FAMILY COURT OF AUSTRALIA
| WERNHAM & CAMPAGNOLA | [2012] FamCAFC 137 |
| FAMILY LAW ─ APPEAL ─ Appeal against an interlocutory order made by the trial Judge pursuant to s 79A of the Act ─ Whether the trial Judge lacked the jurisdiction to entertain the proceedings under s 79A of the Act ─ Where the Court was not persuaded that because jurisdiction under s 79A is discharged by a single exercise of power, that is, by the making of an order dismissing an application or allowing it, and setting aside or varying previous orders under s 79, that, as a matter of law or logic, the power cannot be exercised after a series of stages or steps, at which findings of fact are made ─ Not established that the trial Judge erred in the exercise of her discretion in any of the ways which the authorities recognise could give rise to appellate intervention ─ Where the Court was not persuaded, having regard to the authorities that the trial Judge’s reasons for judgment were inadequate ─ No error of principle or substantial injustice to the appellant husband demonstrated ─ Application for leave to appeal dismissed. FAMILY LAW ─ APPEAL ─ Point of law ─ Whether the words in rule 10.13 “decision on any issue” should be read to mean a legal issue ─ Where the rule comfortably accommodates the word “issue” having application to an issue of fact or an issue of law ─ Where the rule does not purport to limit the powers of the Court, or as in this case, the trial Judge to order a discrete hearing on an issue of fact or law, or both ─ Challenge to the application of rule 10.13 rejected. FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appellant husband was wholly unsuccessful ─ Where the circumstances within s 117(2A) of the Act justify the making of an order for costs ─ Where the financial circumstances of the appellant husband do not preclude the making of a costs order ─ Where the risks of this application being unsuccessful would have been well-known to those advising the appellant husband, and no doubt communicated to him ─ Husband ordered to pay $7500 by way of costs to the respondent wife, with six months to pay such sum. |
| Family Law Act 1975 (Cth) ss 79, 79A Family Law Rules 2004 (Cth) rr 10.13, 10.14 |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Bennett and Bennett (1991) FLC 92-191 Bruce F McLaren Holdings Pty Ltd and Others v McLaren and Another (2000) FLC 93-030 De Winter and De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 House v The King (1936) 55 CLR 499 Jeeves and Jeeves [2011] FamCAFC 94 Lancer and Lancer [2008] FamCAFC 112 Lovell v Lovell (1950) 81 CLR 513 Oastler and Oastler (1993) FLC 92-390 Patching and Patching (1995) FLC… |
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- AGLC
- Wernham & Campagnola [2012] FamCAFC 137
- Case
- [2012] FamCAFC 137
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether the trial judge's jurisdiction under section 79A of the Act was correctly exercised and whether the term "decision on any issue" in rule 10.13 should be read to mean a legal issue. The court found that the trial judge did not err in her exercise of discretion and that the rule could apply to both factual and legal issues. The court also rejected the husband's challenge to the application of rule 10.13.
The court dismissed the application for leave to appeal, finding no error of principle or substantial injustice. The court held that the trial judge’s reasons for judgment were adequate and that the jurisdiction under section 79A could be exercised at various stages of the proceedings. In relation to the costs order, the court found that the husband was wholly unsuccessful and that his financial circumstances did not preclude the making of a costs order. Accordingly, the husband was ordered to pay $7,500 to the wife within six months.
The court's final orders were that the application for leave to appeal was dismissed and that the husband pay the wife's costs of and incidental to the application for leave to appeal, as assessed and agreed in the sum of $7,500 within six months.
Orders
Orders of the court
1.
That the application for leave to appeal is dismissed.
2.
That the husband pay the wife’s costs of and incidental to the application for leave to appeal filed 22 March 2012 as assessed and agreed in the sum of $7,500 within 6 months.
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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