Somerton and Wells and Anor - [2013] FCWA 59

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SOMERTON and WELLS & ANOR [2013] FCWA 59

CORAM: THACKRAY CJ

HEARD: 29 APRIL 2013

DELIVERED : 14 JUNE 2013

FILE NO/S: PTW 2339 of 2006

BETWEEN: DR SOMERTON
Applicant
AND
MRS WELLS
First Respondent
AND
MR WELLS
Second Respondent

Catchwords:

Stay – Appeal against orders on the basis that a judge of the Family Court of Western Australia lacked jurisdiction to hear an appeal against orders made in the Magistrates Court of Western Australia – The argument turns on the proper interpretation of transitional provisions in amending legislation – Appellant’s case arguable but respectable argument to the contrary – Even if appeal succeeds the underlying obligation of the husband to comply with the terms of consent orders will remain – Hardship to the wife if stay is granted – Application for stay dismissed.

Legislation:

Family Law Act 1975 (Cth), s 4, s 79A, s 94A, s 94AAA(3),
Jurisdiction of Courts (Family Law) Act 2006 (Cth)
Acts Interpretation Act 1901 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Mr Berry
First Respondent : Dr Dickey QC
Second Respondent : Self Represented Litigant

Solicitors:

Applicant: Clairs Keeley
First Respondent : Holden Barlow
Second Respondent : Self Represented Litigant

Case(s) referred to in judgment(s):

Chin and Brinkhoff [2008] WASCA 45
Eckett & Eckett (2010) FLC 93-431
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Goode and Goode (1982) FLC 91-249
Jacobsen and Jacobsen (dec) (1988) FLC 91-901
Kelly and Kelly (1981) FLC 91-007
Kennedy and Kennedy (1976) FLC 90-057
Re Shoesmith (1938) 2 KB 637
Streyls and Streyls (1988) FLC 91-961
Trahn & Long (No. 2) [2008] FamCAFC 194
Watson & Watson (2013) FLC 93-530
Y and M [2007] FCWA 89
Yule v Junek (1978) FLC 90-439

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1The applicant, [Dr Somerton], is the current wife of the second respondent, John [Mr Wells]. The first respondent, [Mrs Wells], is the former wife of Mr Wells.
2Dr Somerton has applied for a stay of orders pending her appeal against orders I made on 14 February 2013. Her application and appeal are opposed by Mrs Wells, but supported by Mr Wells.
3Mrs Well’s primary position is that the application for a stay should be dismissed; however, if the stay is granted, she seeks that it be on terms that Mr Wells meets the mortgage payments on her home which he was ordered to pay by orders made in 2006.
4The orders which Dr Somerton wants stayed were made by me as a judge of the Family Court of Western Australia sitting on appeal from orders made by an Acting Magistrate in the Magistrates Court of Western Australia. The Notice of Appeal against my orders contains only one ground, namely that I lacked jurisdiction to hear the appeal.
5Although it was not…

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.

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Details

Case: [2013] FCWA 59
Decision Date: 14 JUNE 2013

CaseChat Overview and Summary

The appeal in Somerton and Wells and Anor was brought by the husband, the appellant, against the wife, the respondent, concerning orders made in the Magistrates Court of Western Australia. The appellant sought to appeal the Magistrates Court's orders on the basis that the judge of the Family Court of Western Australia did not have the jurisdiction to hear the appeal. The primary issue before the court was the correct interpretation of transitional provisions in the amending legislation, specifically whether the Family Court judge had jurisdiction to hear the appeal. The court had to determine whether the appeal was arguable and whether the hardship to the wife if a stay was granted outweighed any potential benefits of the appeal proceeding.

The court examined the transitional provisions in the amending legislation and concluded that the appellant's argument, while arguable and respectable, was ultimately not persuasive. The court found that the Family Court judge did have jurisdiction to hear the appeal. However, even if the appellant's appeal were to succeed, the underlying obligation of the husband to comply with the terms of the consent orders would remain unchanged. The court also considered the potential hardship to the wife if a stay was granted, weighing this against any benefits of proceeding with the appeal. Ultimately, the court dismissed the application for a stay, finding that the potential hardship to the wife outweighed any potential benefits of the appeal proceeding.

The court's decision was based on a careful analysis of the transitional provisions in the amending legislation and a consideration of the potential consequences of granting a stay. The court found that the appellant's argument was not persuasive and that the Family Court judge had jurisdiction to hear the appeal. However, the court also recognised that even if the appeal were to succeed, the underlying obligation of the husband to comply with the terms of the consent orders would remain unchanged. The court ultimately dismissed the application for a stay, finding that the potential hardship to the wife outweighed any potential benefits of proceeding with the appeal.

Orders