BALENI & NOWENYU - [2015] FamCAFC 91

FAMILY COURT OF AUSTRALIA

BALENI & NOWENYU

[2015] FamCAFC 91

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – Where the wife seeks to appeal certain final orders for property settlement – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where both parties are self-represented – Where no application for costs was made by either of them and r 22.53 applies.

Family Law Act 1975 (Cth) – ss 79(2) and 79(4)(na)

Family Law Rules 2004 (Cth) – r 22.53

APPELLANT:

Ms Baleni

RESPONDENT:

Mr Nowenyu

FILE NUMBER:

DGC

2658

2012

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

21 May 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

17 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 April 2014

LOWER COURT MNC:

[2014] FCCA 547

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Order

The appeal be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 31 of 2014
File Number: DGC 2658 of 2012

Ms Baleni

Appellant

And

Mr Nowenyu

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 3 September 2014 Ms Baleni (“the wife”) appeals against certain of the orders for property settlement made by Judge Curtain of the Federal Circuit Court of Australia on 11 April 2014. Mr Nowenyu (“the husband”) opposes the appeal.
In summary the orders subject to challenge provided for the husband to transfer to the wife his interest in the former matrimonial home at B, for the wife to take over the payment of the mortgage loan and the rates, taxes and other outgoings in relation to that home, for the husband to deliver certain documents and chattels to the wife, for the wife to pay outstanding school fees for the child of the marriage, and for each party to otherwise retain the assets that they have.

Background

The wife was born overseas in 1975, and thus was aged 39 years at the time of the hearing before the trial judge.
The husband was also born overseas in 1966, and thus was aged 47 years at the time of the hearing before the trial judge.
The parties commenced cohabitation in around 2000 and they married in the United Kingdom in 2003. They ultimately migrated to Australia in 2008 or 2009 with their daughter A who was born in 2004.
In July 2011 the husband’s two children from a previous relationship aged respectively 19 years and 17 years at the time of the hearing before the trial judge migrated to Australia from the United Kingdom to live with the parties.
The parties separated in May or July 2012.

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 BALENI & NOWENYU

Details

AGLC: BALENI & NOWENYU [2015] FamCAFC 91
Case: [2015] FamCAFC 91
Decision Date: 21 May 2015

CaseChat Overview and Summary

The appeal before the court involved a dispute between Baleni and Nowenyu concerning certain final orders for property settlement. The wife sought to appeal these orders, which had been made in the Family Court. The appeal was conducted without the benefit of legal representation, with both parties acting in a self-represented capacity. The central issue for the court was to determine whether the wife's appeal had any merit, specifically focusing on the grounds she raised against the final orders. The court was also required to consider the appropriate costs order in light of the parties' self-represented status and the absence of any application for costs by either party.

The court found that there was no merit in any of the grounds of appeal raised by the wife. The wife's arguments were not substantiated by evidence or law, and the court was satisfied with the reasoning and findings of the primary judge. Consequently, the appeal was dismissed. In relation to the costs, the court noted that both parties were self-represented and that no application for costs had been made by either party. The court applied rule 22.53 of the Family Law Rules 2004 (Cth), which provides for the court to order that each party bear their own costs of the appeal. Given the circumstances, the court found it appropriate to make such an order.

The court dismissed the wife's appeal and ordered that each party bear their own costs of the appeal. The reasoning of the primary judge was upheld, and the final orders for property settlement were confirmed. The absence of a costs application and the self-represented status of both parties led to the application of rule 22.53, resulting in each party being responsible for their own costs.

Orders