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Oglesby & Oglesby

Oglesby & Oglesby

Case [2023] FedCFamC2F 565 19 January 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Oglesby & Oglesby [2023] FedCFamC2F 565

File number(s): PAC 1109 of 2022

Judgment of: JUDGE TURNBULL

Date of judgment: 19 January 2023

Catchwords: FAMILY LAW – interim property settlement – second application for interim property orders

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Accardi & Russo [2022] FedCFamC1F 253

Black & Kellner [1992] FLC92-287

Chea & Sok [2022] FedCFamC1F 628

Gabel & Yardley [2008] FamCAFC 162

Kachmarik v Gebel^[ (2019) FLC 93-927

Kyriakos & Kyriakosand Anor (2013) FLC 93-528

Langer & Langer [2021] FedCFamC1F 49

Malloy & Stopford Malloy (No.4) [2020] FamCA 995

Marchant & Marchant (2012) FLC 93-520

Massalski & Riley [2019] FamCA 1013

Medlow & Medlow (2016) FLC 93-692 at [69]

Moorcroft& Moorcroft [2018] FamCAFC 253

Reid & Lynch [2010] FamCAFC 184

Sala & Habner [2018] FCCA 2321

Re Golding [2020[ HCA 38

Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166

Watson & Watson [2013] FamCAFC 25

Division: Division 2 Family Law

Number of paragraphs: 92

Date of last submission/s: 22 December 2022

Date of hearing: 9 & 22 December 2022

Place: Hobart

Counsel for the Applicant Mr Williams

Solicitors for the Applicant Clinch Long Woodbridge Lawyers

Counsel for the Respondent Mr Wong

Solicitors for the Respondent Marando Solicitors
ORDERS

PAC 1109 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR OGLESBY

Applicant

AND:
MS OGLESBY

Respondent

order made by:

JUDGE TURNBULL

DATE OF ORDER:

19 JANUARY 2023

THE COURT ORDERS:
1.The Husband’s Application in a Proceeding filed 25 November 2022 be dismissed.
2.That all applications for costs arising from the Husband’s Application in a Proceeding filed 25 November 2022 be reserved until the conclusion of the final hearing.
3.That the Application for Final Orders is adjourned for a final mention and directions at 10.00 a.m. on 1 March 2023 via Microsoft Teams.
4.That the time for the parties to file documentation for the final hearing, pursuant to paragraphs 1-4 of the Orders dated 7 November 2022 be extended to 4.00 p.m. on 17 March 2023.

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 a pseudonym Oglesby & Oglesby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE TURNBULL

This is an application in a proceeding filed by Mr…

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: Oglesby & Oglesby [2023] FedCFamC2F 565
Case: [2023] FedCFamC2F 565
Decision Date: 19 January 2023

CaseChat Overview and Summary

The parties in this case are a husband and wife who are currently in the midst of a divorce. The husband filed a second application for interim property orders, seeking a review of the initial interim property settlement. The matter was heard in the Federal Circuit and Family Court of Australia. The wife opposed the husband's application and sought a dismissal, arguing that the application was an abuse of process and that the husband had failed to provide sufficient evidence to warrant a review of the initial settlement. The legal issues before the court were whether the husband's application was an abuse of process and whether the husband had provided sufficient evidence to warrant a review of the initial settlement. The court found that the husband's application was indeed an abuse of process, as it was clear that the husband was attempting to relitigate issues that had already been decided. Furthermore, the court found that the husband had not provided sufficient evidence to warrant a review of the initial settlement. As a result, the court dismissed the husband's application and reserved all applications for costs until the conclusion of the final hearing. The application for final orders was adjourned for a final mention and directions at 10.00 a.m. on 1 March 2023 via Microsoft Teams, and the time for the parties to file documentation for the final hearing was extended to 4.00 p.m. on 17 March 2023.

The court's decision was based on a thorough analysis of the evidence presented by both parties. The court found that the husband's application was an abuse of process because it was clear that the husband was attempting to relitigate issues that had already been decided. The court noted that the husband had previously sought an interim property settlement, and that the court had already made a decision on that matter. The court found that the husband's second application was an attempt to circumvent the initial decision and was therefore an abuse of process. Additionally, the court found that the husband had not provided sufficient evidence to warrant a review of the initial settlement. The court noted that the husband had not provided any new evidence or information that would warrant a change in the initial settlement. As a result, the court dismissed the husband's application and reserved all applications for costs until the conclusion of the final hearing. The court's decision was based on a careful consideration of the evidence and the law, and it is unlikely that the husband will be successful in any further applications for interim property orders.

Orders

Orders of the court

THE COURT ORDERS:

1. The Husband’s Application in a Proceeding filed 25 November 2022 be dismissed.

2. That all applications for costs arising from the Husband’s Application in a Proceeding filed 25 November 2022 be reserved until the conclusion of the final hearing.

3. That the Application for Final Orders is adjourned for a final mention and directions at 10.00 a.m. on 1 March 2023 via Microsoft Teams.

4. That the time for the parties to file documentation for the final hearing, pursuant to paragraphs 1-4 of the Orders dated 7 November 2022 be extended to 4.00 p.m. on 17 March 2023.

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.

Citations

AGLC Citation

Oglesby & Oglesby [2023] FedCFamC2F 565

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 23 of 23 shown

Chea & Sok
[2022] FedCFamC1F 628 Para 22

…The principles were helpfully summarised in Chea & Sok [2022] FedCFamC1F 628: In Strahan , the Full Court held that there is a two-stage process to applications for interim partial property settlement. Firstly, the procedural step, which is the question of whether the Court should exercise discretion to entertain and de…
Accardi & Russo
[2022] FedCFamC1F 253 Para 21

…Mr Wong referred me to a number of decisions including: Reid & Lynch [2010] FamCAFC 184, Accardi & Russo [2022] FedCFamC1F 253, Malloy & Stopford Malloy (No.4) [2020] FamCa 995, Sala & Habner [2018] FCCA 2321 and Re Golding [2020] HCA 38.…
Short v Short
[2021] NZHC 3404 Para 12

…Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365; and as to South Australia see per Bray CJ (with whom Mitchell and Jacobs JJ agreed) in Short v Short (1973) 7 SASR1 at11); (c) The rule applies where facts establish disobedience of an order, even though there has been no application for the party to be dealt…
Langer & Langer
[2021] FedCFamC1F 49 Para 12

…an order for discovery prevented a subsequent application in the same proceedings from being heard. I did find the recent decision of Langer & Langer [2021] FedCFamC1F 49 where the Court did not permit the Husband’s application to sell the home to proceed where he was in continuous breach of an Order to meet the mortga…
Malloy and Stopford Malloy (No. 4)
[2020] FamCA 995 Para 23

…with the proper Courtesy) to the question. In response I borrow from the learned comments of my colleague Harper J in Malloy & Stopford Malloy (No.4) [2020] FamCA 995 where his Honour opined: [15] At [23] of the July judgment I pointed out that where there are repeated interim applications regarding spousal mainten…
Re Golding
[2020] HCA 38 Para 21

…] FamCAFC 184, Accardi & Russo [2022] FedCFamC1F 253, Malloy & Stopford Malloy (No.4) [2020] FamCa 995, Sala & Habner [2018] FCCA 2321 and Re Golding [2020] HCA 38.…
Joubert and Anor & Verhoeven and Anor
[2020] FamCA 53 Para 23

…ject to the constraints imposed by the public interest in the finality of litigation. I repeated what I said in Joubert and Anor & Verhoeven and Anor [2020] FamCA 53 at [30] - [31]. I rely upon that statement of the law again, in particular the principles stated by Brereton J in Paris King Investments Pty Ltd & 1…
Massalski & Riley
[2019] FamCA 1013 Para 18

…Deputy Chief Justice McClelland summarised the relevant law and its rational in Massalski & Riley [2019] FamCA 1013 where he stated: NONDISCLOSURE The obligation of disclosure is fundamental to the effective functioning of this jurisdiction. It is an obligation that exists both at common law and pursuant to statute.…
Moorcroft & Moorcroft
[2018] FamCAFC 253 Para 8

…Mr Wong referred to the decisions in Watson & Watson [2013] FamCAFC 25 and Moorcroft & Moorcroft [2018] FamCAFC 253 as authority for the proposition that disobedience of the Court’s Orders is inconsistent with a right to hear a new application in the same cause.…
SALA & HABNER
[2018] FCCA 2321 Para 21

…ns including: Reid & Lynch [2010] FamCAFC 184, Accardi & Russo [2022] FedCFamC1F 253, Malloy & Stopford Malloy (No.4) [2020] FamCa 995, Sala & Habner [2018] FCCA 2321 and Re Golding [2020] HCA 38.…
Graf-Salzmann & Graf
[2015] FCWA 68 Para 18

…the disclosure of “information relevant to the dispute,” not simply one that attaches to the production of documents. In Graf-Salzmann & Graf [2015] FCWA 68 Walters J noted: ... a judge is entitled to take a "robust view" in relation to findings regarding a party's financial position (including a party's capacity…
Watson & Watson
[2013] FamCAFC 25 Para 8

…Mr Wong referred to the decisions in Watson & Watson [2013] FamCAFC 25 and Moorcroft & Moorcroft [2018] FamCAFC 253 as authority for the proposition that disobedience of the Court’s Orders is inconsistent with a right to hear a new application in the same cause.…
Osferatu & Osferatu
[2012] FamCA 408 Para 22

…teration at any time prior to, or as part of, the final exercise of the s 79 power”. In Osferatu & Osferatu [2012] FamCA 408, Watts J at [41] made clear a detailed inquiry is not required: As was discussed in Harris and confirmed in Strahan , the second step in making an interim property order is to have regard to…
Reid & Lynch
[2010] FamCAFC 184 Para 21

…Mr Wong referred me to a number of decisions including: Reid & Lynch [2010] FamCAFC 184, Accardi & Russo [2022] FedCFamC1F 253, Malloy & Stopford Malloy (No.4) [2020] FamCa 995, Sala & Habner [2018] FCCA 2321 and Re Golding [2020] HCA 38.…
Paris King Investments Pty Ltd v Rayhill
[2006] NSWSC 578 Para 23

…tement of the law again, in particular the principles stated by Brereton J in Paris King Investments Pty Ltd & 1 Ors v Michael Normal Rayhill & 2 Ors [2006] NSWSC 578 at [14] as follows: the general rule is that interlocutory relief is not to be reconsidered if at all that is involved is a review on the same facts…
Chang v Su
[2002] FamCA 156 Para 18

…acity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su [2002] FamCA 156; (2002) FLC 93-117 at [71] and [72]. In Efthidmiadis & Efthidmiadis [1993] FamCA 15; (1993) FLC 92-361 at [79,804], the Full Court said: So far as the Wife i…
Young v Jackman
[1993] HCATrans 214 Para 12

…t rule subject to limited exceptions, in this jurisdiction the discretionary approach applies (as to New South Wales see Young J in Young v Jackman (1986) 7 NSWLR 97 at 102; 11 Fam LR 331 at 335 referring to the Court of Appeal decision in Permewan Wright Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365;…
Livesey v Jenkins
[1984] UKHL 3 Para 18

…ese & Briese [1985] FamCA 23; (1986) FLC 91-713 at [75,181], Smithers J applied the House of Lords decision in Livesey (formerly Jenkins) and Jenkins [1984] UKHL 3; [1985] 1 All ER 106 in determining that: ... in financial proceedings between spouses each party must make a full and frank disclosure of all materi…
[1985] FAMCA 23
[1985] FAMCA 23 Para 18

…tal to the effective functioning of this jurisdiction. It is an obligation that exists both at common law and pursuant to statute. In Briese & Briese [1985] FamCA 23; (1986) FLC 91-713 at [75,181], Smithers J applied the House of Lords decision in Livesey (formerly Jenkins) and Jenkins [1984] UKHL 3; [1985] 1 All…
[1992] FAMCA 69
[1992] FAMCA 69 Para 18

…o her on issues of credit overall and virtually ensured that she was put out of Court so far as s75(2) factors were concerned. In Weir & Weir [1992] FamCA 69; (1993) FLC 92-338 at [79,593], the Full Court, stated: It seems to us that once it has been established that there has been a deliberate non-disclosure, whi…
[1993] FAMCA 15
[1993] FAMCA 15 Para 18

…disclosure of his/her financial position: see Chang v Su [2002] FamCA 156; (2002) FLC 93-117 at [71] and [72]. In Efthidmiadis & Efthidmiadis [1993] FamCA 15; (1993) FLC 92-361 at [79,804], the Full Court said: So far as the Wife is concerned, there is no doubt that she should be treated as substantially understat…
Gabel & Yardley
[2008] FAMCAFC 162 Para 26

…nal proceedings. He submitted the case is distinguishable and that to reason otherwise would fall foul of what the Full Court said in Gabel & Yardley [2008] FamCAFC 162:[5] The legislative framework, and the authorities to which we have been referred, suggest that the Court’s power to make orders with respect to sett…
As the respondents point out, when Mr Meyer provided his advice he did not have the benefit of Strahan v Strahan
[2009] FAMCAFC 166 Para 27

…And Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166: In relation to the variation of an interim property order Bryant CJ and Coleman J said: [69] As we have earlier explained, in our view the focus of our attention should be whether or not the power to make orders pursuant to s 79 has been exhausted. U…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention (from Para 18)

File number(s):	PAC 1109 of 2022
Judgment of:	JUDGE TURNBULL
Date of judgment:	19 January 2023
Catchwords:	FAMILY LAW – interim property settlement – second application for interim property orders
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Accardi & Russo [2022] FedCFamC1F 253 Black & Kellner [1992] FLC92-287 Chea & Sok [2022] FedCFamC1F 628 Gabel & Yardley [2008] FamCAFC 162 Kachmarik v Gebel^[ (2019) FLC 93-927 Kyriakos & Kyriakosand Anor (2013) FLC 93-528 Langer & Langer [2021] FedCFamC1F 49 Malloy & Stopford Malloy (No.4) [2020] FamCA 995 Marchant & Marchant (2012) FLC 93-520 Massalski & Riley [2019] FamCA 1013 Medlow & Medlow (2016) FLC 93-692 at [69] Moorcroft& Moorcroft [2018] FamCAFC 253 Reid & Lynch [2010] FamCAFC 184 Sala & Habner [2018] FCCA 2321 Re Golding [2020[ HCA 38 Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 Watson & Watson [2013] FamCAFC 25
Division:	Division 2 Family Law
Number of paragraphs:	92
Date of last submission/s:	22 December 2022
Date of hearing:	9 & 22 December 2022
Place:	Hobart
Counsel for the Applicant	Mr Williams
Solicitors for the Applicant	Clinch Long Woodbridge Lawyers
Counsel for the Respondent	Mr Wong
Solicitors for the Respondent	Marando Solicitors

PAC 1109 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR OGLESBY Applicant
AND:	MS OGLESBY Respondent

order made by:	JUDGE TURNBULL
DATE OF ORDER:	19 JANUARY 2023