Barbey & Tuttle

[2013] FamCAFC 44

FAMILY COURT OF AUSTRALIA

BARBEY & TUTTLE [2013] FamCAFC 44

FAMILY LAW – APPEAL – PROPERTY – Appeal from a discretionary decision of a Federal Magistrate dismissing an application under r 16.05 (Federal Magistrates Court Rules 2001) to set aside final property orders made in default of the appellant wife’s appearance – Where the property proceedings were initiated by the defaulting appellant wife – Whether the Federal Magistrate erred in the weight given to the relevant considerations in the exercise of his discretion – Where the appellant argued the Federal Magistrate erred by giving too much weight to the consideration of adequate excuse for failure to appear and failing to have proper regard to the consideration of an arguable case alternative to the orders made – Where the detailed chronology and evidence before the Federal Magistrate indicated the wife had failed to participate at all in the proceedings, both by failing to appear and failing to comply with orders to advance her application towards determination – Where there was no reasonable explanation for the wife’s failure to appear or participate in the proceedings – Whether the Federal Magistrate erred in not allowing oral submissions from the appellant’s counsel on the issue of arguable case – Where the absence of oral submissions did not prevent consideration of the arguable case point – Where the onus was on the wife to establish an arguable case on the basis of evidence and she failed to do so – Where it was not suggested before the Federal Magistrate or on appeal that the orders were incorrect or manifestly unjust – Where his Honour correctly found that an order for costs could not satisfactorily address the prejudice to the respondent husband if the orders were to be set aside – Where the Federal Magistrate applied correct legal principles in the exercise of an unfettered discretion – No appealable error demonstrated – Appeal dismissed.

FAMILY LAW – COSTS – Where having regard to s 117(2A) considerations including the wife’s conduct in relation to the proceedings, that the proceedings were necessitated by her failure to comply with previous orders, and that she was wholly unsuccessful, the Court is satisfied the discretion to order costs ought be exercised – Appellant ordered to pay the respondent’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules 2001 (Cth) r 16.05

Allesch v Maunz (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Clifford & Mountford [2006] FMCAfam 450

APPELLANT: Ms Barbey

RESPONDENT: Mr Tuttle

FILE NUMBER: BRC 1523 of 2011

APPEAL NUMBER: NA 35 of 2012

DATE DELIVERED: 22 March 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May, Murphy & Kent JJ

HEARING DATE: 22 February 2013

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 2 April 2012

LOWER COURT MNC: [2012] FMCAfam 299

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Shoebridge

SOLICITOR FOR THE APPELLANT: John Woulfe Solicitors

COUNSEL…