Sydney
Solicitor for the Applicant:	Mr Doyle of Lander & Rogers
The First Respondent:	Litigant in person
The Second Respondent:	No appearance

SYC 737 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MORSE Applicant
AND:	MS DUARTE First Respondent MR TOLMAN Second Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	18 APRIL 2024