Oates & Crest - [2008] FamCAFC 29

FAMILY COURT OF AUSTRALIA

OATES & CREST

[2008] FamCAFC 29

FAMILY LAW – APPEAL – APPEAL FROM INTERIM ORDERS OF JUDGE OF FAMILY COURT OF AUSTRALIA – INTERIM SPOUSAL MAINTENANCE – Notwithstanding that trial Judge did not consider interim spousal maintenance claim in accordance with established principles (Rutherford & Rutherford (1991) FLC 92-255, Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc. (1991) 148 CLR 170 and Bevan v Bevan (1995) FLC 92-600 cited) held that correct approach would have produced a substantially similar result thus appellate intervention not justified, particularly as proceedings were interlocutory. Farnell & Farnell (1996) FLC 92-681 and NHC & RCH (2004) FLC 93-204 cited.

FAMILY LAW - APPEAL AGAINST INJUNCTION FOR PERSONAL PROTECTION – WIFE RESTRAINED FROM BEING WITHIN 100 METRES OF PROPERTY OF THIRD PARTY WHERE HUSBAND NOT FOUND TO RESIDE – Assertion that trial Judge lacked jurisdiction to order an injunction for the personal protection of a party in the terms he did not established. Held that the order for interim injunction was not for the personal protection of a party to the marriage but for that of a third party and thus trial Judge was in error in granting such injunction. Family Law Act 1975 (Cth) ss 4(1)(e) and 114(1) considered. Esmore & Esmore (1979) FLC 90‑711, Mills & Mills (1976) FLC 90‑079, McLean & McLean (1979) FLC 90-655 and Murkin & Murkin (1980) FLC 90‑806 discussed. Personal protection held to refer to the physical integrity of a party. Murkin & Murkin (1980) FLC 90‑806 per Nygh J cited. Third party protection available pursuant to State statutory provisions. Crimes Act 1900 (NSW) s 562K cited.

Family Law Act 1975 (Cth) Section 114; Section 4(1)(e)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Rutherford & Rutherford (1991) FLC 92-255
Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc. (1981) 148 CLR 170
Bevan v Bevan (1995) FLC 92-600
Farnell & Farnell (1996) FLC 92-681
Chorn & Hopkins (2004) FLC 93-204
Esmore & Esmore (1979) FLC 90‑711
Mills & Mills (1976) FLC 90-079
McLean & McLean (1979) FLC 90-655
Murkin & Murkin (1980) FLC 90-806

APPELLANT:

MS OATES

RESPONDENT:

MR CREST

FILE NUMBER:

SYF

2939

2006

APPEAL NUMBER:

2007

DATE DELIVERED:

20 March 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May & Boland JJ

HEARING DATE:

7 February 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 May 2007

LOWER COURT MNC:

[2007] FamCA 549

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson, SC
Ms Knox

SOLICITOR FOR THE APPELLANT:

Aitken Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Simpson, SC

Ms Cleary

SOLICITOR FOR THE RESPONDENT:

Athena Touriki Solicitors

Orders

That leave to appeal order 7 of the orders made by the Honourable Justice Watts on 31 May, 2007 is granted.
That the appeal is allowed in part.
That order 7 of the orders made by the Honourable Justice Watts on 31 May, 2007 be discharged.
That there…

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

AGLC: Oates & Crest [2008] FamCAFC 29
Case: [2008] FamCAFC 29
Decision Date: 20 March 2008

CaseChat Overview and Summary

The appeal before the court involved the decision of the Family Court of Australia regarding interim spousal maintenance and an injunction for personal protection. The wife had sought interim spousal maintenance, while the husband was restrained by an injunction from being within 100 metres of a property belonging to a third party. The wife appealed the decision, arguing that the trial judge did not follow established principles in determining the interim spousal maintenance and that the injunction was improperly granted for the protection of a third party.

The legal issues before the court were whether the trial judge correctly applied the principles for determining interim spousal maintenance and if the judge had the jurisdiction to grant the injunction for the protection of a third party. The court examined the applicable principles and authorities, including Rutherford & Rutherford, Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc., Bevan v Bevan, Farnell & Farnell, and NHC & RCH. Regarding the injunction, the court referred to Esmore & Esmore, Mills & Mills, McLean & McLean, and Murkin & Murkin and considered the relevant provisions of the Family Law Act 1975 (Cth) and the Crimes Act 1900 (NSW).

The court found that while the trial judge did not strictly follow the established principles for determining interim spousal maintenance, the result would have been substantially the same. Therefore, appellate intervention was not justified, particularly because the proceedings were interlocutory. However, the court held that the injunction was not for the personal protection of a party to the marriage but for a third party, and thus, the trial judge erred in granting it. The court discharged the injunction and allowed the appeal in part. The court also granted leave to appeal and made no order as to costs.

Orders

Orders of the court

That leave to appeal order 7 of the orders made by the Honourable Justice Watts on 31 May, 2007 is granted.

That the appeal is allowed in part.

That order 7 of the orders made by the Honourable Justice Watts on 31 May, 2007 be discharged.

That there be no order as to costs.

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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