Simpson and Simpson (No 2) - [2014] FamCA 1169

FAMILY COURT OF AUSTRALIA

SIMPSON & SIMPSON (NO 2) [2014] FamCA 1169

FAMILY LAW – PROPERTY – Application for Stay of Orders pending the determination of an appeal against those Orders

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No. 1] (1986) 160 CLR 220 at 222
Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685

Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681
Trahn & Long (No.2) [2008] FamCAFC 194 at [38]
Vadisanis & Vadisanis [2013] FamCAFC 90

APPLICANT: Mr Simpson

RESPONDENT: Ms Simpson

FILE NUMBER: BRC 4117 of 2014

DATE DELIVERED: 19 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 19 December 2014
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson of Senior Counsel

SOLICITOR FOR THE APPLICANT: Hartley Healy Lawyers

COUNSEL FOR THE RESPONDENT: Mr Looney of Queen’s Counsel

SOLICITOR FOR THE RESPONDENT: Rice Naughton
Orders
IT IS ORDERED
(1)The Application in a Case filed by the husband on 18 December 2014 is dismissed.
(2)The Applicant husband shall pay the Respondent wife’s costs of and incidental to the Application in a Case dismissed by paragraph 1 hereof, as may be agreed or as assessed pursuant to the Family Law Rules 2004 (Cth) on a party and party basis.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE
FILE NUMBER: BRC 4117 of 2014

Mr Simpson
Applicant
And

Ms Simpson
Respondent
REASONS FOR JUDGMENT
1.On Monday 15 December 2014 I delivered judgment in respect of competing applications for various interim orders sought by the Applicant and the Respondent in this matter that I had heard on Tuesday 8 December 2014.
2.Yesterday, 18 December 2014, the Applicant husband filed a Notice of Appeal against Orders 5, 6 and 7 of the Orders I made on Monday. At the same time, he filed an Application in a Case seeking an order that Orders 5, 6 and 7 be stayed until the determination of his appeal against those Orders.
3.The wife opposes the stay application and asks that I dismiss it.
4.I heard the application this morning, giving Senior Counsel for the Applicant husband leave to appear at the hearing by telephone. Queen’s Counsel for the Respondent wife appeared at the hearing and I was assisted by the provision of written submissions from both barristers.
The Orders appealed against and sought to be stayed
5.Orders 5, 6 and 7 of the Orders of Monday 15 December 2014 are as follows:

(5) That pursuant to s 80(1)(h) of the Family Law Act 1975 (Cth), on or before Friday 6 February 2015, the Husband or an entity he controls, pay directly to the Rice Naughton Family Law Trust Account the sum of $500,000…

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 Simpson and Simpson (No 2)

Details

AGLC: Simpson and Simpson (No 2) [2014] FamCA 1169
Case: [2014] FamCA 1169
Decision Date: 19 December 2014

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an application by a husband seeking to set aside an earlier consent order made in family law proceedings. The wife sought to uphold the original consent order.

The primary legal issue before the Court was whether the husband had established grounds to set aside the consent order, specifically concerning allegations of duress and undue influence in its procurement. The Court also had to consider the principles governing the setting aside of consent orders in family law matters, particularly in light of the finality generally afforded to such orders.

Forrest J, applying established principles, found that the husband had failed to demonstrate the necessary elements of duress or undue influence to justify setting aside the consent order. The Court emphasised that consent orders, representing a compromise between parties, are to be treated with a degree of finality and require compelling evidence to be overturned. The husband's evidence was not considered sufficient to meet this high threshold.

Consequently, the husband's application to set aside the consent order was dismissed. The husband was also ordered to pay the wife's costs of and incidental to the dismissed application.

Orders

Orders of the court

IT IS ORDERED

(1) The Application in a Case filed by the husband on 18 December 2014 is dismissed.

(2) The Applicant husband shall pay the Respondent wife’s costs of and incidental to the Application in a Case dismissed by paragraph 1 hereof, as may be agreed or as assessed pursuant to the Family Law Rules 2004 (Cth) on a party and party basis.

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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