Woodhurst and Rubbens (No 2) - [2016] FamCA 786

FAMILY COURT OF AUSTRALIA

WOODHURST & RUBBENS (NO 2)

[2016] FamCA 786

FAMILY LAW – STAY APPLICATION – Where the wife seeks a stay of orders requiring the interim distribution of an equal sum of money to each party from an account pending her appeal against such order – Where the wife’s appeal would not be rendered nugatory by dismissal of her stay application – Where at final trial the wife seeks to prove her entitlement to more money than that to be disbursed – Where the husband currently has exclusive legal interest in that money – Where the husband sought a Thirty Party Debt Notice enforcing payment out of the money – Where the Registrar could instead sign instructions on the wife’s behalf under s 106A of the Act – Ordered Wife’s stay application dismissed – Ordered Registrar empowered under s 106A for the purposes of implementing the order

Family Law Act 1975 (Cth), Part VIII
Family Law Rules 2004 (Cth), rr 20.31, 20.32 , 20.33

Australian Coal & Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621
Federal Commissioner of Taxation v Myer Emporium (No. 1) (1986) 160 CLR 220
Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No. 1) (1986) 161 CLR 681

Johnson v Johnson (2000) 201 CLR 488
Marriage of Bevan (1994) 19 Fam LR 35
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Woodhurst

RESPONDENT:

Mr Rubbens

FILE NUMBER:

SYC

471

2016

DATE DELIVERED:

9 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

9 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Knox SC

SOLICITOR FOR THE APPLICANT:

Rebekah Dorter Family Law

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

The Application in a Case filed by the wife on 7 September 2016 is dismissed.

The husband’s application for the issue of a Third Party Debt Notice is dismissed and the Third Party Debt Notice filed on 2 September 2016 is discharged.

The Application in a Case filed by the wife on 2 September 2016 is dismissed.

For the purposes of implementation of Order 2 made on 11 August 2016 (as amended on 29 August 2016) the Registrar of the Family Court of Australia (Sydney Registry) is empowered to execute all necessary documents on behalf of the wife pursuant to s 106A of the Family Law Act 1975 (Cth).

The wife shall pay the husband’s costs of and incidental to the interim hearing conducted today on a party/party basis in the sum agreed or assessed, payment of which is suspended until the final trial of the parties’ respective applications for property settlement pursuant to Part VIII under the Family Law Act 1975 (Cth).

NOTATION

(A)The parties do not require the publication of reasons for Order 5 hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Woodhurst & Rubbens (No 2) has been approved by the Chief Justice pursuant to s…

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.

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Details

Case: [2016] FamCA 786
Decision Date: 9 September 2016

CaseChat Overview and Summary

In *Woodhurst and Rubbens (No 2)*, Austin J of the Family Court of Australia considered applications by the wife and the husband concerning property settlement and related matters. The wife had filed two applications in a case, one on 7 September 2016 and another on 2 September 2016. The husband had also filed an application for the issue of a Third Party Debt Notice on 2 September 2016.

The court was required to determine the fate of the wife's applications and the husband's application for a Third Party Debt Notice. Additionally, the court needed to consider the implementation of a previous order made on 11 August 2016, as amended on 29 August 2016, and the question of costs.

Austin J dismissed the wife's applications filed on both 7 September 2016 and 2 September 2016. The husband's application for a Third Party Debt Notice was also dismissed, and the notice itself was discharged. The court further ordered that the Registrar of the Family Court of Australia (Sydney Registry) be empowered to execute all necessary documents on behalf of the wife for the implementation of the earlier order, pursuant to s 106A of the *Family Law Act 1975* (Cth). The wife was ordered to pay the husband's costs of the interim hearing on a party/party basis, with payment suspended until the final trial of the property settlement applications. The parties did not require the publication of reasons for the costs order.

Orders

Orders of the court

The Application in a Case filed by the wife on 7 September 2016 is dismissed.

The husband’s application for the issue of a Third Party Debt Notice is dismissed and the Third Party Debt Notice filed on 2 September 2016 is discharged.

The Application in a Case filed by the wife on 2 September 2016 is dismissed.

For the purposes of implementation of Order 2 made on 11 August 2016 (as amended on 29 August 2016) the Registrar of the Family Court of Australia (Sydney Registry) is empowered to execute all necessary documents on behalf of the wife pursuant to s 106A of the Family Law Act 1975 (Cth).

The wife shall pay the husband’s costs of and incidental to the interim hearing conducted today on a party/party basis in the sum agreed or assessed, payment of which is suspended until the final trial of the parties’ respective applications for property settlement pursuant to Part VIII under the Family Law Act 1975 (Cth).

NOTATION

(A) The parties do not require the publication of reasons for Order 5 hereof.

Background

Background to the litigation

Full text does not contain this section.

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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