RULE & RULE - [2015] FCCA 3191

FEDERAL CIRCUIT COURT OF AUSTRALIA

RULE & RULE

[2015] FCCA 3191

Catchwords:
FAMILY LAW – Summary dismissal of s.79A application – enforcement of property orders – vexatious proceedings – costs.

Legislation:

Family Law Act 1975 (Cth), ss.79(1)(a), 81, 102Q

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), r.13.10

Lindon v the Commonwealth of Australia (No.2) [1996] HCA 14
Gitane & Velacruz [2007] FamCA 183
Clifton and Stuart (1991) FLC 92-194
Cannon v Acres [2014] FamCA 104

Applicant:

MR RULE

Respondent:

MS RULE

File Number:

MLC 9480 of 2012

Judgment of:

Judge Harland

Hearing date:

23 October 2015

Date of Last Submission:

23 October 2015

Delivered at:

Melbourne

Delivered on:

2 December 2015

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Tulloch

Solicitors for the Respondent:

J A Middlemis

ORDERS

The application filed on 3 August 2015 is summarily dismissed.
The wife is directed to instruct that the funds held on trust for the parties pursuant to the Orders of 22 May 2013 by Diane Williams Solicitor, of (omitted) be paid out by that firm:
(a)The sum of $26,000 to Ms B Rule pursuant to paragraph 2(c)(ii) of the final Orders made on 22 May 2013 provided however that in the event that such funds have already been paid by Ms Williams to Ms B Rule then such amount be divided equally between the husband and the wife;
(b)The sum of $67,997.76 to the wife’s solicitors trust account for payment out to the wife; and
(c)The balance then remaining (approximately $24,588.88) be paid to the husband save that:
(i)From the husband’s share there be paid to the wife’s costs of $7,756.
(ii)From the husband’s share of the funds there be deducted any further legal costs rendered by Ms Williams in this matter.
That the wife have sole authority to direct the conveyancer to disburse the proceeds of sale without the husband’s consent.
Pursuant to s.102QB(2)(b) of the Family Law Act 1975 (Cth) the Applicant MR RULE is prohibited from instituting proceedings under the Act against or in relation to the Respondent

MS RULE
without first being granted leave to commence that proceeding pursuant to s.102QE of the Act.

IT IS NOTED

A.The particular consequences arising from a vexatious proceedings order are set out in s.102QD of the Act, which provides:-
(1)If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:
(a)that person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and
(b)another person must not, acting in concert with the person, institute, or proceedings of that type, in the court without the leave of the court under section 102QG.

(2)If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(3)Without limiting subsection (2), the court may make:
(a)an order declaring proceedings are…

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 RULE & RULE

Details

AGLC: Rule and Rule [2015] FCCA 3191
Case: [2015] FCCA 3191
Decision Date: 2 December 2015

CaseChat Overview and Summary

In the matter of *Rule & Rule*, Judge Harland of the Federal Circuit Court of Australia considered an application filed by the husband, Mr Rule, and the wife, Ms Rule. The dispute concerned the distribution of funds held on trust and the husband's ability to institute further proceedings under the *Family Law Act 1975* (Cth).

The court was required to determine the appropriate distribution of funds held by a solicitor, the terms of payment for specific amounts to the wife and Ms B Rule, and the allocation of the remaining balance to the husband, including deductions for costs. Additionally, the court had to consider whether to impose restrictions on the husband's ability to commence future proceedings under the Act.

Judge Harland reasoned that the application filed by the husband should be summarily dismissed. The court then made detailed orders for the disbursement of the trust funds, directing the wife to instruct the solicitor to pay specific sums to Ms B Rule and the wife's solicitors, with the balance to be paid to the husband. These orders included provisions for the wife's costs and any further legal costs incurred. The court also granted the wife sole authority to direct the conveyancer regarding the proceeds of sale. Crucially, pursuant to s.102QB(2)(b) of the *Family Law Act 1975* (Cth), the husband was prohibited from instituting further proceedings under the Act against or in relation to the wife without first obtaining leave.

Orders

Orders of the court

The application filed on 3 August 2015 is summarily dismissed.

The wife is directed to instruct that the funds held on trust for the parties pursuant to the Orders of 22 May 2013 by Diane Williams Solicitor, of (omitted) be paid out by that firm:

(a) The sum of $26,000 to Ms B Rule pursuant to paragraph 2(c)(ii) of the final Orders made on 22 May 2013 provided however that in the event that such funds have already been paid by Ms Williams to Ms B Rule then such amount be divided equally between the husband and the wife;

(b) The sum of $67,997.76 to the wife’s solicitors trust account for payment out to the wife; and

(i) From the husband’s share there be paid to the wife’s costs of $7,756.

(ii) From the husband’s share of the funds there be deducted any further legal costs rendered by Ms Williams in this matter.

That the wife have sole authority to direct the conveyancer to disburse the proceeds of sale without the husband’s consent.

Pursuant to s.102QB(2)(b) of the Family Law Act 1975 (Cth) the Applicant MR RULE is prohibited from instituting proceedings under the Act against or in relation to the Respondent

MS RULE

without first being granted leave to commence that proceeding pursuant to s.102QE 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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