Thomas & Anthony (No 2)

[2011] FamCAFC 244

FAMILY COURT OF AUSTRALIA

THOMAS & ANTHONY (NO. 2) [2011] FamCAFC 244

FAMILY LAW – APPEAL – Application for leave to appeal against interlocutory orders of a Family Court Judge – Financial proceedings – Assertion made on behalf of the appellant husband that the trial Judge had erred in obliging him to deposit, or cause to be deposited, all bonus payments received by him from his employment, into an account from which a number of expenses, about which the appellant husband has not complained to this Court, were to be met, with any surplus over and above those payments being retained in the account – Not demonstrated that the trial Judge erred in principle or that there as was any error of discretion, to the making of an interlocutory injunction with respect to the appellant husband’s bonus payment – Not established on the limited findings of fact which the trial Judge was able to make, that his Honour erred in the exercise of his discretion in making the order he did, in the terms in which he did – Where the trial Judge’s undisturbed findings as to the appellant husband’s available net surplus of funds from other remuneration received by him suggests that, in the absence of good reasons for doing so, only bonus payments over and above $547,300.00 per annum should remain invested until the conclusion of the proceedings, unless the parties agree otherwise – Where it was for the appellant husband to seek an order to have access to the Z property given that legal ownership was with the respondent wife – Where the correspondence between solicitors for the parties would have left a reasonable person in the appellant husband’s position in no doubt that he would receive no indulgence or other consideration from the respondent wife to which he was not lawfully entitled – Where the trial Judge’s order, with respect to the Z property, did no more than reflect the legal position – Where the appellant husband failed to establish either an error of principle and/or substantial injustice – Application for leave to appeal dismissed

FAMILY LAW – COSTS – Where the appellant husband’s application for leave to appeal was wholly unsuccessful – Where the obstacles to success of the application would, or should, have been readily apparent to the appellant husband and those advising him – Where the appellant husband is to pay the respondent wife’s costs of and incidental to the appellant husband’s application, including reserved costs, as agreed or assessed on a party and party basis

Family Law Act 1975 (Cth) s 93A
Child Support (Assessment) Act 1989 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Jeeves & Jeeves [2011] FamCAFC 94
Rutherford and Rutherford (1991) 105 FLR 41; (1991) 15 Fam LR 1; (1991) FLC 92-255

APPELLANT: Mr Thomas

RESPONDENT: Ms Anthony

FILE NUMBER: SYC 4283 of 2010

APPEAL NUMBER: EAA 57 of 2011

DATE DELIVERED: 23 December 2011

PLACE DELIVERED: Sydney