Thompson & Berg - [2016] FamCAFC 20

FAMILY COURT OF AUSTRALIA

THOMPSON & BERG

[2016] FamCAFC 20

FAMILY LAW – APPEAL – Appeal against orders made for enforcement of final property orders – Further appeal against orders refusing a stay of the enforcement orders made – Appellant seeking to re-litigate issues that have previously been finally determined – Whether trial judge erred in the exercise of the discretion to make enforcement orders – No error demonstrated – Where appeal against refusal of stay of enforcement orders rendered nugatory by reason of there existing no merit in the appeal against enforcement orders – Costs – Where justifying circumstances exist for order for costs in favour of respondent.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Harris Re: Banaco Pty Ltd (No 2) (1981) FLC 91-100
Metwally v University of Wollongong (1985) 60 ALR 68
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
RK & SK (2010) FamCAFC 142
Rieck & Rieck (1981) FLC 91-067
Stowe & Stowe (1981) FLC 91-027
Thompson & Berg [2014] FamCAFC 73

APPELLANT:

Mr Thompson

RESPONDENT:

Ms Berg

FILE NUMBER:

SYC

3691

2011

APPEAL NUMBERS:	EA	91	of	2015
EA	144	of	2015

DATE DELIVERED::

19 February 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace & Kent JJ

HEARING DATE:	19 February 2016
LOWER COURT JURISDICTION:	Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:	28 May 2015
LOWER COURT JUDGMENT DATE:	20 August 2015

LOWER COURT MNC:	[2015] FCCA 1398
LOWER COURT MNC:	[2015] FCCA 2250

REPRESENTATION

FOR THE APPELLANT:

In person

FOR THE RESPONDENT:

In person

Orders

The appeals EA 91 of 2015 and EA 144 of 2015 be dismissed.
The husband pay the wife’s costs of and incidental to the appeals, in the sum of $1,500 or such greater sum to be assessed. Such sum to be paid from the husband’s share of any sale proceeds of the property in the NSW Highlands (the subject of the order made on 28 May 2015) and if not satisfied from those proceeds, then to be paid to the wife 28 days after the settlement of the sale of the property in the NSW Highlands.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Berg 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 SYDNEY

Appeal Numbers: EA 91 of 2015 and EA 144 of 2015
File Number: SYC 3691 of 2011

Mr Thompson

Appellant

And

Ms Berg

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Kent J

In my opinion these appeals ought be dismissed for the reasons which follow.
Whilst the divorce of the parties to these appeals became final on 3 September 2011, it is convenient to refer to them individually in these Reasons where necessary as “the husband” and “the wife” respectively.
As long ago as September 2008 the parties finally separated after a marriage of…

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 Thompson & Berg

Details

AGLC: Thompson & Berg [2016] FamCAFC 20
Case: [2016] FamCAFC 20
Decision Date: 19 February 2016

CaseChat Overview and Summary

In Thompson & Berg, the appellant, the husband, appealed against orders enforcing final property settlement orders, and subsequently appealed against orders refusing a stay of the enforcement orders. The dispute involved the enforcement of property settlement orders made following the separation of the parties. The Family Court of Australia was tasked with deciding whether the trial judge erred in making the enforcement orders and whether the orders refusing a stay of enforcement were correctly made. The court was also required to determine whether the appellant's attempts to re-litigate issues that had already been finally determined were justified.

The court found that there was no error demonstrated in the trial judge's exercise of the discretion to make the enforcement orders. The appellant had not shown that the trial judge's decision was flawed. Furthermore, the appeal against the refusal of the stay of enforcement orders was rendered nugatory by the lack of merit in the appeal against the enforcement orders. The court held that the appellant was attempting to re-litigate issues that had already been finally determined, and there were no justifying circumstances for such conduct. Therefore, the appeals were dismissed, and the husband was ordered to pay the wife's costs of and incidental to the appeals, in the sum of $1,500 or such greater sum to be assessed. These costs were to be paid from the husband's share of any sale proceeds of the property in the NSW Highlands or, if not satisfied from those proceeds, then to be paid to the wife 28 days after the settlement of the sale of the property in the NSW Highlands.

Orders

Orders of the court

1. The appeals EA 91 of 2015 and EA 144 of 2015 be dismissed.

2. The husband pay the wife’s costs of and incidental to the appeals, in the sum of $1,500 or such greater sum to be assessed. Such sum to be paid from the husband’s share of any sale proceeds of the property in the NSW Highlands (the subject of the order made on 28 May 2015) and if not satisfied from those proceeds, then to be paid to the wife 28 days after the settlement of the sale of the property in the NSW Highlands.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.