Beidenhope and Cantanor - [2012] FamCAFC 82

FAMILY COURT OF AUSTRALIA

BEIDENHOPE & CANTANOR

[2012] FamCAFC 82

FAMILY LAW ─ APPEAL ─ Application in an appeal by wife for dismissal of Husband’s Notice of Appeal for want of prosecution ─ Where as a matter of natural justice, the husband had every reasonable opportunity to appear before the Court in person, by email, or by telephone in opposition to the wife’s application that his application for leave to appeal should be dismissed ─ Where the husband has done nothing to prosecute the proposed appeal ─ Husband’s Notice of Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the husband’s inactivity has placed the wife in the position where she has incurred very considerable costs of a solicitor and client nature, a substantial part of which may well not be covered by an award of party and party costs ─ That the appellant husband pay the respondent wife’s costs of and incidental to the wife’s Application in an Appeal and the husband’s appeal on an indemnity basis.

Family Law Act 1975 (Cth) Part VIII, s 117(2A)
Family Law Rules 2004 (Cth), r 19.08

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248
Rutherford and Rutherford (1991) FLC 92-255

APPELLANT:

Mr Beidenhope

RESPONDENT:

Ms Cantanor

FILE NUMBER:

BRC

117

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

30 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Coleman, Strickland & Murphy JJ

HEARING DATE:

30 May 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 August 2011

LOWER COURT MNC:

[2011] FamCA 669

REPRESENTATION

COUNSEL FOR THE APPELLANT:

No appearance by or on behalf of the appellant

SOLICITOR FOR THE APPELLANT:

No appearance by or on behalf of the appellant

COUNSEL FOR THE RESPONDENT:

Dr Mark Sayers

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

That the husband’s Notice of Appeal filed 22 September 2011 be dismissed.
That the appellant husband pay the respondent wife’s costs of and incidental to the wife’s Application in an Appeal filed 16 May 2012 and the appeal on an indemnity basis.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 73 of 2011

File Number: BRC 117 of 2010

Mr Beidenhope

Appellant

And

Ms Cantanor

Respondent

REASONS FOR JUDGMENT

coleman j

By Notice of Appeal filed 22 September 2011, Mr Beidenhope (“the husband”), sought leave to appeal against interlocutory orders made by Forrest J on 30 August 2011 in proceedings for settlement of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) between the husband and Ms Cantanor (“the wife”). Forrest J’s orders of 30 August 2011 provided that the husband’s application…

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 Beidenhope and Cantanor

Details

AGLC: Beidenhope and Cantanor [2012] FamCAFC 82
Case: [2012] FamCAFC 82
Decision Date: 30 May 2012

CaseChat Overview and Summary

The parties involved in this case are Beidenhope (the husband) and Cantanor (the wife). The nature of the dispute is related to a family law appeal, where the wife has applied for the dismissal of the husband's Notice of Appeal for want of prosecution. The case was heard in the relevant court of appeal. The legal issues the court had to decide were whether the husband had adequately prosecuted his appeal and if he should be held responsible for the costs incurred by the wife due to his inactivity.

The court found that the husband had not taken any steps to prosecute the proposed appeal, despite having multiple opportunities to do so through various means such as in-person appearances, email, or telephone. The court held that it was a matter of natural justice for the husband to have the chance to oppose the wife's application, which he failed to do. As a result, the court dismissed the husband's Notice of Appeal. Additionally, the court considered the significant costs the wife had incurred due to the husband's inactivity and ruled that he should pay the wife's costs of and incidental to the application and appeal on an indemnity basis.

In summary, the court dismissed the husband's Notice of Appeal for want of prosecution and ordered him to pay the wife's costs on an indemnity basis. The court found that the husband had not made any efforts to prosecute his appeal, despite being given reasonable opportunities to do so. The wife's application for dismissal of the appeal was granted, and the court held the husband responsible for the costs she incurred as a result of his inactivity.

Orders

Orders of the court

That the husband’s Notice of Appeal filed 22 September 2011 be dismissed.

That the appellant husband pay the respondent wife’s costs of and incidental to the wife’s Application in an Appeal filed 16 May 2012 and the appeal on an indemnity basis.

Background

Background to the litigation

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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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