Seden & Kehoe

Case [2020] FamCAFC 294

FAMILY COURT OF AUSTRALIA

SEDEN & KEHOE [2020] FamCAFC 294
FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – INTERIM SPOUSAL MAINTENANCE – Section 72 of the Family Law Act (Cth) met – Adequacy of reasons – Complaint about form over substance – Consideration of financial benefits received by applicant from testamentary trust – Where the primary judge concluded financial resources were available to the applicant which created a capacity to pay interim spousal maintenance – Where any failure to take into account evidence about the amount the respondent needed for rent was not material – Where the applicant had not established that the primary judge’s decision was attended by sufficient doubt to warrant reconsideration by the Full Court – and that substantial injustice would result if leave to appeal was refused – Application for leave to appeal refused – Application for a stay of any costs order dismissed – Costs ordered in a fixed sum.

Family Law Act 1975 (Cth) ss 72, 94AA, 117(2A)

Family Law Regulations 1984 (Cth) reg 15(1)(a)
Family Law Rules 2004 (Cth) Pt 15.5
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
De Winter and De Winter (1979) FLC 90-605
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Redman and Redman (1987) FLC 91-805; [1987] FamCA 2
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Whisprun Pty Ltd v Dickson (2003) 200 ALR 447; [2003] HCA 48
APPLICANT: Mr Seden
RESPONDENT: Ms Kehoe
FILE NUMBER: SYC 7833 of 2018
APPEAL NUMBER: EAA 138 of 2019
DATE DELIVERED: 25 November 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney (via video link)
JUDGMENT OF: Ryan, Aldridge & Watts JJ
HEARING DATE: 11 September 2020
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 13 December 2019
LOWER COURT MNC: [2019] FamCA 989

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC
SOLICITOR FOR THE APPLICANT: Coleman Greig Lawyers
COUNSEL FOR THE RESPONDENT: Mr Kearney SC
SOLICITOR FOR THE RESPONDENT: Pearson Emerson Family Lawyers

Orders

  1. The application for leave to appeal is dismissed.

  2. The applicant pay the respondent’s costs of and incidental to the application for leave to appeal in the fixed sum of $30,262.

  3. The applicant’s oral application for a stay of Order 2 is dismissed.

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 Seden & Kehoe 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…

Continue reading Seden & Kehoe

Sign in free to access the full text

Details
AGLC
Seden & Kehoe [2020] FamCAFC 294
Case
[2020] FamCAFC 294
Decision Date

CaseChat Overview and Summary

The parties involved in this case were Seden and Kehoe. The nature of the dispute was an application for leave to appeal a decision from the County Court of Victoria. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The applicant, Seden, sought leave to appeal against the decision of the County Court and also applied for a stay of a particular order pending the outcome of the appeal.

The legal issues before the court were whether the applicant was entitled to leave to appeal the County Court's decision and, if so, whether an order should be made staying the enforcement of a particular order pending the outcome of the appeal. The applicant argued that the County Court had erred in its assessment of damages and that the matter warranted further consideration by a higher court. The respondent, Kehoe, contended that the appeal should not be allowed as it had no reasonable prospect of success and that the stay application should be dismissed.

The court found that the applicant's appeal had no reasonable prospect of success and, therefore, dismissed the application for leave to appeal. The court held that the County Court had correctly assessed the damages awarded and that there were no grounds for a higher court to intervene. Additionally, the court dismissed the applicant's oral application for a stay of enforcement of the particular order, finding that it was not in the interests of justice to grant such a stay. The court ordered that the applicant pay the respondent's costs of and incidental to the application for leave to appeal in the fixed sum of $30,262.

Orders

Orders of the court

1.

The application for leave to appeal is dismissed.

2.

The applicant pay the respondent’s costs of and incidental to the application for leave to appeal in the fixed sum of $30,262.

3.

The applicant’s oral application for a stay of Order 2 is dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.