Legal Research
Cases
O'Hurley & O'Hurley

O'Hurley & O'Hurley

Case [2008] FamCAFC 57 11 April 2008

Consensual Setting Aside of Consent Orders

Costs

Family Law

Type to search within this case.

FAMILY COURT OF AUSTRALIA

O’HURLEY & O’HURLEY

[2008] FamCAFC 57

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY – SECTION 79A APPLICATION TO SET ASIDE CONSENT ORDERS – FINDING OF FACT – Assertion that Federal Magistrate erred in his finding relating to the duration of a second period of cohabitation not established. Nor shown that such duration materially impacted on exercise of discretion.

FAMILY LAW – JUDGMENTS - ADEQUACY OF REASONS – Not established that Federal Magistrate failed to give sufficient reasons for concluding as he did, his reasoning process being reasonably apparent from his reasons for judgment and revealing that he was clearly aware of the facts upon which the husband based his claim. Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191 cited. Husband failed to establish his case on the balance of probabilities. Prowse & Prowse (1995) FLC 92-557 cited.

FAMILY LAW - JUSTICE – Contention that justice demands that consent orders be set aside by this Court and/or that Federal Magistrate erred in failing to consider the justice of the case not established. Section 79A Family Law Act 1975 (Cth) discussed. Section 79A does not require consideration of the justice of the case where no relief pursuant to the section has been made out. No alleged unfairness at the time of making the consent orders nor arising thereafter could have assisted the husband’s case before the Federal Magistrate.

FAMILY LAW - CONSENSUAL SETTING ASIDE OF CONSENT ORDERS – Not established that Federal Magistrate erred in finding that the change in parenting and homemaking roles of the parties did not constitute implied consent to set aside consent orders.

FAMILY LAW - COSTS – The appeal against the substantive judgment of Federal Magistrate being unsuccessful, no disturbance of costs order warranted.

Family Law Act 1975 (Cth) s 79A

Matthews & Matthews (2006) FLC 93-298
Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
Norbis v Norbis (1986) 161 CLR 513
CDJ v VAJ (1998) 197 CLR 172
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Bennett & Bennett (1991) FLC 92-191
Prowse & Prowse (1995) FLC 92-557

APPELLANT:

Mr O’Hurley

RESPONDENT:

Ms O’Hurley

FILE NUMBER:

NCM

926

2006

APPEAL NUMBER:

111

2007

DATE DELIVERED:

11 April 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

1 April 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

24 August 2007

1 November 2007

LOWER COURT MNC:

[2007] FMCAfam 653

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Byrnes

SOLICITOR FOR THE APPELLANT:

Byrnes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Tregilgas

SOLICITOR FOR THE RESPONDENT:

Flintoff McNeilly Lawyers

Orders

That the appeal…

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 O'Hurley & O'Hurley

Details

AGLC: O'Hurley & O'Hurley [2008] FamCAFC 57
Case: [2008] FamCAFC 57
Decision Date: 11 April 2008

CaseChat Overview and Summary

In the appeal of O'Hurley & O'Hurley, the parties, a husband and wife, contested various family law issues, including the setting aside of consent orders, adequacy of reasons, and the justice of the case. The case originated in the Federal Magistrates Court and was subsequently appealed to a higher court. The husband argued that the Federal Magistrate had erred in his findings concerning the duration of a second period of cohabitation, the adequacy of reasons provided for the decision, and the justice of the case. He also claimed that the change in roles between the parties constituted implied consent to set aside the consent orders.

The legal issues the court had to decide were whether the Federal Magistrate erred in his finding relating to the duration of the second period of cohabitation, if he failed to give sufficient reasons for concluding as he did, and if the husband's contentions regarding the justice of the case were valid. Furthermore, the court needed to determine if the change in roles constituted implied consent to set aside the consent orders. The husband bore the burden of proving his claims on the balance of probabilities.

The court found that the husband had not established his case on the balance of probabilities. The Federal Magistrate's finding regarding the duration of the second period of cohabitation was not erroneous, nor was it shown that this duration materially impacted on the exercise of discretion. The court also determined that the Federal Magistrate had given sufficient reasons for his decision, and his reasoning process was reasonably apparent from his reasons for judgment. Additionally, the husband's contention that justice demanded the setting aside of the consent orders or that the Federal Magistrate had erred in failing to consider the justice of the case was not established. The court further held that the change in parenting and homemaking roles of the parties did not constitute implied consent to set aside the consent orders.

The appeal was dismissed, and no disturbance of the costs order was warranted. The wife was given 21 days to file and serve submissions in support of any application for costs, followed by the husband having 21 days to respond to the wife's submissions in relation to costs.

Orders

Orders of the court

That the appeal be dismissed.

That within twenty-one (21) days the wife file and serve submissions in support of any application for costs.

That within twenty-one (21) days thereafter the husband file and serve submissions in response to the submissions on behalf of the wife in relation to costs.

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.

Citations

AGLC Citation

O'Hurley & O'Hurley [2008] FamCAFC 57

Most Recent Citation

Martoulis & Valas [2022] FedCFamC2F 1781

Cases citing this decision · 5 of 5 shown

Martoulis & Valas
[2022] FedCFamC2F 1781 Para 7

…In the matter of O’Hurley & O’Hurley [2008] FamCAFC 57 ( O’Hurley ), Coleman J, sitting as the Full Court, dismissed the husband’s appeal against the first instance decision. The trial judge had dismissed the husband’s application to set aside previous consent orders pursuant to section 79A and including, pursuant t…
Monaco and Daniels and Anor
[2021] FCWA 49

…R 106 Maxwell & Miltiadis (2015) FLC 93-644 Melville & Melville (No 3) (2020) FLC 93-985 Molier and Van Wyk (1980) FLC 90-911 O’Hurley & O’Hurley [2008] FamCAFC 57 Official Trustee in Bankruptcy v Bryan and the Estate of Christine Ann Gatenby (Deceased) (2006) FLC 93-258 Pearce & Pearce [2016] FamCAFC 14 R v Kelly (…
Maples and Maples
[2019] FCCA 698 Para 4

…orders. What was said by Coleman J, sitting as a single judge of appeal, in O’Hurley & O’Hurley [158] pertains equally to the instant case: [158] [2008] FamCAFC 57, at [67]. The case thus fell to be determined on the basis of whether the circumstantial evidence established as a matter of inference or conclusion that…
Imbardelli and Imbardelli (No. 2)
[2018] FamCA 865 Para 2

…In O’Hurley & O’Hurley [2008] FamCAFC 57, Coleman J at paragraph 67 similarly emphasised the significance of circumstantial evidence in determining whether or not there was implied consent: The case thus fell to be determined on the basis of whether the circumstantial evidence established as a matter of inference or…
Waterman & Waterman
[2017] FamCAFC 23 Para 3

…o far as the [relevant consent] orders were concerned, the parties nevertheless intended to no longer be bound by the terms of those orders. [32] [2008] FamCAFC 57, at [67].…

View all 5 citing cases →

Cases cited in this decision · 10 of 10 shown

CDJ v VAJ
[1998] HCA 67 Para 3

…In more recent times, Kirby J said in CDJ v VAJ (1998) 197 CLR 172 (at 230 – 231):- 1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from…
Norbis v Norbis
[1986] HCA 17 Para 2

…gistrate could have principally exercised his discretion either in favour of the husband or against him. The judgment of Brennan J in Norbis v Norbis (1986) 161 CLR 513 is relevant in those circumstances. His Honour there said (at 539 – 540):- The difficulties in the way of developing guidelines beset an appellate re…
Gronow v Gronow
[1979] HCA 63 Para 1

…ing of fact made by the learned Federal Magistrate by reference to which his discretion was exercised. The judgment of Stephen J in Gronow v Gronow (1979) 144 CLR 513 is relevant in those circumstances. His Honour there said (at 519 – 520):- The constant emphasis of the cases is that before reversal an appellate cour…
Australian Coal and Shale Employees' Federation v The Commonwealth
[1953] HCA 25 Para 1

…umption that the decision of the learned Federal Magistrate is correct. Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 said (at 627):- I shall not repeat the references I made in Lovell v. Lovell [(1950) 81 CLR 513, at pp 532-534] to cases of the highest authority which…
Lovell v Lovell
[1950] HCA 52 Para 1

…al & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 said (at 627):- I shall not repeat the references I made in Lovell v. Lovell [(1950) 81 CLR 513, at pp 532-534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisd…
House v R
[1936] HCA 40 Para 2

…In House v The King (1936) 55 CLR 499 the High Court said (at 504 – 505):- The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the…
[2007] FMCAFAM 653
[2007] FMCAFAM 653

…[2007] FMCAfam 653…
63 WN 34
63 WN 34 Para 4

…give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. … Moreover, I agree with the sta…
House v The King
63 WN 176 Para 2

…In House v The King (1936) 55 CLR 499 the High Court said (at 504 – 505):- The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primar…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24 Para 4

…In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 McHugh JA said (at 280):- If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
79A 2 mentions (from Para 1)