Wernham & Campagnola

[2012] FamCAFC 137

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…