Spoke & Spoke - [2008] FamCAFC 59

FAMILY COURT OF AUSTRALIA

SPOKE & SPOKE

[2008] FamCAFC 59

FAMILY COURT – APPEAL – whether the trial judge erred in refusing an injunction restraining the sale of the former matrimonial home – whether the trial judge erred in ordering an interim property settlement – whether the appellant was denied procedural fairness – appeal allowed

FAMILY COURT – APPEAL – application for leave to appeal – whether in making interim orders for spousal maintenance and the payment of outgoings on the former matrimonial home the trial judge denied the appellant procedural fairness – application granted – appeal allowed

FAMILY LAW - COSTS – Costs Certificate granted to the appellant

Family Law Act1975 (Cth) – s114

Federal Proceedings (Costs)Act 1981(Cth) – s 9

Aldred and Aldred (No.2) (1985) FLC 91-602
Bearup v Bearup (1993) FLC 92-412
Bennett v Bennett (1992) FLC 92-191
Brazel v Brazel (1984) FLC 91-568
Guthrie v Guthrie (1995) FLC 92-647
Harris v Harris (1993) FLC 92-378
Maday v Maday (1985) FLC 91-636
Stowe v Stowe (1981) FLC 91-027

APPELLANT:

MR SPOKE

RESPONDENT:

MS SPOKE BY HER CASE GUARDIAN MR C

FILE NUMBER:

MLF

1437

2006

APPEAL NUMBER:

SA
SA

78
79

of
of

2007
2007

DATE DELIVERED:

8 May 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Warnick, May, Boland JJ

HEARING DATE:

12 February 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 July 2007

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr St John SC

SOLICITOR FOR THE APPELLANT:

Dawes & Vary Pty Ltd Lawyers

ADVOCATE FOR THE RESPONDENT:

Mr C (by telephone)

Orders

That the appeal in relation to paragraphs 9 to 11 of the orders made on 27 July 2007 be allowed.
That the application for leave to appeal be granted and the appeal in relation to paragraphs 7 and 8 of the orders made on 27 July 2007 be allowed.
That paragraphs 7 to 11 of the orders made on 27 July 2007 be set aside.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant in relation to the appeals from the orders made 27 July 2007 which were the subject of the Full Court judgment delivered 8 May 2008.

IT IS NOTED that publication of this judgment under the pseudonym Spoke & Spoke is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 78 of 2007 and SA 79 of 2007
File Number: MLF 1437 of 2006

MR SPOKE

Appellant

And

MS SPOKE

Respondent

REASONS FOR JUDGMENT

Introduction

The appeal by the husband concerns orders made by Watt J on 27 July 2007. In…

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 Spoke & Spoke

Details

AGLC: Spoke & Spoke [2008] FamCAFC 59
Case: [2008] FamCAFC 59
Decision Date: 8 May 2008

CaseChat Overview and Summary

Spoke & Spoke was an appeal from the Family Court to the Full Court of the Federal Court of Australia. The appellant, a husband, appealed against certain orders made by the trial judge in relation to the parties' former matrimonial home and interim spousal maintenance and outgoings. The husband argued that the trial judge erred in refusing to grant an injunction preventing the sale of the home, in ordering an interim property settlement, and in denying him procedural fairness in making interim orders for spousal maintenance and the payment of outgoings on the former matrimonial home.

The Full Court found that the trial judge had erred in refusing to grant an injunction restraining the sale of the former matrimonial home, as the husband had demonstrated a credible case that the sale would cause him significant hardship. The Full Court also found that the trial judge had erred in ordering an interim property settlement without proper consideration of the husband's submissions. In relation to the husband's claim of procedural unfairness, the Full Court found that the trial judge had failed to give the husband an adequate opportunity to present his case in relation to the interim orders for spousal maintenance and outgoings. The Full Court allowed the appeal in relation to these orders.

The Full Court also granted the husband's application for leave to appeal and allowed the appeal in relation to the interim orders for spousal maintenance and outgoings. The Full Court set aside the orders made by the trial judge and granted the husband a costs certificate under the Federal Proceedings (Costs) Act 1981. The husband was awarded costs for the appeals from the orders made on 27 July 2007 which were the subject of the Full Court judgment delivered on 8 May 2008.

Orders

Orders of the court

That the appeal in relation to paragraphs 9 to 11 of the orders made on 27 July 2007 be allowed.

That the application for leave to appeal be granted and the appeal in relation to paragraphs 7 and 8 of the orders made on 27 July 2007 be allowed.

That paragraphs 7 to 11 of the orders made on 27 July 2007 be set aside.

That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant in relation to the appeals from the orders made 27 July 2007 which were the subject of the Full Court judgment delivered 8 May 2008.

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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