RLD and CBD and Ors - [2006] FMCAfam 226

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RLD & CBD & ORS

[2006] FMCAfam 226

FAMILY LAW – Property proceedings – interlocutory proceedings – third parties – injunctive relief – statutory interpretation.

Family Law Act 1975 (Cth), ss.4(1); 79; 90AA; 90AB; 90AC; 90AD; 90AE; 90AF; 90AJ; 90AK; 114
Acts Interpretation Act 1901 (Cth), ss.15AA; 15AB

In the marriage of Murkin (1980) 5 FamLR 782
Hughes-Kempe and Kempe and Bocampe Pty Ltd & Ors (2005) FLC 93-237
Re Australian Federation of Construction Contractors; Ex Parte Billing (1986) 68 ALR 416
In the marriage of Warby (2001) 28 FamLR 443
Ascot Investments Pty Ltd and Harper & Or (1981) 148 CLR 337

Applicant:

RLD

First Respondent:

Second Respondent:

Third Respondent:

CBD

BXD

CMD

File Number:

NCM596/2006

Judgment of:

Lapthorn FM

Hearing date:

24 April 2006

Date of Last Submission:

02 May 2006

Delivered at:

Newcastle

Delivered on:

15 May 2006

REPRESENTATION

Counsel for the Applicant:

Mr. Bates

Solicitors for the Applicant:

BRETT WIGGINS & ASSOCIATES

Solicitor for the First Respondent:

Mr. Graham

Solicitors for the second and third Respondents:

Mr. Mason agent for principals ANTUNES
Ms. Corbett

ORDERS

That until further order the second respondent be and is hereby restrained from commencing proceedings in any court of competent jurisdiction against the applicant wife and the first respondent for recovery of the sum of $195,000 or any part thereof which the second and third respondent alleges is a loan to the applicant wife and the first respondent.
That until further order the third respondent be and is hereby restrained from taking any further steps in the proceedings commenced by the third respondent against the applicant wife and first respondent husband in the District Court Sydney in case number 1065 of 2006 and, if required by practice direction and/or rule of court make any necessary application by way of notice of motion supported by affidavit to stand over generally the proceedings commenced.
That the question of the second and third respondent’s expenses pursuant to section 90AJ of the Family Law Act 1975 (Cth) as amended (the Act) be adjourned to the hearing of the substantive proceedings pursuant to section 79 of the Act.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM 596 of 2006

RLD

Applicant

And

CBD

First Respondent

BXD
Second Respondent

CMD
Third Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an application for interlocutory relief. The applicant is RLD “the wife”. The first respondent is RLD’s husband CBD “the husband”. The second and third respondents are BXD and CMD respectively. They are the husband’s parents.
On 13 March 2006 RLD brought an application seeking parenting and property orders as well as the interlocutory relief. She seeks orders that the second and third respondents be restrained until further order from commencing proceedings in any court of competent jurisdiction against the husband and the wife for recovery of the sum of $195,000 or part thereof.
The matter came before me 22 March 2006 in a busy duty list and was adjourned for mention on…

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 RLD and CBD and Ors

Details

AGLC: RLD and CBD and Ors [2006] FMCAfam 226
Case: [2006] FMCAfam 226
Decision Date: 15 May 2006

CaseChat Overview and Summary

The case before the court involves an application by the applicant wife and the first respondent, seeking injunctive relief and an adjournment in relation to proceedings initiated by the second and third respondents. The respondents are seeking recovery of a loan amount of $195,000 from the applicant and the first respondent. The application was heard in the Family Court of Australia.

The legal issues that the court had to address included whether to grant an injunction to prevent the second respondent from commencing proceedings in any court of competent jurisdiction against the applicant and the first respondent for recovery of the loan amount, and whether to restrain the third respondent from taking any further steps in the proceedings commenced by them against the applicant and the first respondent in the District Court of New South Wales. Additionally, the court had to consider the question of the respondents' expenses pursuant to section 90AJ of the Family Law Act 1975 (Cth).

The court, after considering the application and the submissions made by the parties, found that the applicant and the first respondent had made out a prima facie case for the relief sought. The court considered the evidence and submissions made by the parties and concluded that an injunction should be granted to prevent the second respondent from taking any further steps in the proceedings in the District Court. The court also found that the question of the respondents' expenses should be adjourned to the hearing of the substantive proceedings. The court made orders restraining the second and third respondents from taking certain steps, and adjourned the question of expenses to the hearing of the substantive proceedings.

Orders

Orders of the court

That until further order the second respondent be and is hereby restrained from commencing proceedings in any court of competent jurisdiction against the applicant wife and the first respondent for recovery of the sum of $195,000 or any part thereof which the second and third respondent alleges is a loan to the applicant wife and the first respondent.

That until further order the third respondent be and is hereby restrained from taking any further steps in the proceedings commenced by the third respondent against the applicant wife and first respondent husband in the District Court Sydney in case number 1065 of 2006 and, if required by practice direction and/or rule of court make any necessary application by way of notice of motion supported by affidavit to stand over generally the proceedings commenced.

That the question of the second and third respondent’s expenses pursuant to section 90AJ of the Family Law Act 1975 (Cth) as amended (the Act) be adjourned to the hearing of the substantive proceedings pursuant to section 79 of the Act.

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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