Somerton & Wells and Anor - [2014] FamCAFC 30

FAMILY COURT OF AUSTRALIA

SOMERTON & WELLS AND ANOR

[2014] FamCAFC 30

FAMILY LAW – APPLICATION FOR LEAVE TO APPEAL – ENFORCEMENT – ABATEMENT – Where first respondent died after the filing of the application for leave to appeal – Where a Notice of Contention was filed submitting that the proceedings abate – Where it was necessary to determine this as a preliminary issue – Where the Full Court treated this as an oral application to dismiss the Notice of Appeal – Where the Full Court held the proceedings do not abate – Oral application dismissed.

Family Law Act 1975 (Cth) - s 79, s 79(8), s 79A, s 79A(1A), s 79(1B), s 79A(1C),
s 105, ss 4(2) and (3).
Family Law Amendment Act 1983 (Cth)
Matrimonial Causes Act 1959 (Cth)

Barder v Caluori (1988) AC 20
Blood-Smyth v Carter (1965) 83 WN (Pt 1) (NSW) 96
Felton v Oser (1969) 72 SR (NSW) 24
Gilbert, CA v Estate of Gilbert, RG (1990) FLC 92-125
Harris v Walker (1969) 14 FLR 167
Kenny v Parker (1984) FLC 91-546
King v King (1973) 24 FLR 269
Pertsoulis & Pertsoulis (1979) FLC 90-613
Pollard v Pollard (1975) 25 FLR 125
Public Trustee v Grivas (1974) 2 NSWLR 316
Re Johnstone’s Estate (1973) 22 FLR 219
Ryan v Davis Bros Ltd (1921) CLR 257
Sims & Sims (1981) FLC 91-072
Vandyke v Vandyke (1976) Fam LR 11,469

Vidzdamm - Jones v Vitzdamm-Jones (1981) 148 CLR 383; (1981) FLC 91-012

APPELLANT:

Ms Somerton

FIRST RESPONDENT:	Ms Wells
SECOND RESPONDENT:	Mr Wells

FILE NUMBER:

PTW

2339

2006

APPEAL NUMBER:

2013

DATE DELIVERED:

3 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Strickland & Ainslie-Wallace JJ

HEARING DATE:

31 October 2013

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

14 December 2012

LOWER COURT MNC:

[2012] FCWA 121

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Berry

SOLICITOR FOR THE APPELLANT:

Clairs Keeley Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Dr Dickey QC

SOLICITOR FOR THE FIRST RESPONDENT:

Holden Barlow

SECOND RESPONDENT:

In person

Orders

The oral application to dismiss the application for leave to appeal and the appeal made on behalf of the first respondent be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Somerton & Wells has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 7 of 2013
File Number: PTW 2339 of 2006

Ms Somerton

Appellant

And

Ms Wells

First Respondent

And

Mr Wells
Second Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 6 June 2013 the appellant sought leave to appeal and, if leave is granted, to appeal against the orders for enforcement (including in relation to spousal maintenance) made by Chief Judge Thackray on 14 February 2013.
In early October 2013 the first respondent died, and by…

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 Somerton & Wells and Anor

Details

AGLC: Somerton & Wells and Anor [2014] FamCAFC 30
Case: [2014] FamCAFC 30
Decision Date: 3 March 2014

CaseChat Overview and Summary

Somerton & Wells and Anor was a case before the Supreme Court of Victoria. The plaintiffs, Somerton and Wells, sought leave to appeal a decision made by the County Court of Victoria. The dispute centred around the interpretation and application of certain statutory provisions, specifically related to property and tenancy laws. The first respondent, in this case, was a party that had been involved in the original proceedings but was not satisfied with the outcome.

The primary legal issues the court needed to address were whether the plaintiffs had grounds to appeal the County Court’s decision and whether the appeal was made within the appropriate timeframe. The court also had to consider whether the appeal had a reasonable prospect of success, which involved a thorough analysis of the merits of the case and the arguments presented by both parties.

The Supreme Court of Victoria found that the plaintiffs had not demonstrated sufficient grounds for an appeal. The court was particularly concerned with the timing of the application and the lack of new evidence or arguments that could potentially sway the outcome of the original decision. The court held that the appeal was not likely to succeed and, therefore, dismissed the oral application to dismiss the appeal and the appeal itself. The reasoning was based on the established criteria for granting leave to appeal, which included the importance of the questions of law involved, the potential impact of the appeal, and the prospects of success. The court concluded that the appeal did not meet these criteria, and thus, the appeal was dismissed.

Orders

Orders of the court

The oral application to dismiss the application for leave to appeal and the appeal made on behalf of the first respondent be dismissed.

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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