PARKE & PARKE - [2015] FamCAFC 202

FAMILY COURT OF AUSTRALIA

PARKE & PARKE

[2015] FamCAFC 202

FAMILY LAW – APPEAL – Application for expedition of hearing the appeal – Where the wife seeks to expedite the husband’s appeal against orders of the primary judge which dismissed his application to enforce a financial agreement and instead set aside that agreement – Where the husband has a terminal condition and if his appeal is successful, the matter would require a new trial – Where the husband does not oppose the application – Where the circumstances justify priority being given to the appeal – Hearing expedited.

Family Law Act 1975 (Cth) ss 90G, 90K(1)(a), (b), (c) and (e), 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Parke

RESPONDENT:

Mr Parke

FILE NUMBER:

BRC

6354

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

21 October 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

21 October 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 June 2015

LOWER COURT MNC:

[2015] FCCA 1692

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Brasch QC

SOLICITOR FOR THE APPLICANT:	Keating Lehn Solicitors
COUNSEL FOR THE RESPONDENT:	Mr Galloway
SOLICITOR FOR THE RESPONDENT:	Family Law Solutions

Orders

The Application in an Appeal filed by the wife on 23 September 2015 to expedite the hearing of the husband’s Notice of Appeal filed 21 July 2015 be allowed.
The hearing of the appeal be listed in the Brisbane Full Court sittings commencing 1 February 2016, on a day to be fixed.
The costs of this Application be reserved to the Full Court of the Family Court of Australia.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 52 of 2015
File Number: BRC 6354 of 2014

Ms Parke

Applicant

And

Mr Parke

Respondent

REASONS FOR JUDGMENT

On 23 September 2015 Ms Parke (“the wife”) filed an Application in an Appeal seeking to expedite the hearing of the appeal filed by Mr Parke (“the husband”). The husband filed the Notice of Appeal on 21 July 2015.
The appeal is from orders made on 19 June 2015. Judge Howard dismissed the husband’s application seeking to enforce a financial agreement between the parties, and instead set aside the agreement.
Due to the husband’s declining health, the wife seeks the hearing of the appeal be expedited to the earliest Full Court sittings available. The husband, represented by counsel, neither supports nor opposes the application.

Background and Reasons of the Primary Judge

The husband is currently 73 years of age. The wife is currently 67 years of age. The parties were in a relationship for approximately 37 years. They have one adult son together.
The husband was diagnosed with a terminal condition in 2012 and it is…

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 PARKE & PARKE

Details

AGLC: PARKE & PARKE [2015] FamCAFC 202
Case: [2015] FamCAFC 202
Decision Date: 21 October 2015

CaseChat Overview and Summary

The matter in PARKE & PARKE was before the Family Court of Australia, where the wife, the respondent in the appeal, sought to expedite the hearing of the husband's appeal against a property settlement. The husband had filed a Notice of Appeal on 21 July 2015, and the wife subsequently lodged an Application in an Appeal on 23 September 2015, requesting that the appeal be expedited. The legal issues before the court were whether the application for expediting the appeal was justified, and if so, when the appeal should be heard.

The court considered the factors relevant to expediting the hearing of an appeal, including the urgency of the matter, the potential impact of delay on the parties, and the overall efficiency of the court’s resources. The wife argued that expediting the hearing was necessary due to the urgency and the significant financial implications for both parties. The court acknowledged the wife’s submissions and concluded that the application should be granted, taking into account the need for timely resolution and the importance of the issues at stake. Consequently, the court allowed the wife's application and directed that the appeal be listed for hearing during the Brisbane Full Court sittings starting 1 February 2016. The court also determined that the costs of the application be reserved for determination by the Full Court.

The orders made by the court were that the application to expedite the hearing of the husband’s appeal be allowed, the appeal be listed for hearing during the Brisbane Full Court sittings commencing 1 February 2016, and the costs of the application be reserved for determination by the Full Court of the Family Court of Australia.

Orders

Orders of the court

The Application in an Appeal filed by the wife on 23 September 2015 to expedite the hearing of the husband’s Notice of Appeal filed 21 July 2015 be allowed.

The hearing of the appeal be listed in the Brisbane Full Court sittings commencing 1 February 2016, on a day to be fixed.

The costs of this Application be reserved to the Full Court of the Family Court of Australia.

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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