Penfold and Penfold - [2013] FCCA 2387

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENFOLD & PENFOLD

[2013] FCCA 2387

Catchwords:
FAMILY LAW – Interim property proceedings – application for spousal maintenance and sole occupancy – matters to be considered.

Legislation:

Family Law Act 1975, ss.72, 74; 75, 114

O’Dea & O’Dea (1980) FLC 90-896
Scholte & Scholte (2002) FamCA 59
Davis v Davis (1976) FLC 90-062
Bassett v Bassett (1975) 1 AER 513
Price (unreported) Family Court (Lindenmeyer J) delivered 12 July 1982
Sieling v Sieling (1979) FLC 90-627
MG & JGG [2004] FMCAfam 300
Bevan & Bevan (1995) FLC 92-600
Redman v Redman (1987) FLC 91-805

Applicant:

MS PENFOLD

Respondent:

MR PENFOLD

File Number:

ADC 4432 of 2013

Judgment of:

Judge Brown

Hearing date:

19 December 2013

Date of Last Submission:

19 December 2013

Delivered at:

Adelaide

Delivered on:

19 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr Carlin

Solicitors for the Applicant:

Carlin Lawyers

Counsel for the Respondent:

Ms Lee

Solicitors for the Respondent:

Hyde White Legal Services

ORDERS

The wife vacate the premises located at Property M no later than 4.00 pm on 28 December 2013.
Upon the wife providing written proof to the husband that she has entered into a lease of alternate residential premises for herself, the husband pay the wife the sum of three thousand dollars ($3,000.00) by way of urgent spousal maintenance.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999, the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 28 March 2014 at 11.00am.
Unless otherwise exempted from payment, the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
Should the Applicant fail to comply with Order 4 herein, the conciliation conference is to be vacated and the matter is to be listed for mention before the Court.
Further consideration of this matter be adjourned to 15 April 2014 at 9.30 am.

IT IS NOTED that publication of this judgment under the pseudonym Penfold & Penfold is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 4432 of 2013

MS PENFOLD

Applicant

And

MR PENFOLD

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were orally delivered immediately following the interim hearing concerned. They have been corrected from the transcript in the sense that punctuation has been inserted, paragraphs inserted as intended; errors in expression corrected; footnotes, headings and case references inserted and corrections made necessary to make the orally delivered reasons amenable to being read.
These reasons for judgment concern an interim application for sole occupancy of a property located at Property M and a related application for spousal maintenance.
The parties to the proceedings are Ms Penfold “the wife” and Mr Penfold “the husband”. The wife commenced these proceedings on 26 November 2013 and at her request they were given an urgent return date…

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 Penfold and Penfold

Details

AGLC: Penfold and Penfold [2013] FCCA 2387
Case: [2013] FCCA 2387
Decision Date: 19 December 2013

CaseChat Overview and Summary

In the matter of *Penfold and Penfold*, heard by Judge Brown, the dispute concerned interim property settlement and spousal maintenance orders. The wife was ordered to vacate the premises known as Property M by 4:00 pm on 28 December 2013.

The court was required to determine the terms of interim spousal maintenance and the date by which the wife was to vacate the matrimonial home. Additionally, the court addressed the procedural steps for a conciliation conference.

The court ordered that upon the wife providing written proof of securing alternative residential premises, the husband was to pay her $3,000 by way of urgent spousal maintenance. The parties were directed to attend a conciliation conference on 28 March 2014, with the applicant responsible for the conference fee, failing which the conference would be vacated and the matter listed for mention. Further consideration of the matter was adjourned to 15 April 2014.

Orders

Orders of the court

The wife vacate the premises located at Property M no later than 4.00 pm on 28 December 2013.

Upon the wife providing written proof to the husband that she has entered into a lease of alternate residential premises for herself, the husband pay the wife the sum of three thousand dollars ($3,000.00) by way of urgent spousal maintenance.

Pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999, the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 28 March 2014 at 11.00am.

Unless otherwise exempted from payment, the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

Should the Applicant fail to comply with Order 4 herein, the conciliation conference is to be vacated and the matter is to be listed for mention before the Court.

Further consideration of this matter be adjourned to 15 April 2014 at 9.30 am.

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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