Thompson & Berg

Case [2014] FamCAFC 73

FAMILY COURT OF AUSTRALIA

THOMPSON & BERG [2014] FamCAFC 73

FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE – RULES – Where the husband contends that the trial judge failed to properly ensure compliance with the pre-action procedures contained in the Family Law Rules 2004 (Cth) - Where the Family Law Rules prescribe the rules for proceedings in the Family Court and other courts exercising jurisdiction under the Family Law Act but not the Federal Circuit Court – Where practice and procedure of the Federal Circuit Court is to be conducted in accordance with the Federal Circuit Court Rules 2001 (Cth) – Where the Federal Circuit Court is permitted to use the Family Law Rules in relation to proceedings conducted under the Family Law Act if the Federal Circuit Court Rules are insufficient or inappropriate – Meaning of the word “insufficient” – Where pre-action procedures do not apply to proceedings in the Federal Circuit Court – Where the Federal Circuit Court Rules are sufficient – Appeal dismissed.

FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE – PROPERTY – Where husband failed to comply with directions to file a response and financial statement – Where an allegation of financial abuse was found to not meet the definition of family violence under the Family Law Act 1975 (Cth) – Where allegations of bias towards the husband from the trial judge was not supported by evidence – Where the wife entitled to seek an alteration of property interests –Appeal dismissed.

Family Law Act 1975 (Cth): ss 4AB(2)(g), 12E, 13B, 38, 75(2), 79, 81, 123, 123(1A)
Family Law Legislation Amendment (Family Violence & Other Measures) Act 2011 (Cth): s 4AB
Federal Circuit Court Act 1999 (Cth): ss 3, 42, 43, 45, 81
Federal Court of Australia Act 1976 (Cth): s 38

Family Law Rules 2004 (Cth): Part 1.2, rr 1.05, 1.08, 1.09
Federal Circuit Court Rules 2001(Cth): rr 1.05, 1.06  
Federal Court Rules 2011 (Cth): r 1.21
High Court Rules 2004 (Cth)
Edgar v Greenwood [1910] VLR 137
Edwards v Noble (1971) 125 CLR 296
In the marriage of Cantarella (1976) FLC 90-056
In the marriage of Dixon (1977) FLC 90-318
In the marriage of Lamb (No 2) (1977) FLC 90-232
In the marriage of Spellson (1989) FLC 92-046
NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271
Re: Trade Practices Commission v Milreis Pty Ltd & Ors: Application by Thompsen Publications (Australia) Pty Ltd (1979) 18 ALR 7

Rubie & Rubie (1991) FLC 92-253
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542
Sheldon & Weir (No. 2) [2010] FamCA 449
Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel Alley Cat (1992) 36 FCR 129
Vakauta v Kelly (1989) 167 CLR 568

APPELLANT:  Mr Thompson
RESPONDENT: Ms Berg
FILE NUMBER: SYC 3691 of 2011
APPEAL NUMBER:

EA

EA

151

18

of

of

 2013
2014
DATE DELIVERED: 2 May 2014
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney

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AGLC
Thompson & Berg [2014] FamCAFC 73
Case
[2014] FamCAFC 73
Decision Date

CaseChat Overview and Summary

The case involved an appeal by the husband against decisions made by Judge Walker and subsequent orders made by the court. The wife sought the dismissal of the appeal and the enforcement of an order for the husband to pay her costs. The dispute was heard in the Family Court of Australia. The husband sought the provision of a transcript and a stay of the orders made by Judge Walker, which the court had previously refused. The legal issues before the court were whether the husband's application for a transcript should be granted, whether a stay of the orders should be granted, and whether the orders made by Judge Walker should be upheld.

The court dismissed the husband's application for a transcript, finding that it was not necessary for the determination of the appeal. The court also found that the husband had not demonstrated any exceptional circumstances that would warrant a stay of the orders. The court held that the orders made by Judge Walker were appropriate and in the best interests of the parties. The court found that the husband's appeal was without merit and dismissed it. The court ordered that the husband pay the wife's costs of and incidental to the appeals, such costs to be agreed or, failing agreement, assessed.

The court's decision was based on a thorough analysis of the evidence and the applicable law. The court found that the husband had not provided sufficient grounds for the provision of a transcript or for a stay of the orders. The court also found that the orders made by Judge Walker were reasonable and in the best interests of the parties. The court's decision was final and binding on the parties. The husband was ordered to pay the wife's costs of and incidental to the appeals, such costs to be agreed or, failing agreement, assessed.

Orders

Orders of the court

1.

The appellant’s application in an appeal filed on 18 March 2014 seeking the provision of transcript be dismissed.

2.

The appeal EA 18 of 2014 against the refusal to grant a stay of the orders of Judge Walker be dismissed.

3.

The appeal EA 151 of 2013 against the orders of Judge Walker made on

26 September 2013 be dismissed.

4.

The appellant husband pay the respondent wife’s costs of and incidental to the appeals, such costs to be agreed or, failing agreement, assessed.

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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