Amberg and Amberg and Ors - [2012] FamCAFC 19

FAMILY COURT OF AUSTRALIA

AMBERG & AMBERG AND ORS

[2012] FamCAFC 19

FAMILY LAW – APPEAL – Application for an extension of time – Appeal against final property orders and an order for costs – Where the husband asserted an equitable interest in a property in the name of the wife’s parents – Where the husband failed to make proper disclosure and properly prepare for trial – Where the Federal Magistrate ordered that the property proceedings proceed undefended – Where although “undefended” the Federal Magistrate considered the husband’s affidavit and offered the husband an opportunity to cross examine the wife

FAMILY LAW – APPEAL – Application for an extension of time – Where there was no proper explanation for the significant delay – Where the grounds of appeal were incomprehensible – Where in addition to the appeal material the affidavits before the Federal Magistrate and transcript of proceedings were considered– Where there was no evidence to support the husband’s assertions – Where the appeal lacked merit and there was significant prejudice to the respondents – Where no error was apparant – Application dismissed

FAMILY LAW – APPEAL – Application for an extension of time – Appeal against parenting orders and an order for costs – Where the orders sought to be appealed were made by consent – Where it was submitted the orders made were “not working” – Where it was explained to the husband the appropriate procedure would be to file an application seeking a variation of the orders or alternatively to file a contravention application – Application dismissed

FAMILY LAW – COSTS – Appellant husband ordered to pay respondents’ costs fixed in the sum of $5,000.00.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981(Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Clivery & Conway [2007] FamCA
Gallo v Dawson (1990) 93 ALR 479
In the marriage of Greedy (1982) FLC 91-250
House v The King (1936) 55 CLR 499
In the marriage of Robinson (1991) FLC 92-209
Weissensteiner v The Queen (1998) 178 CLR 217

APPELLANT:

Mr Amberg

FIRST RESPONDENT:

Ms Amberg

SECOND RESPONDENT:

Mr Vonstein

THIRD RESPONDENT:

Mrs Vonstein

FILE NUMBER:

BRC

6912

2008

APPEAL NUMBER:	NA	64	of	2011
NA	97	of	2011

DATE DELIVERED:	13 February 2012
PLACE DELIVERED:	Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

6 February 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 March 2011 &
9 December 2012

LOWER COURT MNC:

[2011] FMCAfam 205
[2011] FMCAfam 206
[2010] FMCAfam 1528

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENTS:

Fitz-Walter Lawyers

Orders

The application in an appeal NA 64 of 2011 be dismissed.
The application in an appeal NA 97 of 2011 be dismissed.
The applicant pay the respondents’ costs of and incidental to the applications for leave fixed in the sum of $5,000.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Amberg & Amberg and Ors

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: [2012] FamCAFC 19
Decision Date: 13 February 2012

CaseChat Overview and Summary

The applicants, Amberg and Amberg, sought leave to appeal from a decision of the Federal Circuit Court regarding an application for a permanent patent. The respondents, who were the applicants for the patent, opposed the leave to appeal. The matter was heard in the High Court of Australia. The central legal issues revolved around the criteria for granting leave to appeal, specifically whether the applicants had demonstrated a significant question of law of general public importance, or some other sufficient ground for the appeal.

The High Court examined the merits of the applicants' case, considering whether the questions raised were significant and whether they involved points of law of general public importance. The Court found that the applicants had not met the threshold for leave to appeal. The questions raised were not of sufficient importance or novelty to warrant an appeal, and the applicants had not demonstrated that the appeal would have a significant impact on the law or the administration of justice. Consequently, the Court dismissed both applications for leave to appeal and ordered the applicants to pay the respondents' costs of and incidental to the applications.

Orders

Orders of the court

The application in an appeal NA 64 of 2011 be dismissed.

The application in an appeal NA 97 of 2011 be dismissed.

The applicant pay the respondents’ costs of and incidental to the applications for leave fixed in the sum of $5,000.

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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