Somerton & Wells (deceased)

[2015] FamCAFC 12

FAMILY COURT OF AUSTRALIA

SOMERTON & WELLS (DECEASED) AND ANOR [2015] FamCAFC 12

FAMILY LAW – APPEAL – LEAVE TO APPEAL – ENFORCEMENT – JURISDICTION – Where on appeal the primary judge discharged orders for enforcement made by an acting Family Law Magistrate of Western Australia and made orders requiring the sale of two properties and discharging arrears of spouse maintenance – Where the appellant asserts that the primary judge lacked jurisdiction to hear the appeal from the acting Family Law Magistrate – Where the appellant asserts that pursuant to the transitional provision in item 27 of Schedule 1 of the Jurisdiction of Courts (Family Law) Act 2006 (Cth) which amended ss 94AAA and 96 of the Family Law Act 1975 (Cth), the amendments to the appeal process apply in this case – Where the appeal raises important questions and leave to appeal should be granted – Where the primary judge addressed the question of the interpretation of the transitional provision in the context of determining an application for a stay – Where the Full Court held that the primary judge’s interpretation was accurate and the transitional provision does not apply the amendments in this case – Where the word “proceedings” as appears in the transitional provision encompasses everything done in litigation relating to a specific matrimonial cause from the time jurisdiction of the Court is invoked until the time judgment is enforced or fully performed – Where there is no merit in this ground of appeal – Where the primary judge did not err in ordering the appellant to sell the two properties owned jointly by the appellant and the second respondent pursuant to s 90AF of the Family Law Act 1975 (Cth) – Where the primary judge did not err in restraining the appellant until further order from disposing of her share of the proceeds of sale of either of the said properties – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the appellant seeks an extension of time to file a “Re-Amended” Notice of appeal – Where the application is opposed – Where there is no explanation for the failure to file a Notice of Appeal within the time period provided in the Family Law Rules 2004 (Cth) – Where there is no material supporting the further proposed grounds of appeal – Where the merits of the further proposed grounds of appeal cannot be assessed or considered – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the first respondent sought an order for costs – Where the appellant opposed an order for costs – Where the question on appeal was complex – No order for costs made.

Family Law Act 1975 (Cth) – ss 4(1), 90AF, 93AAA, 93A(1) and 96
Jurisdiction of Courts (Family Law) Act 2006 (Cth) - s 2

Family Law Rules 2004 (Cth) - r 22.03

A.C. v V.C. (2013) FLC 93-540
Chin & Brinkhoff [2008]…