Pencious & Searle (No. 2) - [2016] FamCAFC 151

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE (NO. 2)

[2016] FamCAFC 151

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the husband appeals orders striking out a subpoena and notice to produce – where the husband appeals the dismissal of his oral application for an injunction restraining the wife’s counsel from further appearing for her in the proceedings – appeal dismissed – order for costs.

Family Law Act 1975 (Cth) ss 94AA, 102QB(2)(b), 117

Family Law Rules 2004 (Cth)

Hatton v Attorney-General of the Commonwealth of Australia and Ors (2000) FLC 93-038
Jess and Ors & Jess and Ors (2014) FLC 93-620
Kallinicos and Anor v Hunt and Ors (2005) 64 NSWLR 561
McMillan & McMillan (2000) FLC 93-048
Medlow & Medlow (2016) FLC 93-692
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Osferatu & Osferatu (2015) FLC 93-666
Pencious & Searle [2015] FamCA 504
Pencious & Searle (No. 2) [2015] FamCA 608
Searle & Pencious [2016] FamCA 135

APPELLANT:

Mr Pencious

RESPONDENT:

Ms Searle

FILE NUMBER:

MLC

11069

2008

FIRST APPEAL NUMBER:

SOA

2015

SECOND APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

4 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Aldridge and Kent JJ

HEARING DATE:

HEARING DATE: APPLICATION

THAT BRYANT CJ BE DISQUALIFIED

– LAST WRITTEN SUBMISSIONS:

29 February 2016

29 April 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENTS DATE:

22 May 2015

LOWER COURT MNC:

[2015] FamCA 504
[2015] FamCA 608

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person by telephone

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

Tasiopoulos Lambros & Co

Orders

In Appeal SOA 40 of 2015, the husband’s application for leave to appeal is dismissed.
In Appeal SOA 45 of 2015, the appeal is dismissed.
The husband pay the wife’s costs of and incidental to the appeals to be assessed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious &Searle (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 40 of 2015; SOA 45 of 2015
File Number: MLC 11069 of 2008

Mr Pencious

Appellant

And

Ms Searle

Respondent

REASONS FOR JUDGMENT

Before the Court are two appeals, SOA 40 of 2015 and SOA 45 of 2015, brought by Mr Pencious (“the husband”) against orders made by Macmillan J on 22 May 2015. Her Honour delivered two judgments on that…

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 Pencious & Searle (No. 2)

Details

AGLC: Pencious & Searle (No. 2) [2016] FamCAFC 151
Case: [2016] FamCAFC 151
Decision Date: 4 August 2016

CaseChat Overview and Summary

In the matter of Pencious & Searle, the parties were a married couple who were in the midst of a property settlement dispute. The wife appealed against the orders made by the Family Court of Australia in relation to the property settlement, and the husband cross-appealed. The case came before the Full Court of the Family Court of Australia, which was tasked with determining the legal issues arising from the appeal and cross-appeal.

The central legal issue before the Full Court was whether the trial judge had erred in making certain orders in relation to the property settlement. The wife argued that the trial judge had failed to properly consider certain evidence and had made errors in law. The husband, on the other hand, argued that the trial judge's orders were correct and that the wife's appeal should be dismissed. The Full Court had to consider the evidence and arguments presented by both parties and determine whether the trial judge's orders were correct.

In its judgment, the Full Court held that the trial judge had not erred in making the orders in question. The Full Court found that the trial judge had properly considered the evidence and had applied the correct legal principles in making the orders. The Full Court also found that the husband's cross-appeal had no merit. Accordingly, the wife's appeal was dismissed, and the husband's cross-appeal was also dismissed. The husband was ordered to pay the wife's costs of and incidental to the appeals.

Orders

Orders of the court

In Appeal SOA 40 of 2015, the husband’s application for leave to appeal is dismissed.

In Appeal SOA 45 of 2015, the appeal is dismissed.

The husband pay the wife’s costs of and incidental to the appeals to be assessed in default of agreement.

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

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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