VEGA & RIGGS - [2015] FamCA 797

FAMILY COURT OF AUSTRALIA

VEGA & RIGGS

[2015] FamCA 797

FAMILY LAW – PROPERTY – Where the wife filed an application in the Supreme Court of NSW for an order pursuant to s 66G Conveyancing Act 1919 (NSW) – Whether there are extant proceedings under the Family Law Act 1975 (Cth) – Where the issue arises as to whether the Supreme Court has jurisdiction to hear the s 66G application – Where an application to transfer the family law proceedings to the Supreme Court is dismissed and the husband’s s 44(3) application is expedited.

s 109 of The Constitution
Family Law Act 1975 (Cth)
Conveyancing Act (NSW)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

Ex parte McLean (1930) 43 CLR 472
LL Pty Limited & Dawson & Ors [2015] FamCA 709
Rennie & Higgon (1981) FLC 91-087
Re Wakim: Ex Parte McNally (1999) 198 CLR 511
Tansell and Tansell (1977) FLC 90-307
The marriage of Slater (1995) 10 FamLR 381
Vance and Vance (1978) FLC 90-522
Victoria v The Commonwealth (1937) 58 CLR 618

APPLICANT:

Mr Vega

RESPONDENT:

Ms Riggs

FILE NUMBER:

SYC

3110

2015

DATE DELIVERED:

23 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livingstone

SOLICITOR FOR THE APPLICANT:

MCW Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Maurice

SOLICITOR FOR THE RESPONDENT:

Pigott Stinson Lawyers

Orders

The husband’s application for interim order 4 filed by the husband on 15 May 2015 be dismissed.
The wife’s application filed 14 September 2015 be dismissed.
The husband’s application pursuant to s 44(3) Family Law Act 1975 (Cth) for leave to be granted to institute proceedings for final orders in accordance with his application filed 15 May 2015 be listed for hearing at 10.00 am on 2 October 2015.
On or before 4.00pm on 29 September 2015 the wife file and serve a financial statement and if she chooses any further affidavit she seeks to rely upon at the hearing of the s 44(3) application.
Both parties’ costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vega & Riggs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3110 of 2015

Mr Vega

Applicant

And

Ms Riggs

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The husband has filed an application seeking leave under s 44(3) Family Law Act 1975 (Cth) (“the Act”) to proceed with a property settlement application. That application awaits a hearing date. The wife opposes the husband’s application for leave under s 44(3) of the Act.
The matter was originally listed before me today to deal with the husband’s application for an order restraining the wife from continuing proceedings under s 66G of the Conveyancing Act 1919 (NSW) in the Supreme Court of NSW for the sale of their property at Suburb…

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 VEGA & RIGGS

Details

AGLC: VEGA & RIGGS [2015] FamCA 797
Case: [2015] FamCA 797
Decision Date: 23 September 2015

CaseChat Overview and Summary

In the matter of *VEGA & RIGGS*, heard by Watts J, the dispute concerned applications made by both the husband and the wife in family law proceedings. The husband sought an interim order and leave to institute proceedings for final orders, while the wife also filed an application.

The court was required to determine whether to grant the husband's application for an interim order and his application for leave to institute proceedings for final orders. Additionally, the court had to consider the wife's application, the nature of which is not specified beyond its filing date.

Watts J dismissed the husband's application for an interim order and the wife's application. However, the husband's application for leave to institute proceedings for final orders pursuant to s 44(3) of the *Family Law Act 1975* (Cth) was listed for a future hearing. The court also ordered the wife to file and serve a financial statement and any further affidavits she intended to rely upon by a specified date prior to the hearing of the s 44(3) application. Costs for both parties were reserved.

Orders

Orders of the court

The husband’s application for interim order 4 filed by the husband on 15 May 2015 be dismissed.

The wife’s application filed 14 September 2015 be dismissed.

The husband’s application pursuant to s 44(3) Family Law Act 1975 (Cth) for leave to be granted to institute proceedings for final orders in accordance with his application filed 15 May 2015 be listed for hearing at 10.00 am on 2 October 2015.

On or before 4.00pm on 29 September 2015 the wife file and serve a financial statement and if she chooses any further affidavit she seeks to rely upon at the hearing of the s 44(3) application.

Both parties’ costs are reserved.

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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